Immigration Cap - Home Affairs Committee Contents


8  Administering the cap

Raising the points requirement

88. It seems the Government intends to implement the cap through the architecture of the existing Points Based System. The advantage of the PBS is that it allows quotas to be applied differently to the individual tiers, and possibly to different sectors within those tiers. The Business Secretary has recently argued for the cap to be applied flexibly so that it can be moved up or down in line with economic circumstances.[125] This was echoed in evidence to us from the Confederation of British Industry, which proposed that:

    [The Migration Advisory Committee] recommend to government both an appropriate level at which annual limits should be set for the economic tiers and how the points requirements of the PBS should be altered to ensure these limits were met but not exceeded. In practice the limits would act more like targets, with flexibility provided for the MAC and UKBA to adjust the pass mark upwards or downwards in line with demand for permits.[126]

89. The Points Based System removed discretion from the visa-issuing process through the implementation of a transparent points system—if an applicant met specific, objective criteria relating to earnings, qualifications and skills, then they acquired the necessary points and a visa was granted. Applicants could check their eligibility via an online calculator, which told them instantly whether they would meet the criteria. One consequence of this process was the removal of a right of appeal against visa refusals, which the previous Government argued was unnecessary given the lack of discretion in decision-making. Our predecessor Committee in the last Parliament welcomed the "aim of transparency and the introduction of objective criteria" in its report into the Points Based System in 2008.[127]

90. We support the administration of the cap through the structure of the existing Points Based System. This would allow limits to be applied flexibly—as the Business Secretary has called for—and thus bear some relation to industry demand and sectors where shortages are. Given that there is no right of appeal under the Points Based System, it is also important that decision-making should be as open and transparent as possible. Currently, a visa is issued when an immigrant meets specific, objective criteria, which are publicly available, and applicants can check their eligibility against an online calculator. We caution that, in determining how the cap will be administered, care must be taken not to lose this transparency.

Allocating visas

91. The UK Border Agency consultation proposed several options for how the cap could be administered, which can be summarised as follows:

'First come, first served' (operated in Australia and the US)

For Tier 1: Under these systems applications are considered in order of receipt and would succeed if they met the baseline criteria for qualification under the tier until the limit was reached. Once the limit was reached the tier would close to new applications. We believe that such a system does not necessarily lend itself well to applications from highly skilled individuals without a job offer as it is not the most selective.

For Tier 2: A specified number of visas would be released on a quarterly basis and applications would be accepted against that quarterly quota. The existing Tier 2 points table, or a slightly revised version, could be applied.

Pooling system (operated in New Zealand)

For Tier 1: Under such an arrangement, migrants wishing to be considered for entry to the UK would undertake a points test, as now. Those who passed the points test would be able to make an "expression of interest" by entering a pool of potential candidates. Individuals entering the pool would receive an immigration employment document which would confirm that they were in the pool. The UK Border Agency would, at pre-determined intervals, invite the relevant number of candidates from the pool to apply for entry to the UK. Those candidates invited to apply would be the candidates with the highest points scores.

For Tier 2: A pool could also be applied to migrant workers with a job offer who enter through Tier 2. A specified number of visas would be made available on a quarterly basis and applications would be accepted against that quarterly quota.

Auction

For Tier 2 only, the consultation also proposed a quarterly visa auction, under which employers could make a 'bid' for an allocation of certificates of sponsorship and the limit would be filled by those "willing to pay the highest fee". [128]

92. The consultation stated "it is the government's view that the fairest approach will be to operate a pool system for highly skilled migrants entering through Tier 1 ... [and] a first come, first served system for skilled migrants entering through Tier 2".[129]

FIRST COME, FIRST SERVED

93. Some witnesses were opposed to a first come, first served system—the Government's stated preference for Tier 2—for a range of reasons. Mr Mittal pointed out that it was likely certain companies would have the ability to get their applications in faster than others, which would create "distortions in the system".[130] Mr Sharp agreed, commenting that it "sounds like chaos to me".[131] Migration Watch thought that it risked "stimulating a high volume of precautionary applications",[132] and the British Medical Association that "if the allocation is not managed effectively then employers could face significant delays in recruiting staff to the detriment of NHS service delivery".[133] The British Hospitality Association drew a parallel with "online bookings for events such as concerts where the quickest on the button wins … regardless of merit".[134]

