• Personal Services
• Business Services
• Immigration Appeals
• Human Rights
• European Union
• Nationality
• Illegal Working and
  Civil Penalties
• Sponsorship Registration

January 30, 2012

Have our institutions taken over the role of the UKBA?

The rug was pulled from underneath the overseas students feet when changes to the student rules came in quickly and without much notice. New students of course know what to expect and they can decide for themselves whether or not UK is the right destination for them. Many European countries have relaxed their regulations in order to encourage students but this has not, until now , been taken up in large number s because of language barriers. The real problem is for students already in the UK looking to extend their stay. The problems initially came from the changes but now it appears that institutions, universities and colleges, who rely on overseas funds have tightened up their procedures in a manner that errs on the side of caution and excludes genuine students. Clearly many do not understand the rules very well and rather than risk losing their licence they lost the student.

Take for example the case of a current student who has completed a degree and is eligible to become a post study worker. This category is due to end at some point in April (the exact date has not yet been announced). The student concerned would like to switch to post study worker status but continue to complete her Master course. This is because at the end of it she will have a period on her visa to enable her to do some work experience. She clearly meets the criteria, there are no restrictions on her continuing to study as a post study worker. In fact the UKBA have confirmed as much in writing. However the University concerned will not to allow her to do this.

Another case concerns a student whose college closed abruptly and without prior notice in the middle of the term. The college may have been suspended but the UKBA do not disclose this to the student . As it was mid term finding another college offering a course similar to the one that he had been doing was proving difficult. When he finally did he has been told by the College that before they issue a Certificate of Acceptance (CAS) he must get la letter from he UKBA confirming that he is allowed to seek a further college. Those of us who work in this area of law will know how futile such a task can be. Nor is it necessary for the college to obtain such a letter.

The English tests have also been causing a number of difficulties. Admittedly the rules are complicated at time but as a result they are being misinterpreted at times. For example a student who is issued with the CAS after April 2011 to do an NQF level 6 course must be proficient at level B2 of the CEFR. The college are able to choose their own method of assessing the language ability but often insist on a student passing an approved test.

And then there are numerous cases of downright dishonest colleges who take fees often for 12 months and if the student is refused for one reason or another they refuse to refund any fees providing a nice little earner for the crooks. There is a need for this issue to be monitored closely by officers visiting colleges.

January 23, 2012

Watering down of human rights

The Home Secretary has always been very clear about human rights law. In her view it is used to pursue useless cases (the law is an ass) and accordingly she clearly signalled the need to take an axe to what she considers are loopholes in the system. As practitioners there is always a tendency to await grand announcements of Bills (the precursor to laws being made) and then to consider the clauses and prepare for battle. This time however changes are being made quickly and without any consultation.

There is currently a rule that requires the Secretary of State to consider a number of factors before making a decision to remove a person from the UK. It is if you like the final opportunity for all the factors surrounding the case to be considered. The current law provides that the following issues( which is a non exhaustive list) have to be considered:

In the case of family members, the factors listed in paragraphs 365-368 must also be taken into account. These are:

In cases involving children the following are considered.

In considering whether to require a spouse or child to leave with the deportee the Secretary of State will take account of all relevant factors, including, as well as the following:

All the above factors would cover the human rights of a person and any compassionate or unique circumstances of the individual. The UKBA have stated that they will consider these factors anyway but that they do not want the Secretary of State to have the responsibility of considering this and that in the majority of cases these factors are irrelevant particularly as many applicants leave voluntarily. They are obviously stung by the fact that the judges in the Court of Appeal have time and time again stated that where decisions to refuse are made decisions to remove should also be made at the same time and this will require considering the factors above. The danger of removing the safeguards which consider human rights issues is that the applicant will have no safeguards from removal. Para 395C came in for that very reason. Removing it is a major step towards watering down human rights.

December 21, 2011

As Christmas approaches I am reminded by a recent speech by Reverend Jesse Jackson, the famous civil rights campaigner. He reminded us that Jesus was a peasant who was born when it was decreed by Herod that all male children would be killed, and who understood how an immigrant felt as he migrated with his family to Egypt and lived there as an immigrant from the age of 11. As an adult he castigated those selling their wares in the temple of God. Christmas is a special time to reflect on the issues that matter. A spirit of peace and forgiveness. Can I wish all my readers a very happy Christmas and a healthy and prosperous 2012.

