The two immigration caps

Posted on In Focus Sep 2010 - by Tandoori Magazine
The two immigration caps

The recently announced immigration cap will have a drastic impact on the restaurant sector. Immigration lawyer Maria Fernandes looks at what to epect.

On the 28 June, 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 came into effect on 19 July.

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 July and runs until 31 March 2011, when the permanent cap will come in force.

There are three 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:-

  • Sponsor must ‘A’ rated
  • The number of CoS requested must take into account any available CoS remaining in the existing allocation.  CoS will then be ranked and granted in the following order :-

 

  1. Work Permit or Tier 2 (General) for an existing sponsor.
  2. Work Permit for Tier 2 (General) Extension for new Employer
  3. A new shortage occupation post for a new sponsor
  4. A non-shortage occupation post for an existing sponsor
  5. A non-shortage occupation post for a new sponsor


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 first working day of each month to consider requests for CoS. Requests must be received before the 25th of each month.

Sponsors will be notified within five 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 there will be very few CoS which will be available mainly for new Sponsors.  This means that employers who wish to open or expand businesses may not be able to do so. The other is that no reasons will be given you refusing applications and no appeal or review process.  This would mean applying to the High Court if there are grounds to do so.

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 17 September 2010.  There are in fact 2 elements to this:
 

  1. The UKBA will look at how the limit should be applied (UKBA).
  2. The Migrant Advisory Committee then will look at what level the Government should set its limit.


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:
 

  • Raising standards of English language qualifications.
  • Introducing a requirement  that the employer must hold health insurance for employees.
  • Wider responsibilities for employers to make a practical commitment to upskilling British workers for example by supporting national or local apprenticeship and other similar schemes.
  • Requiring employers to work with local providers and job centres and contribute towards investment for training.
  • By requiring all shortage jobs to be advertised before recruiting overseas staff (this was the situation before the shortage was in place following recommendations by Mac advertising requirements were lifted.  It is difficult to understand and why a job that is accepted to be in acute short supply would need to be advertised and what benefits this would bring to the process.

 
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 7 September 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 7 September 2010.  MAC recognised that they will need to take into account the following:
 

  • The time, cost and policy implications of accelerating any required upskilling of UK workers.
  • Feasibility of other alternatives to migrant labour including paying higher wages and increased mechanisation and the use of new technology.


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.
 

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