94. The Immigration Law Practitioners' Association argued that different visa processing times for UK Border Agency posts around the world—ranging from a day to several weeks—would create bias in favour of certain nationalities. It was "logistically complex and open to charges of operating in a discriminatory manner".[135] The Law Society told us that "allowing sponsors to indicate peak recruitment periods will be essential to ensure that well-established business planning practices are not disrupted".[136] On the other hand, the British Association of Social Workers considered that "if the baseline criteria are right, a first come, first served system is transparent, fair and workable".[137]

95. Business witnesses were asked about their experiences of a cap administered on a first come, first served basis in other jurisdictions. Mr Mittal noted that in the United States there was a rush of 180,000 applications for the annual quota of 65,000 visas, all of which were made within the first week. Visas were allocated using a lottery system, which was "most ineffective for businesses".[138]

POOLING SYSTEM

96. The Government's stated preference for Tier 1 met with a more mixed response. Migration Watch considered a pooling system for Tier 1 to be "entirely feasible", suggesting the limit could be adjusted in the light of other flows.[139] The British Medical Association agreed that a pool for Tier 1 "appears to be a workable proposal provided that its structure allows for the identification and prioritisation of individuals with the most sought-after skills at that time".[140]

97. On the other hand, the British Chambers of Commerce considered that "although the least worst option ... many businesses expressed concern that the highly skilled, geographically mobile individuals who would qualify for such a pool may decide to approach a country where they will not have to wait around, as their skills are so highly valued".[141] The Immigration Law Practitioners' Association argued that it was not transparent, since the "points required to qualify are unknown at the time of application" (under the current system candidates can enter their attributes via an online calculator and discover instantly whether they meet the points requirement for a route). It noted that many Tier 1 immigrants, though they did not require a sponsoring employer, nonetheless came to the UK to pursue employment opportunities. Candidates entering the pool would be left there for up to six months "by which time the employment or business opportunity that attracted them to the UK is likely to have passed".[142] The Immigration Law Practitioners' Association also questioned the fairness of charging an application fee to enter the pool, when immigrants then had no idea whether they would be successful. Nicholas Rollason of ILPA told us that:

    It is a myth that Tier 1 is a category where people wonder whether they'd like to come to the UK and live here for some sort of lifestyle change—looking for a job. Most people have a job offer or a business opportunity that they go on to pursue. That is our experience in 99% of cases.[143]

AUCTION

98. Witnesses did not argue in favour of this option. The Federation of Small Businesses told us that an auction system would have a particularly adverse effect on the small businesses which, it said, made up 99.3% of all businesses in the UK:

    Instead of ploughing profits back into businesses...small business owners would be paying money to Government in order to employ staff who have the skills which the UK education system has failed to deliver.[144]

99. The British Medical Association was particularly concerned about the ability of the public sector to engage in an auction system:

    The concept of organisations bidding for visas with those prepared to pay the largest sums securing the visas at the expense of less wealthy organisations does not constitute an appropriate use of public funds. At a time when huge cuts are being made in public sector budgets, forcing organisations to use much-needed resources as part of a bidding war for staff does not seem apt.[145]

Universities UK echoed these fears:

    Universities are in receipt of significant public funding which it would be inappropriate to use to increase the cost of certificates of sponsorship.[146]

100. Mr Rollason told us that "we would have these sort of eBay economics ... if the principle is that the highest payer wins, there will be clear winners who will be the wealthy companies who have no objection to paying £10,000, £20,000 or £30,000 to get a banker to come and work for an investment bank in the UK".[147] Ms Barrett-Brown added that "it's placing a relative value on the heart surgeon and the investment banker. The investment banking business can clearly afford a much higher premium for an auctioned permit than the NHS".[148]

