Memorandum submitted by Highly Skilled
Migrant Programme Forum (HSMP Forum)
1. "HSMP Forum" is a not-for-profit
organisation. HSMP Forum took its name from the UK's which was
introduced in 2002. It was formed after the 2006 decision by Government
to apply new qualifying criteria for existing Highly Skilled Migrants.
"HSMP Forum" has been lobbying the legislature, executive
and judiciary by challenging unfair policies, to allow existing
legal Skilled Migrants to settle in the UK. The organisation's
aim is to support and assist migrants under the world-renowned
British principles of fair play, equality and justice and believes
in challenging any unfair policies which undermines migrants'
interests. The following is our submission on the issues concerned
with the proposed permanent immigration cap.
2. The impact a cap on non-EU economic migration
would have on the ability of UK business and industries to recruit
the skills and staff they require
We believe a cap on non-EU economic migration will
tie down the businesses by preventing them from recruiting skilled
staff when required. Businesses cannot wait for months if they
urgently need specific skills. In addition, cap will threaten
economic performance and recovery from current economic problems.
Organisations unable to fill certain positions may find the need
to outsource such requirements overseas.[41]
They may find it more economical to outsource in a larger spectrum
than continue with such posts and departments in the UK. Many
companies in London rely on Tier 1 and Tier 2 migrants with some
employing a large number of non-European migrants. Many Tier 1
immigrants hold key and senior positions and are involved in high
value-added work. The proposed and potential cap on extension
would not only make it more difficult to recruit new staff but
will add unnecessary uncertainty to businesses and their staff
on Tier 1 (and Tier 2) visas. It would be unfair to businesses
to loose workers who engaged in high value-added work and it is
irrational to expect the companies to replace their existing non-EU
staff with EU nationals, especially when there is a specific language
requirement or skills requirements that cannot be fulfilled by
the EU nationals.
There are also legal consequences and costs
of cap on extensions for example when a company needs to immediately
terminate a migrant's employment due to the cap and has to pay
for three to six months as per notice period obligations (a six-month
notice is common for senior workers and managers).
At a time the economy desperately relies on
an injection of skills and talent to show a consistent upward
trend, shortcomings like these should not be allowed to thwart
the commercial progress. Such a cap only heightens a sense of
instability in a volatile economic environment. Also there are
many trainees in the NHS who are due to complete medical training
in the next future. The cap will not only force them to abandon
their education but will also mean a waste of time for the NHS
who has made a considerable investment to turn them into a potential
skilled workforce. We believe skilled immigration should be a
market driven response rather than a political one.
3. The numbers of skilled and non-skilled
migrants likely to be affected by a cap on Tiers 1 and 2
Government has set an ambitious target "to
reduce immigration to the levels of 1990s tens of thousands rather
than hundreds of thousands". In addition, it wants to continue
to attract the "brightest and the best" to the UK. It
is unrealistic to reduce immigration on such a scale without having
to forego the best and the brightest. Especially, since the target
group for such a cap is intended to be that of Tier 1 and Tier
2 migrants. According to our estimate a cap might affect around
50% of highly skilled migrants.[42]
Immigrants arriving under Tier 1 (previously HSMP) formed 3% of
total immigration in 2008 (15,515 Tier 1 migrants of total inflow
of 590,000 migrants). However their contribution to the economy
and the growth is significantly bigger than their size. Frequent
changes in immigration policies and uncertainty about future cannot
attract highly skilled migrants. Countries such as Australia,
New Zealand and Canada attract highly skilled migrants by providing
them a much better provision of permanent residency comparatively
in the UK where no such assurance is given and the Citizenship
and Immigration Act will make the process of settlement even more
difficult and delayed.
We oppose any retrospective changes and believe
that immigration cap should not be applied on extensions of existing
migrants. We have received many responses from Tier 1 migrants
expressing concern regarding the possible cap on extensions. They
feel that applying a cap on extensions is unfair and will expose
them to enormous uncertainty. The prospect of being sent to their
countries of origin after spending years and investing in the
UK would cause major damage to their personal life and career
prospects. Migrants that came under Tier 1 have developed a reasonable
expectation that they would be able to extend their stay under
the same conditions based on various judicial outcomes which confirmed
Tier 1 extensions are based on the same rules as applicable during
their initial applications. Some Tier 1 migrants were disappointed
to see the Migration Advisory Committee's consultation which is
considering applying cap on extensions. Such uncertainty can cause
migrants to immigrate to countries with immigration friendly policies.
Another group that would be affected by the
potential cap on extensions are HSMP migrants—some HSMP
migrants need to apply for second extension and face uncertainty
despite spending almost five years in the UK and making it their
"main home" as per the HSMP visa requirement. These
migrants could not predict that they would be subject to the cap
despite their efforts and contribution.
Frequent immigration changes and uncertainty
will send negative message to new potential Tier 1 migrants and
lead to significant decrease in applications. The damage to UK's
reputation might be irreversible and it might deter foreign entrepreneurs
and potential investors: the consistent change in policy can create
lot of uncertainty and unpredictability for migrants to plan their
lives. If there are retrospective changes towards Tier 1 (general)
then in the future there is a possibility of retrospective change
towards entrepreneurs and investors as well.
