The British Government recently announced interim limits on non-EU migrant workers with effect from the 19th July 2010 and confirmed that a permanent cap would be imposed in April 2011. The measures (discussed in more detail below) have serious implications for architectural practices as well any non-EU migrants they are seeking to employ or continue to employ.
Tier 1 (General) visas are issued to highly skilled migrants (either with or without a job offer in the UK) who have earned sufficient points based on their qualifications, previous earnings, UK experience, age, English language skills and available maintenance funds. The interim limit in this case will be applied monthly to all Tier 1 (General) applications submitted from outside the UK which will be considered on a first-come, first-served basis. Those who apply after the limit has been reached will have their applications held and considered under the limit for the following month. The monthly limit will mean that success is highly dependent on the timing of an application (even though this has nothing to do with being highly skilled), rather than meeting the points criteria. With this degree of uncertainty, highly skilled non-EU architects who might otherwise qualify under Tier 1 are now likely to be deterred from coming to the UK, particularly if they need to be able to give a prospective employer more than a vague idea of their expected arrival. The Tier 1 (General) pass mark is also being increased from 95 to 100 points for all applicants other than those seeking to extend their leave to remain in the UK under Tier 1 (General) or the Highly Skilled Migrant Programme. The Government has insisted that it still wants to attract highly skilled migrants to the UK but, in raising the pass mark, mistakenly assumes that high level skills can only be demonstrated through high earnings. The most likely consequence of the raise in pass mark is that applicants will be required to have earned the
equivalent of an extra £5,000 in order to qualify. This is likely to hit architects harder than most given that their salaries are generally lower than other professions with comparably lengthy training periods. In practice, it means that a non-EU qualified architect with over 5 years’ post-qualification experience (likely to have been earning less than £40,000 on the UK Border Agency’s own analysis) would not now qualify to come to the UK under Tier 1 (General) whereas a lawyer or accountant at a similar level is likely to qualify without issue. In a double blow, architects may also fail to get sponsorship under Tier 2 (General) no matter how vital their expertise might be to a UK business.
Tier 2 (General) visas are issued to skilled migrants with a job offer. The interim limit in this case will apply to both those being sponsored under the ‘shortage occupation’ category (which applies to some engineers but not architects) or in a role that their employer has demonstrated cannot be filled from the resident labour market. Rather than a monthly cap, each sponsoring employer will be required to sponsor fewer migrant workers between now and April 2011 than it did in the equivalent period last year. Sponsors may request additional certificates of sponsorship (‘CoS’) but these will only be approved in exceptional circumstances. This aspect of the interim limit is going to be particularly difficult for those architectural practices that issued very few CoS last year because of the recession but who now anticipate a material increase in recruitment as work picks up or, at the very least, need some certainty that they will be able to recruit from outside the EU as and when project demands dictate. Small comfort can be taken from a sponsor’s ability to request additional CoS, as current UK Border Agency response times to similar requests can be anything from 4 to 8 weeks by which time the sponsor may have lost the migrant worker it was hoping to employ or, worse, the project it was seeking to resource.
The political impetus for imposing both the interim and permanent limits is clear. The Government has to be seen to follow through on its pre-election promise to reduce net migration to tens of thousands. But the reality is that net-migration was just 163,000 in 2008 (the most recent figure available) of which migrants on Tier 1 and 2 visas (and their dependants) represented less than 20%. The planned measures are therefore just a token gesture and will not affect the general public’s perception that immigration is a growing problem. Worse still, the indiscriminate nature of the measures means that even the most highly skilled migrants (those that are
likely to bring significant value to a recovering economy) will be deterred or prevented from coming to the UK, not just those at the lower end of the skills spectrum. At the same time, the measures will damage those businesses (including architectural practices) which need a certain degree of freedom to fill skills gaps in their workforce if they are to sustain any sort of growth. The Government attributes the current immigration situation to ‘uncontrolled’ migration yet any business that has tried to hire a non-EU migrant worker recently will be fully aware the current points based system is anything but uncontrolled and not something that employers enter into on a whim. If further restrictions on migrant workers must be imposed, these should be implemented through carefully analysed sector specific criteria to ensure that businesses still have access to the ‘the brightest and the best from around the world’ and architects are recognised for their expertise and experience not just their earning potential.
Proposals for the permanent limit on non-EU migrant workers from April 2011 will have further serious implications for all businesses. Those who are affected can make their views known through two consultations, further details of which can be found by clicking here
Annabel Mace is a Senior Associate and the Head of Business Immigration in Hammonds LLP’s Employment (Business Immigration) team based in London. Her particular expertise covers advising on all aspects of employment law and business immigration both at individual and corporate multi-national level in a variety of sectors including media, marketing and communications, finance, architecture and IT and technology.
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Editorial , London
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