101. The Minister acknowledged that, in relation to an auction:

    you need to make safeguards. If everything was auctioned off you can imagine that banks and so on would be the only people who could afford them and so we could not bring in anyone in any other sector. There are clear commonsense constraints which mean that you cannot just operate a completely free market in this area.[149]

102. We received mixed views on the merits of allocating Tier 1 visas under a pooling system. Several argued that it would be overly bureaucratic and uncertain for highly skilled immigrants who could be held in the pool for up to six months, only to be told that their qualification had expired. There does not seem any reason why, rather than a pooling or other new system, the Tier 1 cap should not be administered simply by raising the points requirements to a sufficient level to match the desired quota. This would allow a limit to be applied whilst ensuring that the most highly skilled were not turned away, nor kept waiting for months on end with no guarantee of a visa at the end.

103. Tier 2 is more complex, since the particular skills and individuals required by companies should be the key determinant of whether a candidate is successful under this route. It is vital that the Government finalises plans for Tier 2 in very close consultation with business and service leaders, to take full account of those needs. We do not consider an auction workable with regard to Tier 2, since it would almost certainly have a disproportionate impact on the skills recruitment to the public sector and small businesses, neither of which could afford to bid large sums. A first come, first served system for Tier 2—the Government's preferred option—met with multiple objections, including that there would be a high volume of precautionary applications and that releasing visas only at certain times in the year would hamper business planning. Principally, some witnesses felt that such a system took no account of an applicant's merit. None was, however, able to propose a preferable alternative. It may be possible to mitigate some of the criticisms of first come, first served by stratifying the cap by Tier 2 sectors, to ensure that some do not dominate to the exclusion of others, that market needs are always recognised, and to release visas at regular intervals during the year.

Timing of application

104. Witnesses were anxious about when in the year visa allocations would be made. Dr Marshall of the British Chambers of Commerce told us:

    Our concern is over a company that comes to us and asks: what if it needs an engineer with specialised skills in October or November but the cap for that year has already been exceeded? Does it mean it takes the decision not to expand its business? Does it have other options open to it when it knows that a British person with the same qualifications and levels of skill may not be available for four or five years because it needs to train up the individual from scratch?[150]

105. Mr Mittal echoed this: "the cap might be filled and that could be detrimental because how do you take demand of what's required down the line for a year or three months?"[151] Universities UK noted that demand was high for academic staff over the summer in preparation for the new academic year:

    For the higher education sector people need to start work at certain points in the year and asking employers to apply again in the next period would be unworkable.[152]

106. The Confederation of British Industry argued strongly for introducing flexibility into the timing of visa allocations, proposing that:

    the annual cap is divided into monthly allowances, to ensure that closed periods are avoided. This approach has the benefit of ensuring that the extremely highly skilled will always get a visa, as they will pass the higher points test mark.[153]

The British Medical Association agreed that a monthly allocation of certificates of sponsorship would be more practical.[154]

107. The Law Society proposed that "an allocation of certificates of sponsorship be kept separate in each period to deal with exceptional circumstance applications. Sponsors should be required to demonstrate a clear business case for an exception to the quota".[155] Mr Rollason of the Immigration Law Practitioners' Association noted that, although the temporary cap provided that such exceptional applications could be made, there were "very hazy criteria about how those additional allocations will be given. I can tell you that of all the applications made by all the sponsors in the UK which were considered by the panel on 1 September, none of the non-EU nationals being hired were approved".[156]

108. We recommend that the cap should be administered more frequently than annually, particularly given the experiences of businesses under the US system, where annual visa allocations are exhausted within a day or two of opening. This would better meet changes in sector needs over the course of the year, and could be monthly, as the Confederation of British Industry has proposed. We also recommend that a number of visas be held in reserve so that where businesses or services can demonstrate a clear business case for bringing in a migrant outside the usual allocation period, they are able to apply for an emergency visa.