Employers beware

In a recent decision an employer contacted the UKBA to check the status of a family member of an EU national and on the basis of what they were advised suspended the employee. The employer argued that during the suspension the employee did not have the right to work and that the employment contract was unlawful and could not be enforced. At the Employment Tribunal the employers were initially successful but on appeal the Judge re-iterated that the right of the applicant emanated from EU law which gives rights to family members and that the fact that the employer relied on what the UKBA told them did not have any bearing on the legality of the contract. A right to reside of a family member of an EU comes from the law. The UKBA issue a residence permit as evidence of an existing right.
This judgement highlights the difficulties faced by employers when making decisions which appear on the fact of it to be reasonable. With the increase in immigration raids employers are erring on the side of caution but this can result in the type of issue that this case highlights.

The cost of justice: Fees introduced for appeals

As of the 19th December fees will need to be paid for lodging appeals. Last week I wrote about this issue. The fees decided are now £140 for oral appeals and £80 for paper appeals. No cash or cheques but credit and debit cards are acceptable. Thos who do not have cards and cannot arrange payment should submit the appeal and explain this and the Tribunal will write to explain how to make a payment directly into the tribunal’s bank account.

If this system is anything like that operated by the UKBA in taking card payments then applicants are in for a miserable period ahead. The literature that accompanies the changes emphasizes the low level of fees. However like all fees introduced this is only a starting point.

Rogue traders: Colleges and their tactics

Whilst the introduction of sponsor registration was supposed to improve the system for genuine students it has proved to be a gold mine for a number of rogue colleges. A familiar story heard in our offices is of colleges who advise their students to make applications for extensions when there is not a chance that it will be successful and then pocket the full fees (often running into thousands of pounds) when applications are refused. A nice little earner for some.

December 16, 2011

Fees for appeals

Fee charges come into effect for most asylum and immigration appeals from 19 December 2011 and will include asylum, human rights and applications made under EU law. Those who want to appeal against a decision notice dated 19 December 2011 or later will be required to pay a fee. The fee proposed was £65 for a paper appeal, £125 for an oral appeal and £250 for an appeal to to the Upper Tribunal. It remains to be seen what the final figure will be. The funds can only be paid by credit card or debit card and it will be possible to pay online.

Applicants who win their cases will be able to ask a Judge to make an order for costs limited to the cost of the fee. The Judge has the discretion to grant this if it is reasonable to do so.
A further change is that applicants will need to lodge their appeals at the Tribunal in the UK. It will will no longer be possible to lodge an appeal at any of the overseas posts.
Full details will be available after the 19th December 2011

December 09, 2011

Is it time to declare an amnesty?

Recently the government has announced that biometric cards are to be extended to more categories and that the benefit of this is that it will enable employers to check the status of individuals more easily than is currently the case and it will also have the added benefit of deterring and squeezing out those who are illegal.

Illegal immigrants are nameless and faceless and accordingly when discussing them they are treated as non persons and de-humanised as a result. Where people have personal contact with individuals their opinion is often very different. The childrens author Michael Murpugo wrote Shadow which humanises the pain of being an Immigrant through his characters. There are many children of illegal immigrants unable to make progress because of the status of their parents.

The public currently believe that there are too many immigrants and that the trend should be reversed. Their views are tainted by their perception of immigrants. It is clear that most immigrants either take jobs that no one else wants to do at the lower end and those that the local population are unable to do at the higher end of the scale. The public are also barraged by the political capital that each party seeks to make about the value of immigrants. It is particularly disturbing that in an attempt to play the numbers game the benefits which can enhance the applicant and the country are discarded for unachievable political gain. The Bangladesh Caterers Award ceremony last week attended by over 1000 people was testament to the success story of the immigrant using their skills to create business opportunity.

Boris Johnson was right to speak out about the need to grant an amnesty to immigrants and to be able to collect taxes. There are more disturbing reasons for the small minority who may have criminal tendencies. Imagine this scenario. A child abuser, a violent mentally ill person, or a murderer who lives on the on the fringes of society. They are more of a danger because they are not on any radar and would not be able to be traced.

There is now sufficiently advanced technology to prevent a deluge of illegal immigrants as has happened in the past. However those who are already here need to be regularised. The fact that it is unlikely to happen is not reason enough not to discuss this openly.

December 02, 2011

Are the migrant population taking our jobs?