4. The impact and effectiveness of a "first
come, first served" or a pool system for highly skilled migrants
under Tier 1; and of a "first come, first served", a
pool, or an auction, system for skilled migrants under Tier 2
A pool system will ensure that the candidates
with highest skills would be allowed to come to the UK. However
it also means increasing the requirements of PBS (for example
if a person meets PBS requirements but if other applicants hold
higher degree (MSc or PhD) or earn higher salary then the applicant
would be refused). The existing PBS requirements are high enough.
There are also issues concerning delays in the time interval of
applications selection in a pool system, transparency of such
a system and whether there would be any appeal rights which will
create many uncertainties for migrants intending to come to UK.
Under the "Auction" method small firms would be potential
losers since it would be impossible for them to compete with big
corporations. We believe such methods should not be applied to
existing migrants in the UK.
5. Whether and how intra-company transfers
should be included in a cap
Applying a cap only on Tier 1 and Tier 2 might
lead to the situation that big corporations will use intra-company
transfer route as alternative way to bring in skilled workers.
That would lead to surge in intra-company transfer visas and consequently
the Tier system limits would be reached earlier. That would be
unfair towards small businesses that cannot benefit from intra-company
transfers and also for the migrants. We believe the inclusion
of intra-company transfers within the cap will lead to further
exploitation of migrants since those coming under the current
policy of intra-company transfers cannot apply for settlement.
These migrants although cannot access public funds like other
migrants on tier 1 and 2 and would be paying for the public services
they access.
6. The implications of merging the Resident
Labour Market Test and Shortage Occupation Lists
Merging the Resident Labour Market Test and
Shortage Occupation Lists would hurt companies that require specific
skills that are not included in Shortage Occupation list like
foreign languages. The shortage occupation list is concerned with
an occupation which is in national shortage and it has been acknowledged
as such but if there are resident workers available to fill in
such occupation then it is arguably cannot be considered as a
national shortage. The government's assumption that employers
tend to bring in migrants to fill in positions of national shortage
irrespective of availability of resident workers seems to be misplaced
and if at all then this can be corrected by rather more efficient
management of such a list. The shortage occupation list should
be used to reduce bureaucracy and make it much easier for businesses
to recruit non-European migrants when the skillsets are not available
locally. Merging these two can potentially cause further procedural
delays and difficulties for businesses urgent needs.
7. Whether dependents should be included in
the cap, and the effect of including them
Preventing spouses from accompanying the main
applicants based on cap will discourage potential Tier 1 and Tier
2 migrants from coming to the UK. Imposing cap on dependants of
Tier 1 and Tier 2 holders already in the UK should be out of the
question. Most of the children of current migrants have spent
years in the UK and feel that UK is their main home and can speak
only in English. It is unfair to expose these families to uncertainty
and constant fear that despite their hard efforts they may face
deportation. In addition, uprooting families of existing migrants
would lead to possible violation of the right to respect for private
and family life as per Article 8 ECHR, there can be possible challenges
in courts and mounting costs. It will also be wrong and unfair
for the government to consider the entry of dependents with working
rights as a barrier in limiting migrants as this can lead to possible
segregation and biased treatment of migrants who have dependants
and those who do not. Migrants who have dependants are likely
to be earning more and therefore would be paying more taxes comparatively.
In addition not everyone who comes on a dependant visa seeks employment.
8. We recommend as follows:
— We believe the government should not
apply any such proposed cap on migrants who are already resident
in the UK (including those who are switching internally from other
categories). This is of major concern due to the home secretary's
repeated claims of her intention to reduce net migration.
— We do not believe a cap is good for UK's
economy as it can further cause unnecessary detriment to UK businesses
in this ongoing difficult economic crisis. Also the overall image
of the UK in attracting highly skilled migrants will be at risk.
When the Prime Minister is eager to improve and strengthen relations
with major developing countries a cap can have adverse impact
on such initiatives, a cap will be considered as a protectionist
measure by other countries, for example, India has already expressed
its unhappiness over such measures and said that it can impact
trade relations between India and the UK.[43]
Therefore, if the government goes ahead with its plans then we
believe it needs to at-least ensure that migrants coming on tier
1 visas which constitute a very small proportion of the overall
immigration inflow in the country is exempted from such a cap.
— It is also important that the government
rather tries to perfect the present processes rather than introducing
new procedural rules. In the recent past both employers and migrants
have seen a vast number of new procedural changes in the immigration
system, therefore the focus can be on improving the present processes
rather than reestablishing new ones which can cause further inconvenience
and hardships to both employers and migrants.
August 2010
41 http://www.guardian.co.uk/uk/2010/aug/22/immigration-cap-business-jo Back
42
Estimations made based on analysis of IPPR's analysis (Limits
to limits, 2010) and Control of Immigration Statistics, Home Office,
2010. Back
43
http://www.peoplemanagement.co.uk/pm/articles/2010/07/indian-government-to-be-consulted-on-immigration-cap.htm;
http://indiatoday.intoday.in/site/Story/103394/World/developed-nations-cannot-have-protectionist-attitude-sharma.html Back
| 