Parliamentary scrutiny

109. The Immigration Act 1971 as amended underpins all UK immigration law. Section 1 (4) of the Act provides the Secretary of State with the power to lay immigration rules before Parliament. A significant number of recent changes to the immigration system, both by the current and previous governments, have been introduced in this way through the Immigration Rules, rather than via primary legislation. Many of these changes have been complex and controversial, and their implementation in this fashion has meant that they were not subject to full parliamentary scrutiny, were rushed through, and consequently attracted judicial review. The Immigration Law Practitioners' Association told us that:

    There have been a number of successful legal challenges to changes in the immigration rules including the cases of HSMP Forum,[157] BAPIO,[158] Pankina[159] and English UK[160] amongst others.[161] ILPA foresees similar successful challenges to the proposed cap, the methods of implementation and the consultation process.[162]

ILPA also pointed out that "recent years have seen instances of changes to the immigration rules with almost immediate effect, failing to respect the parliamentary convention of 21 days' notice", noting that this had particularly been the case in relation to changes to the Points Based System, and warned that there was "a serious risk that the cap will be the subject of successful legal challenges on basis of vires and rationality".[163]

110. There has been a consistent tendency, under both the current and previous Governments, to rush through complex changes to the immigration system via amendments to the Immigration Rules, and we note that this has caused problems. In many cases changes have been enacted with almost immediate effect, failing to respect the parliamentary convention of 21 days' notice, and leading to a spate of judicial reviews. Such unnecessary haste leads to poor decision-making which is more likely to be challenged in the courts. We recognise the need to institute a temporary cap to prevent a rush of immigration applications ahead of the creation of a permanent cap. However, the Government must ensure that Parliament be given the opportunity fully to scrutinise all significant changes to the immigration system before they are introduced.


125   BBC News 17 September 2010, Vince Cable criticises temporary immigration cap. Accessed 20 September 2010.  Back

126   Ev w13 Back

127   Home Affairs Committee, Thirteenth Report of Session 2008-09, Managing Migration: The Points Based System, HC 217-I, para 111 Back

128   UK Border Agency, Limits on non-EU economic migration: a consultation, June 2010, p 7: http://www.ukba.homeoffice.gov.uk/sitecontent/documents/aboutus/consultations/limits-on-non-eu-migration/limits-on-non-eu-migration.pdf?view=Binary. Accessed 4 October 2010. Back

129   Ibid., pp 7-8 Back

130   Q 197 Back

131   Ibid. Back

132   Ev 50 Back

133   Ev w8, para 13 Back

134   Ev w34 Back

135   Ev 53 Back

136   Ev w34 Back

137   Ev 62 Back

138   Q 196 Back

139   Ev 50 Back

140   Ev w8 Back

141   Ev 64 Back

142   Ev 53 Back

143   Q 228 Back

144   Ev 46-47 Back

145   Ev w9 Back

146   Ev w16 Back

147   Q 217 Back

148   Ibid. Back

149   Q 57 Back

150   Q 13 Back

151   Q 187 Back

152   Ev w16 Back

153   Ev w13 Back

154   Ev w8 Back

155   Ev w34 Back

156   Q 204 Back

157   R (HSMP Forum Ltd) v SSHD [2008] EWHC 664 (Admin); R (HSMP Forum (UK) Ltd) v SSHD [2009] EWHC 711 (Admin). See Joint Committee on Human Rights, 20th Report of Session 2006-2007, Highly Skilled Migrants: changes to the immigration rules, HL paper 173, HC 993, 9 August 2007. Back

158   R (BAPIO Action Ltd) v SSHD [2008] UKHL 27. Back

159   SSHD v Pankina et ors [2010] ECWA Civ 719. Back

160   R (English UK) v SSHD [2010] EWHC 1726. Back

161   See, for example R (Chong Meui Ooi) v SSHD [2007] EWHC 3221 (Admin), Odelola v SSHD [2009] UKHL 25, R (Limbu) v SSHD [2008] EWHC 2261 (Admin). Back

162   Ev 52, paras 2-3 Back

163   Ev 52, para 4. Recent examples of statements of changes in immigration rules that have come into force the day after they were made include Cm 7929 (parts taking effect 20 August 2010); Cm 382 (parts taking effect 23 July 2010), HC 96 was ordered to be printed on 15 July 2010 and took effect five days later; HC 439 was ordered to be printed on 18 March 2010 and parts took effect on 6 April 2010. Back


 
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