Recently the Daily Mail, ran a headline indicating that there has been a rise of foreign workers and the decline in the number of local workers employed. A number of employers were interviewed and it was surprising, for a paper with generally such extreme views to report its findings by in a balanced manner. Employers interviewed indicated that foreign workers have a strong work ethic which is sadly lacking in the local population. They are prepared to go the extra mile, they regard their work as being of the utmost importance and they take on tasks that others are not prepared to do. The Immigration Minister Damien Green recently indicated when justifying the reasons for maintaining the restrictions for Bulgarians and Romanians that this would “reduce employers' dependence on migrant workers, particularly for lower skilled jobs.” What tosh.

Mr Green must be living in a different planet if he thinks that if he stops the entry of lower skilled jobs that these jobs will magically be replaced by local workers. The fact that unemployment is rife has not made an iota of difference to the type of jobs local staff are prepared to do. Libby Purves in a recent article in The Times suggested that British ciitzens should take the Life in the UK test as well as migrants. It is an extrmely good idea for such a test to be introduced. Can I suggest that the test also includes some lessons on work ethic and the importance of a job other than the salary it brings? And until such time as the message gets through can employers be allowed to judge for themselves who to award jobs to. There is no right to a job. The sooner this message gets through the better.

The complex matter of being a visitor

Visitors in the past were just that. They could come to the UK to visit family, as tourists, to meet business partners or to receive medical treatment. The changes to the visitor regulations and the creation of numerous categories of visitors have made the whole business of being a visitor very complex. Imagine the scenario of a visitor wanting to enter the UK to visit family and whilst here conduct some business. He could not under the regulations in place do this. There are specific criteria for each type of visitor and a breach could have serious consequences for breach of conditions. The rules have moved from the very general to the too specific. There should be some flexibility in operating them.

November 11, 2011

Reduction of migrant numbers

Finally there is a reduction of migrant numbers…. of birds to the UK rather than human beings!!

Spouses

Following the loss of a case in the Supreme Court that declared the rise in age of marriage from 18 to 21 to be unlawful (as it was a disproportionate response to the aim of prevent forced marriages) the UKBA have introduced guidelines to enable those who made such applications between 27th November 2008 and October 2011 to seek a review of that decision using a specific form created for this purpose. Applications (which are free of charge) will only be accepted until 31st May 2012. All those in this category are advised to get their applications in as quickly as possible.

A tribute to my cousin Elaine

These last few days have been a poignant reminder to me of how short and precious life is. I received shocking news that my cousin, a healthy and fun loving girl who was passionate about life and causes and who lived life to the brim suffered a massive brain haemorrhage and following a short period in a coma she finally lost the fight yesterday. She was a migrant, not once but twice. She arrived in the UK as a young child of 3 with her parents from Kenya to start a new life in the UK and became British in every way whilst also being quintessentially Indian with a Kenyan twist.

Some years ago, she moved , again, with her daughter to a small town in Ireland to start a new life there with her new love. In this tiny picturesque town overlooking rugged mountains and an azure sea she found her home, surrounded by the local community who adopted her as family. This ability of adaptability to new countries and situations is a unique quality found in migrants. Goodbye to Elaine, a British, Indian, Kenyan, Irish much loved girl.

November 18, 2011

Taking a machete to the family route

Some time ago the Government announced that its intention to reduce numbers in all areas including the family route. Despite clear evidence that the UK has an aging population and therefore it is necessary to have an injection of younger workers who can provide taxes to support them the Government have been pressing for change in all areas. Interestingly, although the perception is that numbers in this category have been rising in actual fact statistics re-produced by the Migration Advisory Committee(MAC) in their recent report indicate that the numbers of those seeking entry under this route have been steadily dropping over the last few years.

The family route is the last bastion in the process. Introducing stringent English language requirements has certainly had an effect in reducing numbers temporarily. Now the MAC have reported on the task set by Government They were specifically asked to determine the minimum threshold to ensure that the sponsor can support their family without them becoming a burden on the State. In reaching their conclusions they the system operated in other countries was compared. The surprising conclusion is that most countries do not have a specific minimum threshold and that the yardstick used is the minimum wage or their benefits scale. In the US for example the minimum figure starts at £11400 per annum. In Demark and Australia the Sponsor are required to sign a bond which enables the Government to recoup any sums paid in benefits.

