Chapter 11

11.2 A brief history of entry to the UK to work and the development of the work permit scheme

In R (on the application of HSMP Forum Ltd) v SSHD [2008] EWHC 664 (Admin) Newman J commented on the correspondence with the Commission for Racial Equality concerning the impact of racial discrimination on highly skilled migrants, with the inference that the fact that some had not yet acquired work commensurate with their skills and ability might well be attributable to racial discrimination. He found that the application of new rules to those who had already got leave to enter on the programme breached a legitimate expectation (see also update on 8.5.3).

Tier1 of the Points-based System began to come into force on 29th February 2008 with immigration rules setting out the details of requirements and applications methods (HC321). The new rules and transitional provisions are extremely detailed. Tier 1 (General), in effect from 30th June 2008, replaced the Highly Skilled Migrants Programme, the International Graduates Scheme, the Fresh Talent: Working in Scotland Scheme, and the rules for business-people and innovators, investors, writers, composers and artists (HC 607). Tier 1 covers four routes of entry and stay: General (for highly skilled employed and self-employed); Entrepreneurs; Investors and Post-Study Work. See the UKBA website: www.bia.homeoffice.gov.uk/sitecontent/newsarticles/2008/tier1launch.

Tiers 2 and 5 came into effect on 27th November 2008. Tier 2 replaced the work permit system, and no more applications for work permits will be accepted. Tier 2 contains the following key features:

All prospective entrants need entry clearance
All migrants under Tier 2 must have a sponsor who is licensed by the UK Border Agency
Instead of a work permit and a visa, there is a single decision, made by the Border Agency.
Migrants must obtain 50 points for a combination of attributes set out in an appendix A to the immigration rules. These are related to the job offer, to qualifications, prospective earnings and age. For instance person coming to fill a vacancy in a shortage occupation gets all their 50 points from that fact alone.
Migrants must show English language capacity, except in the case of intra-company transferees who stay for less than three years
Migrants must have £800 available to support themselves.
May bring dependants – need £533 to support each dependant.

The rules are very detailed. There are four sub-categories:

Tier 2 (General) for skilled workers coming to do jobs where the employer has shown that they cannot recruit from the resident (EEA) labour market
Tier 2 (Intra Company Transfer) - as before
Tier 2 (Ministers of Religion)
Tier 2 (Sportsperson) for ‘elite’ (explanatory notes) sportspeople or coaches.

Tier 5 is for temporary migrants and is divided into Youth Mobility and Temporary Workers. The Temporary Workers category includes sub—categories;

Creative and sporting;
Charity workers – for people coming to do temporary and voluntary work for a charity;
Religious
Government authorized exchange – schemes aimed at sharing knowledge, experience and best practice;
International agreement – providing a service in circumstances covered by an international treaty to which the UK is party – e.g. private servants in diplomatic households.

Key provisions are:

All need entry clearance unless they are coming for three months or less in the creative and sporting category and are not visa nationals;
30 points needed for attributes under Appendix A
Savings of at least £800 or an A rated sponsor who certifies the migrant will not claim public funds
Maximum stay 12 months for creative and sporting, two years otherwise.
May be accompanied by dependants – need £533 to support each one.
May not settle or switch into any other category.

11.5 Work permit employment

As referred to above, the work permit scheme, including TWES, is closed as from 27th November 2008.

**11.5.5 Doctors and the BAPIO case**

As mentioned in the update to 8.5.5, BAPIO’s challenge to the DoH guidance succeeded in the House of Lords. See that update for the grounds. The rule which the Home Secretary declined to make, and which pushed the DoH to take matters into their own hands, is now incorporated into the immigration rules. The rules instituting Tier 1 (General) under the Points-based system (HC 321) which is intended for highly skilled migrants include in the conditions that will be attached to Tier 1 general leave ’no employment as a doctor in training’ unless the applicant, inter alia, has entry clearance as a Highly Skilled Migrant which was not subject to a condition prohibiting employment as a doctor in training (rule 245C (b)). Entrance as a Highly Skilled Migrant was phased out on 29th June 2008, and between 29th February and 29th June was also subject to a condition prohibiting employment as a doctor in training (rule 135B). The spouses of highly skilled migrants under the PBS are subject to a prohibition on employment as a doctor in training (rule 195 as amended by HC321 para 17).

11.6 Specified occupation – non-work permit employment

The following routes are deleted from the immigration rules by the November 2008 changes: overseas qualified nurses and midwives; representatives of overseas newspapers; operational ground staff of overseas owned airlines; exchange teachers and language assistants; private servants in diplomatic households; non-pastoral and visiting religious workers; retired persons of independent means. Those wishing to pursue these activities in the UK would generally be covered by Tier 2, Tier 5 or the new business and special visitor rules. Retired persons of independent means are not covered by these, and this route of entry to the UK has been closed. In its consultation process, the Paths to Citizenship, the UKBA said that fewer than 20 applications per year were received in this category, and there was a concern that those who did enter might draw heavily on health services.

11.6.1 Ministers of religion

The former rules applying to ministers of religion are deleted with effect from 27th November and they are now a sub-category within Tier 2 of the points-based system.

11.6.4 Resident domestic workers

In its response to the Consultation on Visitors, the government said that research was still ongoing into how to treat resident domestic workers in the new system. The current route would be maintained for two years while the new anti-trafficking strategy was being tested.

11.7 Establishing a business and
11.8 Special schemes

All these are now subsumed for new applicants under Tier 1 of the Points-based system as stated above.

11.8.2 Highly Skilled Migrants Programme

Following the success of the HSMP Forum's application in the High Court, on 9th July 2008 the Home Office issued a policy to implement the judgment. The main effect is to apply the HSMP rules as they were before 7th November 2006 to those who were adversely affected by the rule change (see HSMP FORUM LTD JUDICIAL REVIEW: POLICY DOCUMENT, available at www.bia.homeoffice.gov.uk/sitecontent/documents/workingintheuk/hsmpjudicialreview). The significant part of this policy is a transitional measure applying to the people who had leave at 7th November 2006. As mentioned in the update to 8.5.3, in R on the application of HSMP Forum (UK)Ltd v SSHD [2009] EWHC 711 this policy was held to be unlawful insofar as it purported to apply the five year requirement for ILR to highly skilled migrants granted entry on the earlier form of the scheme when settlement was acquired after four years on the programme.

HSMP leave as such was abolished for new applicants as from 30th June 2008. From that date, Tier 1 (General) is the route for highly skilled migrants. A Tier 1 (General) migrant must obtain 75 points for the attributes listed in Appendix A to the rules, 10 points for English language as set out in appendix B and 10 points for available funds as set out in appendix C. In accordance with the tenor of the changes introduced in November 2006, in appendix A points are awarded for qualifications, earnings, assets and youth. Previous experience only counts if it was in the UK, despite the comments of the Commission for Racial Equality (see HSMP Forum case).

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Oxford University Press, Online Resource Centre, Chapter 11.