Legal Q&A: Migrant workers

Employers are only just getting to grips with the new points-based system (PBS) that governs people from outside the European Economic Area (EEA) working in the UK, yet home secretary Jacqui Smith announced that Tiers 1 and 2 of the PBS are now to be tightened.

Q In what way are the immigration rules being tightened?

A From 1 April, the government will strengthen the resident labour market test for Tier 2 skilled jobs (previously positions that required work permits) under the PBS so that employers must advertise jobs to resident workers through Jobcentre Plus before they can bring in a worker from outside Europe.

Employers will also be required to use each shortage occupation list to trigger skills reviews that focus on training resident workers for these occupations. This aims to make the UK less dependent on migration for the future.

The qualifications and salary required for Tier 1 (general) of the PBS, which replaced the Highly Skilled Migrant Programme (HSMP), will be raised to a Masters degree and a minimum salary of £20,000.

Under HSMP, a recognised MBA alone would automatically provide the full qualifying points, but MBAs now have the same point-scoring status as other MA and MSc qualifications. However, transitional provisions mean that applicants enrolled on an eligible MBA course prior to 30 June 2008, and who submit their application within 12 months of completing the course, will receive enough points to automatically provide entry under Tier 1.

Q What does it mean for applications that are already under way?

A Provided that applications are in the hands of the Royal Mail by 31 March 2009, they will be based on the existing requirements irrespective of when the applications are processed.

Q What impact will these changes have on intra-company transfers?

A None – as long as an individual has been working overseas for the sponsoring organisation for at least six months immediately prior to transfer.

Q What right of appeal is there if applications are turned down?

A The right of appeal (both whether there is one, and the process) depends on why an application is turned down. This will be unaffected by the changes.

Q What is the likely impact of these changes for migrants and UK companies?

A Put simply, unless the migrant has a Master’s degree and a salary of at least £20,000 (previously £17,000), they will be unable to make an application to enter and work in the UK as a Tier 1 (general) migrant. The requirement of having an MA or MSc is likely to be the more significant hurdle.

If those looking to enter the UK under the Tier 1 (general) category do not fulfil these requirements, they will have one of three choices:

  • Not entering the UK

  • Acquiring the Master’s degree qualification and ensuring that their salary is sufficient

  • Applying under a separate immigration route such as one of the other Tier 1 categories (‘entrepreneur’, ‘investor’ or ‘post-study work’) or as a Tier 2 worker.

It is estimated that these changes will result in a decreased number of highly skilled migrants entering the UK under the Tier 1 (general) route – from 26,000 in 2008, to 14,000 in 2010.

As all Tier 2 jobs must be advertised through Jobcentre Plus, there may also be an increased number of UK applicants for these positions. This would make it more difficult for migrants to successfully apply for these posts, especially given that to employ a non-EEA national under Tier 2, the employer would need to be a registered sponsor and to demonstrate that no suitably qualified EEA worker has applied.

Those already in the UK under the HSMP who are seeking to extend their leave to remain in the UK will however not be affected directly by these changes.

The net effect is likely to mean fewer jobs for migrant workers and more jobs held by EEA employees.

Q Are there likely to be any further changes?

A The home secretary has asked the Migration Advisory Committee (MAC) to report on:

  • whether there is an economic case for restricting Tier 2 to shortage occupations only

  • the economic contribution made by the dependants of PBS migrants and their role in the labour market

  • what further changes there should be to the criteria for Tier 1 in 2010-11, given the changing economic circumstances.

Should the economy continue to contract and the MAC report makes further recommendations, there is every possibility that more immigration changes shall follow.

Comments are closed.