MAC have now reported to Government. It would be very unusual for the Government not to accept the recommendations of this Committee. It has concluded that the minimum threshold that a Sponsor must earn should be between £18600 and £ 25700. In setting these figures MAC acknowledges the overall success in adopting these measures as it will have the effect of disqualifying around two thirds of all applicants. The decision that is reached is made purely in economic terms. There is a tacit acknowledgment that migration issues cannot be determined solely in economic terms and it also flags up the fact that the consideration of these issues did not consider the impact of Article 8 rights.

Until now the Government have dealt with students, work permits and investors. The family route however is a very emotive issue. Families cannot be defined purely by economic indicators. If the measures that are introduced cause an imbalance applicants will take their cases to the Courts for redress. In recent times Governments have sought to take populist measures which have a short term impact but long term consequences. The machete will be aimed at the family next. It remains to be seen how bad the injury will be.

November 11, 2011

Border control fiasco

And so the battle rages on over the fact that robust checks were dispensed in certain cases. The politicians blame each other and the civil servants and the media engage in scare mongering. I have no statistics to hand but I would have thought that entry into Heathrow Airport by illegal entrants would be rare as it is accepted that it is a secure point. Those who have visas have already been checked for criminal records. Various countries are risk profiled and therefore any additional checks are conducted in advance.

In terms of EU nationals, there is in any event very little scope for checks to be made. EU applicants have a right of free movement and passports are I believe very rarely scanned. Those on a warnings index and wanted for specific offences would I suppose get in but somehow I doubt it if their entry would be through a major port.

The main issue is not whether or not there was a relaxation but whether this was done in a random fashion which would then minimise risk.

Fees for appeals

As of the 19th December fees will be introduced for appeals relating to applications to enter, vary status or remain in the UK. From this date new legislation will also come into force, which will allow appellants to pay for and lodge an appeal on-line. There are some exemptions for those on legal aid, for compassionate circumstances and where asylum seekers are receiving support.

November 03, 2011

The English language test: A tool to axe numbers?

Recently I went on an intensive course to learn Spanish and expected at the end of it at the very least to hold a very basic conversation. However whilst I now know the meaning of some words and phrases applying the correct grammar and constructing sentences which make sense is a mammoth task which I have yet to conquer. I suspect it will be many months (or even years) before I can make sense when I speak.

The rapidity with which the new rules on the English tests was introduced has at a stoke excluded many families who did not make their applications quickly enough. A language is not something that you can learn within a short period. These regulations were considered by the last Government who took the view that the changes had to be phased in and the process to do so had begun. The new Government fast tracked this process with very little interest in considering the impact of such changes.

If the rationale behind the rule was to enable communities to integrate why was there a need to rush in this manner. Is it because the purpose was to cut numbers? Obviously the reason for not stating that this was the blatant purpose was that this could fall foul of the human rights law. And the effect has been felt across the board. As well as the humble carpenter the changes have also affected businessman who do not (yet) have the luxury of a £1 million which by passes the need to take the test but could make an enormous economic contribution nevertheless but are unable to do so because of the English test.

The rules regarding the English language tests have had a further knock on effect on students. Colleges who are required to assess English when applications are made for admission rather than undertake the assessment themselves are now requiring students to provide a test result at a certain level before they consider enrolling them. And in terms of actually taking the test there are very few centres abroad that offer the test. In Pakistan the number is miniscule.

Spouses of British citizens or those who have permanent settlement status who have been married for over 4 years and are planning to return to the UK are entitled to immediate settlement if they pass the Life in the UK test. So far so good. Whilst the law provides for them to be granted permanent settlement there are no test centres abroad and now test centres in the UK are requiring proof of address in order to enrol applicants. So whilst in theory an applicant can qualify in actual fact there is no ability to do so with the exception of a few applicants.
Is all this the fallout of the changes or the grand plan?

October 13, 2011

Sledge-hammer to crack a nut?

Finally, after along wait the case of Quila was handed down on the 13th October. The case was essentially about the fact that the Home Office had in 2008 raised the age for allowing spouses to come to the UK from 18 to 21. The Rule came into effect with very little notice and applied almost immediately leaving many couples stranded abroad.

As the Judge in the case noted, this case was not to control immigration. It was to deter forced marriages. The Home Secretary commissioned a report led by Professor Hestor and a Team at Bristol University to consider the merits of raising the age of an applicant. They recommended that the age should not be raised because it would be discriminatory on racial grounds and with regard to love and arranged marriages. However it appears that the Home Secretary did not publish this report and its findings but pressed on.

