Immigration Update – If the Cap Fits

November 2010

Calls for Highly Skilled Migrants to fill only Highly Skilled Jobs

Last week we reported that it is becoming increasingly difficult to secure a visa to live and work in the UK, particularly for those who fall under economic migration categories (such as the self sponsored Tier 1 or the employer sponsored Tier 2 categories). We reported that as at 20 October 2010, the interim cap in respect of Tier 1 had been reached for the month of October and that migrant applicants wishing to make applications to enter the UK after that date would not be issued a visa until at least 1 November 2010.

In tandem with the cap for the month of November reopening, the UK Border Agency has published a study which examines the jobs being undertaken by migrant workers under the Tier 1 visa, with calls that those who enter the UK under the highly skilled Tier 1 category should only undertake highly skilled employment.

The Government’s methodology used data gathered from Tier 1 dependant visa applications in the month of June 2010, made in circumstances where the Tier 1 migrant currently in the UK was to be joined by a dependant spouse, civil or unmarried partner or child under the age of 18. At the time of making their visa application, the applicant was asked to give information as to the current employment of the Tier 1 migrant. This data has been used to extract the employment status of the main applicant in each case once arriving in the UK.

The Government study found the following:

25% of Tier 1 migrants were in skilled work. The measure of defining ‘skilled work’ refers to not only the UK Border Agency’s Standard Occupational Classification used to identify skilled work in the employer sponsored Tier 2 categories, but also the Tier 1 (General) migrant’s salary. Those who were shown to have annual salaries of £25,000 or more are deemed to be skilled.

29% of Tier 1 migrants were in unskilled work. The measure of defining ‘unskilled work’, like above, refers not only to those roles that the UK Border Agency’s Standard Occupational Classification class as unskilled, but also to those who earn less than £25,000 per annum.

46% of Tier 1 migrants were in employment that could not be classified as skilled or unskilled. The measure of defining this category refers to responses that appeared to demonstrate employment in a skilled category but did not provide sufficient data to classify, or where no data was provided.

These figures compare to a 2009 survey which found that 70% of respondents reported being in skilled work, 20% in unskilled work and 10% were not working at the time of the survey.

Immigration Minister Damian Green surmises:

“Those coming to the UK under the highly skilled migrant route should only be able to do highly skilled jobs – it should not be used as a means to enter the low-skilled jobs market…the findings will play a key part in discussions on how the annual limit will be shaped”

As these new statistics will be used to design the mechanics of the permanent cap, it is important to note that they are only at best indicative for the following reasons:

  • The study appears to include dependants of all Tier 1 migrants, including for example the Tier 1 (Investor) migrant who is under no obligation to work in the UK, even upon extending their visa, provided they have maintained an investment into the UK economy of at least £750,000. It also includes Tier 1 (Post Study Work) migrants who are eligible for a further two year visa having successfully completed a degree qualification at a registered UK university. The visa is meant to act as a bridge between study and economic migration (i.e. sponsorship under Tier 2 or self sponsorship under Tier 1 (General).
  • The majority of those questioned did not provide enough detail to categorise the main applicant as either being in skilled or unskilled work. Correspondingly, the sharp difference between the 70% of skilled employment in 2009 and the 25% of skilled employment in 2010 could be readdressed if the UK Border Agency had gathered more detail from the 46% of unclear responses in June 2010.
  • The data is limited only to those Tier 1 migrants who are to be joined by dependants. It excludes Tier 1 migrants who are in the UK and are not being joined by dependants. Similarly it excludes Tier 1 migrants who entered the UK with their dependants, only focussing on those dependants joining the main applicant at a later date.
  • The data does not take into account the timing of the Tier 1 migrant’s first entry into the UK. Tier 1 migrants are not expected to have employer sponsorship before coming to the UK. Therefore, if the majority of applicants questions were joining the Tier 1 migrant who has only recently entered the UK, it would seem disproportionate to conclude that the migrant who is seeking employment is working in an unskilled category, or further, not working at all.

Finally, if the nature of the occupation undertaken by a Tier 1 migrant becomes part of the eligibility criteria (i.e. insisting that Tier 1 migrant undertakes a specific occupation, or even as far as insisting that a Tier 1 migrant demonstrate employment in a specific occupation before the grant of a visa) then this will blur the distinction between the self sponsored and the employer sponsored.

This begs the question: should there be a separate visa category for the highly skilled?

Please contact Immigration@magrath.co.uk for further detail in respect of any of these issues.