Christopher Hitchins | Partner, London • Rachel Ashwood | Associate, London

Coming just a few months after the introduction of the UK’s new points-based immigration system (PBS), which aimed to simplify the immigration system by creating five separate tiers, each with their own conditions, entitlements, and entry requirements, the UK government has recently introduced measures that affect two of the new tiers. The new measures significantly tighten the rules pertaining to the admission of foreign nationals (i.e., foreign nationals who are not from one of the countries that make up the European Economic Area (EEA), or non-EEA foreign nationals) into the UK, by raising the threshold by which such workers may work in the UK. These changes are of concern to UK employers, for whom it is critical to have the ability to fill vacant positions with the most highly and appropriately skilled workers, especially during the current economic downturn.

Tier 1
Tier 1 (General) of the PBS is the highly skilled worker category, which replaced (among other immigration routes) the Highly Skilled Migrant Programme in phases throughout 2008. Under this category applicants do not need a job offer before they come to the UK.

Prior to March 31, 2009, non-EEA foreign nationals coming to the UK under Tier 1 (General) had to hold at least a bachelor’s degree to satisfy the “qualifications” requirements of this category. However, from March 31, 2009, a non-EEA foreign national seeking initial entry to the UK in this category must hold at least a master’s degree. Further, but possibly of less concern to many UK employers, the previous “earnings” requirement of Tier 1 (General) was that the foreign national seeking entry in Tier 1 had to have earned at least £16,000 over the prior 12-month period. This earnings threshold has now been increased to £20,000.

Tier 2
Tier 2 replaced the UK work permit scheme in its entirety at the end of November 2008. In order to employ skilled non-EEA foreign nationals, UK employers must now apply for a sponsorship license, which enables them to issue certificates of sponsorship either to individuals they wish to transfer from group companies “Tier 2 (Intra Company Transfers),” or alternatively to recruit fresh talent from outside the EEA for their UK operations for positions for which they can demonstrate cannot be filled with a worker from within the EEA “Tier 2 (General)".

As of March 31, 2009, all UK employers, as part of their efforts to show that such a vacant position cannot be filled with a worker from within the EEA, are now required to advertise the vacant position through JobCentre Plus, although they are not precluded from posting those positions on other popular job search sites as well.

JobCentre Plus is a government agency supporting people of working age from welfare into work and helping employers fill vacancies. Typically it is more closely associated with finding work for low-skilled or manual-skilled workers rather than the skilled workers that are generally associated with Tier 2. The concern for UK employers is that this new requirement will lead to UK employers unnecessarily spending valuable time and effort considering applications received via JobCentre Plus from candidates that are genuinely not qualified for the position. There is also concern that the requirement may deter employers from carrying out supplementary advertising in more appropriate forums, the result of which may be that it restricts employers’ search for the best candidate.

The announced changes are part of a new drive by the UK government to make use of the flexibility of the new PBS. Possibly as a result of the harsh economic climate that the UK businesses find themselves operating in today, the government’s intention appears to be to ensure that the vast majority of jobs are first offered to UK-resident workers.

Further Changes?
The UK Migration Advisory Committee (the MAC) is an organization set up by the UK government to assess skills shortages in the UK economy. It has recently been asked by the government to consider questions that could affect the ability of UK employers to bring migrant workers to the UK in future.

Of key importance, the MAC has been asked to consider and report back on whether there is an economic case for restricting Tier 2 to shortage occupations only. This would mean that intracompany transferees as well as any new hires falling within the current Tier 2 (General) of the PBS would no longer be permitted entry into the UK. This question is clearly of great importance to licensed UK sponsors, as “shortage occupations” constitute only a very narrow range of occupations, and the vast majority of intracompany transfers do not involve employees in such occupations.

The recommendations of the MAC are due to be passed to the Home Office in July 2009. However, before then interested parties are invited to write to the MAC to give it's views, if they want Tier 2 to be maintained. Companies who rely on Tier 2 Certificates of Sponsorship should prepare to submit evidence to the MAC, giving their reasons as to why such employees are required and the likely business consequences of the abolition of this immigration category.