A consultation paper was produced and the Home Affairs Select Committee considered the issue of forced marriages. They concluded that further evidence was required and conclusive evidence to make these wide sweeping changes. However this view was considered and rejected.

The evidence that was presented to the Court was that the proportion of people who would be affected by these changes would be small, around 3% of the total numbers or 3940 in actual numbers. The Judges took a dim view of this argument. They pointed out that regardless of percentage the number of applicants who would be affected would be in the words of the judge be “vast”. The Court set out 13 identified motives for forced marriages. Of these only one reason would be to secure entry to the UK.

There followed a second Home Affairs Select Committee report on this issue which took evidence from those who felt that the measures were helpful in preventing forced marriages and others who were against this. Still others had mixed views about this.

The Judgement concludes by stating that it is debatable whether the measures prevent or reduce forced marriages. What it does do however is to prevent a large number of unforced marriage applicants from qualifying for entry. In the words of Lord Wilson the principal judge:

“it is a sledge-hammer but she has not attempted to identify the size of the nut”

During the hearing arguments were put forward which appeared to blur the reason why the law was imposed in the first place ie to prevent forced marriages and not arranged marriages. The Judge stated that the Secretary of State cannot on one hand say that she is not doing this for the purpose of controlling immigration and then rely on laws which are based upon the right to control immigration.

The judges concluded that this increase in age without clear evidence that forced marriages would be prevented as a result was a “colossal interference” of a person’s rights. The Home Office will now need to consider the judgment and make the necessary changes.

September 22, 2011

Deciphering the Immigration Minister’s Speech

The Minister for Immigration, Damien Green delivered a speech on family migration on 15th September 2011 and in that speech outlined further areas of immigration reform. He emphasised the need for immigration to be better targeted and fairer. This article examines whether the reforms achieve this aim or indeed if this is an intention to bring net migration back down at whatever cost.

The excerpts listed below are taken from his speech and commented on.

[TIER 2 WORK PERMITS] have “been under subscribed each and every month since it was introduced. Those who predicted it couldn’t work or it would damage British businesses have been proved wrong”.

The reason that the limit has been under-subscribed is that the majority of Certificates of Sponsorship are issued for Intra-Company transfers which are exempted from restrictions following successful lobbying by this sector and support by Vince Cable, the then Minister for Business.

[STUDENTS]. “We listened carefully and ensured that the brightest students will be welcome here. But they will have to speak good English and if they are not studying at a university they wont be able to work or sponsor dependants.”

The reason why the Rules relating to work for students was relaxed was that students provide a very healthy income to colleges and therefore to the economy and the relationship with the UK that is developed lasts a lifetime and could affect foreign policy. Having bright students does not assist the economy in any way unless the students decide to stay. So the question is, what is the benefit to the UK.

[FAMILY MIGRATION]: “too often we have seen family migrants without the means to support themselves, unable and on occasion unwilling to integrate into British life.

Financial

Where is the evidence for this? Family migrants in the majority of cases end up working extremely hard and make a great success of their lives. The pockets of the unemployment or those on benefits are likely in the main to be in the categories of asylum or humanitarian protection (and even in this category unemployment claims on the benefit system are short lived). The evidence so far is that the immigrant population bring with them aspirations for betterment.

Tackling Abuse

The Immigration Minister concentrated on tackling abuse of the family route. He quoted statistics “719 who were sponsored to the UK as foreign spouses, and then quickly went on to sponsor another spouse. 19%, virtually a fifth, of these people had sponsored their new spouse within two years of being granted settlement. In actual numbers it amounts to 145 spouses out of a total of 53,147. The “evidence” was based on a small sample but used to make sweeping claims. The percentage hardly indicates that there is abuse of this category.

Attack on Family Cultural Values

“a couple should generally be able to demonstrate they have been in a relationship for a minimum of 12 months prior to being granted a visa for Leave to Remain based on marriage or partnership”.

The first question to be asked, is what does “relationship” mean in this context. Partners to arranged marriages do not have “relationships”. Asian families who are involved in arranged marriages will be particularly affected. The Immigration Minister referred to the Denmark model, which appears to be a preferred model which requires the sponsor to be resident for 15 years and for the applicant to have visited the country at least twice.

Extension of Probationary Period

“Proposing to extend the probationary period before a spouse or partner can apply for settlement from two years to five years. This will allow for additional time to integrate into British life and give us a longer period in which to test the genuineness of the relationship before permanent residence in the UK is granted on the basis of it. It will also make the route less attractive to those whose sole purpose is to gain settlement here.”

