A New Act

Legislation has proved a politically effective tool for the Government in managing public perception of its control of the immigration system.  It has the dual advantage of appearing tough and proactive while being cheaper than enforcing existing legislation effectively.  So, on 30 March 2006, the Immigration, Asylum and Nationality Act 2006 was passed by Parliament.  Its first provisions will be introduced next month, although others will not be complete until 2008.  See the Office of Public Sector Information website at www.opsi.gov.uk.

This particular piece of legislation was not enough keep Mr Clarke in his job, and like David Blunkett he departed over an immigration issue.  Employers wishing to avoid the humiliations endured by these two should read on.

Managed Migration:  All Change

Unsuccessfully as it turned out, the Conservative opposition chose immigration as a priority issue for the 2005 general election.  The Government’s response was to announce a root and branch overhaul of the economic migration system, with its catchy title “Managed Migration”, promising an aggressive timetable for implementation.  It now concedes that processes which would now be in place will have to wait until spring 2008 at the earliest.

The key changes are: 

A five‑tier points system will replace the multi‑tiered system for employment and business-based immigration.  The tiers are:

Tier 1

This category is for highly skilled migrants, and will run broadly along the same lines as the current Highly Skilled Migrant Programme (HSMP).  Applicants designated as “highly skilled” with significant experience, qualifications and specialist skill will apply for stand‑alone permission to work in their specialist fields.  The purpose is to attract migrants whose skills and experience will benefit significantly to the UK economy.

Tier 2 – Skilled Workers

This tier will requires sponsorship by a certificating employer, which also will need to be registered with the Home Office.  It will replace the current work permits system.  The employer’s registration with the Home Office will be graded and its grading will reflect a number of points allocated to the applicant would‑be employee.  The tier will address primarily professional and skilled employment, including poses where the Applicants would fall short of the tier 1 criteria.

Tier 3

This will be a quota‑based system for temporary, low‑skilled workers. 

Tier 4 – Students

Tier 5 – Youth, Mobility and Temporary Workers

This category will encompass and supersede existing student internship, working holidaymaker and other short‑term employment categories.

Other important points are:

• There will be very limited scope for “switching” in‑country between categories.
• Appeal rights against decisions to extend or vary immigration status in the UK will be severely limited
• Immigration decisions will be taken by entry clearance officers based outside the UK to a much greater extent than at present
• Only applicants who have completed a successful probation period in tiers 1 and 2 (usually five years) will qualify for indefinite leave to remain (ILR) in the UK.  Others will be expected to leave the UK when their permission expires and would only be able to return if fresh permission were granted in one or other category.

While the Government is looking at the mechanics of the system, the present economic immigration system continues intact.

Most expert practitioners agree that the Government’s brave and broad‑brush announcements of 2005 will come back to haunt it, with the devil in the detail.  An attempt to reduce a complex system incorporating over 80 separate categories into five tiers is unlikely to prove adequate in practice.  The inevitable “categorical creep” as the system is refined and developed will lead to new growth in systemic complexity, reflecting the complexity of economic immigration itself.  Employers will bear the consequences when trying to plan international transfers and recruitment, and in retention of existing migrant employees. We will report developments.

Indefinite Leave to Remain – New Qualification Periods

A statement of changes in the immigration rules has extended the qualification period for Indefinite Leave to Remain (ILR) in the following employment-related categories:

• Work Permit employment
• Business person
• Investor
• Innovator
• Highly Skilled Migrant Programme

The new qualification period took immediate effect from 3 April 2006, transitional provisions enabling those whose applications were posted prior to 3 April to be considered under the old rules. This affects all employees with work permits, including those who thought they were on track for ILR after four years.

The Government’s stated purpose was to bring the UK into line with European legislation under the Free Movement of Persons Directive, which imposes a five‑year qualification period for indefinite leave to remain.