The future of business immigration law

by Laurie Anstis on February 2, 2012

Immigration minister Damian Green gave a speech today setting out the future of the government’s immigration policy.

Part of my work is as a business immigration lawyer, advising employers who want to employ non-EEA nationals, so I was interested in what the speech would have to say about business immigration.

The current position

In his speech, Damian Green reviews the government’s progress so far. The mainstream “work permit” (now Tier 2 (general)) has been made subject to a cap of 20,700 applications per year, although the number of applications is far below the level of the cap. The old highly-skilled migrant scheme (now Tier 1) has been effectively shut, with its replacement limited to a maximum of 1,000 individuals with endorsement from national professional or artistic organisations. Damian Green gave examples of those who had qualified under this new Tier 1 scheme, but if the Migrant Rights Network are to be believed, only six out of 1,000 visas have been issued – so Damian Green’s examples may be the only people who have actually qualified under the new Tier 1.

Finally, he referred to the plans to break the link between permission to work in the UK, and permission to stay in the UK, which is usually available after five years work. It looks likely that this will be restricted to those earning over a certain amount in the future.

Future plans

The MAC

As for other future plans, he said that he has asked the Migration Advisory Committee to advise on raising the skills levels required of people coming to the UK. Even now, the usual requirement is that the individual should be fulfilling a graduate-level role, although not necessarily that they should be a graduate. It may be that he plans to add in a requirement that the individual themselves holds a degree, as well as taking a graduate-level job.

He has also asked the MAC to advise on the rules on intra-company transfers, with particular reference to “sectors where a third party contracting model is used” – presumably a reference to the computing sector, where there has been controversy about foreign contractors undercutting British rates.

Finally, the MAC is to “review the case for easing the Resident Labour Market Test requirement, so that jobs for high earners do not need to be advertised here first“. If accepted, this could remove what employers see as the rather odd requirement for jobs for, say, highly-specialised computer engineers, to be advertised at a local job centre before recruiting from abroad.

Other plans

There will be “a new route for international graduate entrepreneurs, that is to say those international students who have engaged in supervised entrepreneurial activity during their university studies in the UK“.  I’m not really sure which courses would include “supervised entrepreneurial activity”, and it will be interesting to see what this route turns out to be.

Most intriguing to me are the two final proposals. First changes to the system for business and entertainment visitors – “I am looking at allowing some [people] who are more akin to visitors than workers and who do not have regular sponsors to come through the visitor route rather than having to obtain sponsorship under the points-based system.” For short-term work there is something of a grey area at the moment between the business visitor system and the full-blown point-based system applications, and clarification on this would be welcome.

Second, in respect of the difficult overlap between the human rights concept of a “right to a family life” and immigration law, he proposes to “give better Parliamentary guidance on what should be considered [by judges] in these kinds of cases in future“. Constitutionally it seems a bit odd to refer to Parliament “giving guidance” to judges, and I wonder how these proposals will eventually turn out. In the meantime, the judgment today in Gurung v Secretary of State suggests that this a problem which is troubling the appeal courts too.

 

2 comments

So does that mean there will still be a resident labour market test but not as difficult as it is now. I can’t see how allowing every job that is high salaried to be exempt from the labour market test because that goes against what the plan is, and that is to get the numbers down. Will it still be subjected to the cap system?

by liam brown on 3 February 2012 at 7:09 pm. #

It is hard to tell.

At the moment, neither the resident labour market test or the cap apply to roles earning more than £150,000 a year.

The announcement might suggest that that figure is just going to be reduced, so that the £150,000 salary figure becomes, say, £120,000. Alternatively it might just be a modest relaxation of the advertisement requirements for higher earners, with the cap still applying unless they earn more than £150,000.

by lanstis on 8 February 2012 at 7:58 pm. #