[VISIT VISAS] New evidence is often submitted on appeal which should have been submitted with the original application. Analysis of a sample of 363 allowed family visit appeals determinations received by the UK Border Agency in April 2011 shows that new evidence produced at appeals was the only factor in the Tribunals decision 63% of cases and it was an additional factor in a further 29% of cases. “The taxpayer is footing the bill for people to have a second bite of the cherry”.

Isn’t the real reason the fact that it will deprive applicants from claiming benefits for a longer period. No statistics or evidence is provided to indicate the majority of couples do not stay together. The sole purpose of these changes is to delay substantially a claim on benefits.

Cases are decided on the basis of the evidence presented. This in turn relies on the guidance that is issued to help applicants. Sometimes where a further information might have helped an application, the application is refused rather than giving the applicant an opportunity to produce it. The Tribunals then have to correct this. If there was a system asking for additional evidence where the officer is not satisfied as there used to be in the past then not only will justice be served by cases being considered properly but also it will save taxpayer funds.

[HUMAN RIGHTS] “I have established a Commission to investigate the creation of a UK Bill of rights. It is my sincere hope that the Commission will help bring some common sense back to this, admittedly a difficult, area”.

The Commission on the Bill of Rights does not propose to end Human Rights. In fact as explained in last week’s article it remit is to consider how these rights can be enhanced. True, there is a need for reform of the European Court of Human Rights. This is already taking place to a large extent. There is no grand plan to end Human Rights. To do this the UK would have to withdraw from the Convention on Human Rights and this would have significant consequences affecting its position in an international arena.

Feburary 11, 2011

Occupations that will qualify for Certificates of Sponsorship under Tier 2

Migration Advisory Committee (MAC) have issued their report which lists occupations skilled to NQF Level 4 and above.

Equivalence of qualifications of Chefs and Skilled Senior Care Workers is still under review.

Fernandes Vaz gave evidence on the issue of shortage occupations and are listed in this report.

http://www.ukba.homeoffice.gov.uk/sitecontent/documents/aboutus/
workingwithus/mac/analysis-of-the-pbs

December 21, 2010

The Immigration Cap Declared Unlawful By The Courts

On Friday finally after months of concerns by businesses and the CBI the matter reached to a head when the High Court declared unlawful the interim cap introduced on the 28th June 2010 an announced on the Home Office website rather than in Parliament. The judges expressed concern that the Secretary of State had made no secret of her intentions and in doing so acted unlawfully for attempting to “side step Parliamentary scrutiny”. The judges emphasised that the provisions were substantive changes and should have been laid before Parliament. This is the second case this year which has been thrown out after concerns were expressed about abandoning constitutional principles which have “stood for four centuries as the pillar of democracy.” The Government were warned that their decision was hasty and ill thought out. However they pressed on regardless. The public purse will pay for the legal costs and the cost of administering the changes that will need to be put in place.

The result of this decision is that all those who lost the certificates of sponsorship which had previously been issued will have the right to be granted them. The Government have indicated that they may appeal against the decision.

The Minister stated today that the UKBA lost on a technicality. This is not true. The judges expressed concern that a fundamental principle of parliamentary scrutiny in a democracy had been ignored. This can hardly be described as a technicality. Furthermore now that the interim cap has been declared unlawful the UKBA will need to implement this. They have instead stated that the plan is to introduce new rules. Watch this space for further developments

Graduate level or not: Consultation by Migration Advisory Committee(MAC)

MAC are currently consulting as requested by the Government on 2 questions:

1. What codes should be considered to be graduate level occupations for Tier 2 applications

2. How should the current list be revised to remove jobs below graduate level.

Graduate level refers to NVQ level 4. MAC will be able to specify job titles within particular industries even if the broader occupations are not skilled. Interestingly they have identified factors that will be considered to include:

This call for evidence is critically important for restaurants and care homes in particular where formal qualifications are less important than skills.

The deadline for submissions is 21st January 2011.

July 14, 2010

The 2 Immigration Caps

On the 28th June 2010 the Home Secretary announced that the Government intended to introduce an annual immigration cap to take effect in April 2011. However in the meantime in order to prevent the sudden rise in applications, a temporary cap has been introduced which come into effect on 19th July.

