Government proposals to break the link between migration and settlement in work-related categories

The Government continues to pursue its goal of reducing net migration to the tens of thousands by 2015. It has brought out two further consultations with proposals for reducing migrant figures. The first relates to the ability of those in employment visa categories to settle permanently in the UK and the second to family migration. This article focuses on the Government’s proposals set out in their consultation for employment-related settlement.

The key message from the Government is stated within the introduction to their consultation document, namely that ‘Reducing net migration is not just about reducing the numbers coming here; it is also about increasing the numbers who leave after their initial stay’. Further, Immigration Minister Damien Green has said that the proposals ‘are aimed at breaking the link between temporary and permanent migration. Settlement has become almost automatic for those who choose to stay. This needs to change’.

Who is currently permitted to settle in the UK?

Those with employment related visas are permitted to settle once they have spent a continuous period of five years lawfully in the UK. Settlement is another term for indefinite leave to remain and means that the person can stay permanently in the UK without time restrictions on their stay or on the work they can undertake.
Those in nearly all work categories, including Tier 1, Tier 2 (General) and Tier 5 migrants can apply for settlement on this basis.

What are the proposals?

The main proposals as set out in the consultation are as follows:

All visas will be categorised as ‘temporary’ or ‘permanent’. Permanent visas will allow migrants to apply for settlement (indefinite leave to remain).
Tier 1 temporary leave will be capped at five years and the number of exceptional talent migrants granted settlement will be restricted.
Tier 2 will be defined as temporary, ending any assumption that settlement will be available for those who enter on this route. There will be a maximum stay of five years in this route. Those who first came to the UK from 6 April 2011 will not have a direct route to settlement.
Most Tier 2 migrants will be expected to leave the UK after a stay of five years. Although it is not clear whether they will be permitted to reapply for a Tier 2 visa after leaving the UK, their five years will not count towards any application for settlement.
Certain categories of Tier 2 migrant, for example those earning over £150,000 will retain a direct route to settlement.
A new permanent visa category will be created into which the most exceptional Tier 2 migrants will be permitted to switch after three years in the UK, and go on to apply for settlement. There may be a limit on the numbers permitted to switch.
Dependants of Tier 2 visa holders will need to meet an English language requirement if they wish to switch into a permanent visa category.
Employers will be required to confirm that they expect to be unable to supply a suitable worker from the resident labour force for the foreseeable future and/or will be required act as a sponsor and pay a financial contribution in support of the application for a permanent visa.

What is the likely impact on employers and migrants?

The intention behind the proposals is that all Tier 2 migrants to the UK come here temporarily to fill skills gaps and cannot assume on arrival that their career and life in the UK will be long term or indeed permanent.

The proposal to restrict Tier 2 (General) migrants to a five year maximum stay in the UK is likely to impede many employers’ ability to attract highly skilled migrants to work in the UK.

For many Tier 2 migrants in the UK, their drive is to establish a successful career and to make a good life for themselves and their family. They have often completed extended and demanding stints of study and training in order to gain the qualifications and experience which have made them attractive to multinational companies seeking the best worldwide talent in any given area. Their aim is typically to forge successful, stable employment with a multinational employer with whom their skill and expertise is recognised and rewarded.

Clearly, such individuals will be astute at recognising that a cap on their period of leave in the UK would restrict their prospects of progressing to the higher levels of a company, if their stay is capped at five years. Further, if they move with their families to the UK, these proposals would cause disruption to spouses and children who after five years have settled into careers or schools in the UK. The proposals may cause migrants to go elsewhere than the UK, resulting in skills gaps for employers based in the UK.

From the employer’s perspective, the benefits of immigration are often long term, as employers recruit from overseas in order to fill skills gaps in the UK workforce. At the end of the five year period, an employee will have gained a wealth of experience and knowledge of the company’s business as well as in their area of expertise. To let these valuable employees go at the end of five years and to train up new starters may be expensive to some companies, and may force them to move outside the UK. Conversely, the proposals may work to the advantage of some employers who could bring in cheaper, albeit less experienced, employees each five years to undertake their work.

In any event, the long term effects of these measures to the UK economy and to multinationals based in the UK would be seen long after the close of the current parliament in 2015.

Will Tier 1 be affected?

It is worth pointing out that the proposals would apply to those first entering the UK from 6 April 2011. Those who are currently in the Tier 1 (General) category would not be affected as they would have entered the UK before 6 April 2011. The Government are unlikely in any case to place a cap on this category as it is made up of migrants who significantly contribute to the economy, such as entrepreneurs and investors.

Gillian McKearney,
Newland Chase, August 2011