This article will look at both caps. Both caps are only limited to Tier 1 (General) applicants and to Tier 2 applicants. It excludes Ministers of Religion, Sports Persons and Post Study Workers. Intra Company Transfers are not included in the temporary cap and views are sought on whether they should be included in a permanent cap.

INTERIM (TEMPORARY) CAP

This took effect on 19/07/2010 and runs until 31st March 2011, when the permanent cap will come in force.

There are 3 aspects:

1. A limit will be introduced on a number of applications which will be granted under Tier 1. This will be decided on a month to month basis and the limit will be published on the Home Office website. Once the cap has been reached the excess numbers will be rolled over to the next allocation. There will be special provisions for exceptional cases and new Sponsors. Employers have received a brief letter outlining the changes and a more detailed letter setting out each organisation CoS allocation for the period. There will be a small number of CoS available for exceptional cases for new sponsors licensed during this period or where a sponsor requires additional CoS for exceptional reasons.

2. The criteria to Tier 1 will be raised. Points required will rise from 75 to 80 points.

3. There will be a reduction in the number of Certificates of Sponsorships (CoS, formerly work permits) granted to licence employers. This will affect the hospitality industry the most. Employers have received letters informing them of their CoS allocation for the period. There will be a small number of CoS available for exceptional cases for new sponsors or for those who need additional CoS for exceptional reasons.

Immediate Effect

The interim limit applies regardless of the sponsor’s renewal date.

Sponsorship Action Plan for ‘B’ Rated Sponsors

Sponsors who are downgraded to or are granted a ‘B’ rating will not be allowed any CoS allocations until they sign up to (and pay a fee) for a sponsorship action plan. Full details of this are not yet available.

‘B’ rated sponsors cannot apply for exceptional consideration for CoS whilst they remain ‘B’ rated.

This means that any CoS granted can no longer be used.

New Sponsors

New Sponsors will not be awarded an automatic number of CoS. They will have to apply on a separate form to request CoS and justify the need. It will be necessary to show why the role is critical to the business.

Additional Certificate of Sponsorship (CoS)

For those who do not have any CoS (or who have had their CoS removed) and want to apply for additional CoS the following conditions must be satisfied:-

This means that extensions will take priority over new grants of CoS, and that shortages will take priority over non shortages. Looking at the list, it appears existing sponsors will not have priority where they want new staff even if there is a shortage.

A CoS can only be requested for an extension where the migrant’s leave is due to expire within the next 60 days.

Any CoS granted following a request for exceptional consideration must be used for the role for which it was requested.

Process

UKBA Managers will meet on a monthly basis on the 1st working day of each month to consider requests for CoS. Requests must be received before 25th of each month.

Sponsors will be notified within 5 working days of the panel meeting. Where the request has been successful the Sponsor Management System will be updated.

Urgent decisions will be made by the Deputy Director for Sponsorship.

The decision is final. There is no appeal or reconsideration process.

The guidance indicates that

This limit will provide learning for the new permanent cap planned from April 2011. These changes are a blueprint for the future. The Hospitality Industry will need to brace itself for major change.

PERMANENT CAP

A consultation has been announced to consider a number of options. The deadline for responses is the 17th September 2010. There are in fact 2 elements to this :-

UKBA Consultation

The options offered are the following :-

Pool

This adopts the system in New Zealand. Applicants who pass the points test would apply under Tier 1 or 2 and would be entered into a pool of candidates. The UKBA would then select the best candidates. It is not clear how ‘best’ candidates will be selected. If someone was in the pool for over 6 months without being invited to come over they would be removed from the pool.

First come first served

This adopts the Australian and US system. Under this method, applications for permission would be dealt with in the order in which the UK Border Agency receives them. When the limit is reached no more applications would be accepted.

It is not clear whether each country would specific limits if there was just one number. In theory applicants in New York for example whose applications are decided within a matter of days and weeks would use up the limit. This would mean that applicants from other countries would not be able to qualify.

Auction

For this method the UK Border Agency would invite employers on a quarterly basis to bid for allocations of Certificates of Sponsorship (formerly work permits). A limited number of certificates would be available and these would be given to the employers who bid to pay the highest fee. This method would be highly advantageous to large multi national companies who have unlimited funds.

Other Conditions

In addition to the above proposals there are also other plans such as:

Highly Trusted Status

A little mentioned change is the plan to introduce highly trusted status for employers under Tier 2. This is already in force for Tier 4 (students) and is planned for introduction in April 2011.

The MAC consultation

MAC has been responsible for taking very detailed evidence on national shortages and as a result Chefs were placed on a shortage list for the first time in years. The deadline is 07/09/2010 that responses are sent. It will be necessary for all hospitality industry to look specifically at the likely impact of these changes to their businesses.

They have now been asked to prepare a report taking account of the impact of migration on economic, social and public services. The deadline is 07/09/2010. MAC recognised that they will need to take into account the following:

MAC have commented that there may be a small reduction to begin with followed by smaller or larger reductions in successive years and acknowledges that Tiers 1 & 2 can only reduce net migration up to a point.

MAC have highlighted the fact that there are complex issues which require specific data. For example they would need information on how many migrants leave the UK having previously entered via Tier 1 or 2. This will to a certain extent require them to estimate the impact of policies particularly where the data is in short supply or only partly available.

The intention of the cap is to reduce migration in Tiers 1 and 2 by 5%. The regulations indicate that there will be very strict controls over the grants of CoS. Those who did not use their CoS are at a disadvantage as this is forming the basis of the calculation for this year. The temporary cap is done on a month to month basis and so there is also likely to be a backlog. Expect major changes ahead.

Maria Fernandes has been in practice exclusively in immigration for the past 25 years and is accredited in Immigration Law by the Solicitors Regulation Authority. Fernandes Vaz is based at 87 Wembley Hill Road Wembley in Wembley and can be contacted by telephone on 02087330123, by email on info@fernandesvaz.com.

The 2 Immigration Caps

On the 28th June 2010 the Home Secretary announced that the Government intended to introduce an annual immigration cap to take effect in April 2011. However in the meantime in order to prevent the sudden rise in applications, a temporary cap has been introduced which come into effect on 19th July.

July 05, 2010

The Visa Cap

The Home Secretary, Theresa May has announced that there will be a visa cap for categories under Tier 1 (General) and Tier 2 (General).

For Tier 1 applicants the cap will be decided on a monthly basis and once the allocation is reached the outstanding applicants will be held until the next allocation period.

Tier 1 applicants will have to score an additional 5 points as of 19th July 2010.

For Tier 2 (General) applications there will be a reduction of Certificates of Sponsorships. A letter from the UKBA suggests that those granted over 2 certificates will be expected to reduce their numbers. The reduction will be based on the usage of the previous year.

Tier 2 (Intra Company transfers) and other categories are not affected by these changes. An article detailing these provisions will appear in our article section.

Pankina

The Court of Appeal decided that applicants must have £800 at the date of the application but that imposing the requirement for 3 months beforehand was unlawful. Lord Justice Sedley was concerned about the lack of scrutiny of “guidance notes” which are issued alongside the Immigration Rules and at times appear to exceed the powers laid down by the Rules.

March 03, 2010

NEW CHANGES Due to take effect on 03/03/2010

STUDENT

Below Degree Level

• Students studying below degree level (except for those on a foundation degree programme) will only be allowed to work for a maximum of 10 hours (Those on work placements are unaffected by these changes.
• Dependants of students undertaking a course below degree level (except for those on a foundation degree programme) will not be able to work unless they qualify in their own right.
• Those who a come on course of less than 6 months will not be allowed to bring in dependants

English

• Those coming to the UK to study English or to study below degree level (except those on a foundation degree programme) will need to ensure that their standard of English is at Common European Framework of Reference for Languages (CEFR) B1 level.

Current Applications (Transitional Arrangements)

Students who were approved leave to enter or remain proir to the 03 March 2010 will retain their previous conditions, until such time when they need to renew their leave.

Applications made before 03 March 2010 will be considered under the 22 February 2010 rules. For in-country, the date of application is taken from the post mark date or the date of appointment for premium applications. For out of country, the date of application is taken from the date the fee is paid and biometric details are taken.

Where a Tier 4 (General) student has a valid CAS that was assigned before 10 February 2010 for an English language course at level A2 or B1, the student will still be permitted to apply for leave to undertake that course after 03 March 2010. The student will be able to use the CAS to support their application whilst ever it remains valid.

Lower Level and Work Placement As on 06/04/2010

Sponsors will need to be highly trusted to offer courses at National Qualifications Framework Level 3 (and its equivalents) and courses with work placements below degree level.

At present only publicly funded organisations are included in this category and private institutions will need to apply to become highly trusted sponsors.