Last week saw the launch of a major three-month Home Office consultation on, among other things, employment-related settlement in the UK, with a clear aim to eliminate permanent settlement except in the most limited cases.
The Government's plan, coming in the wake of the launch of the permanent immigration cap in April, is to rebrand the Tier 2 (General) sponsored route as entirely temporary, with a few exceptions.
What does this mean?
Represented in Tier 1 are individuals who are considered 'high value' and therefore not needing to be sponsored to seek permanent residency in UK, but Tier 2 are those highly skilled individuals whose ability is keenly sought by UK employers and therefore should have a right to enter the UK to work - but, as we now know, only temporarily.
The message from home secretary Theresa May was clear: "Only Tier 1 will give a pathway from entry to settlement for investors and entrepreneurs… We expect that most Tier 2 migrants will return home at the end of their stay." The public has until 9 September to respond to the consultation.
These statements also reinforce the UK Border Authority's move away from 'highly skilled' to 'high value' migrants - those who can contribute the most to the UK economy and society.
This emphasis on the temporary is not new. Since April 2010, intra-company transferees entering the UK have been excluded from the possibility of settlement, while the criteria for being able to remain in the UK indefinitely were toughened in April through further points testing and the new non-criminality requirement.
However, the Government is now proposing two radical changes.
The first is to limit all Tier 2 (General) applicants' stay in the UK to five years, with no possibility for extension. The second provides the possibility for "a small number of the brightest and the best" to apply to switch to a permanent visa category after three years. Very thoughtfully, the consultation states that, where a Tier 2 migrant is unsuccessful in switching to a permanent visa category after three years, "this allows the sponsoring business and the migrant two years in which to plan for the migrant's departure from the UK".
So imagine the scenario: a UK employer has advertised widely to fill a permanent vacancy in the UK. There are no suitable candidates either here or in the EU, so the job is offered to a US national, a highly skilled individual with a spouse and school age children. When the prospective employee asks about their visa, the HRD responds somewhat apprehensively: "Well, you will get a visa, but this is temporary. You might have the possibility of applying for permanent residence after three years if you come within the cap/score enough points/are selected by a lottery, but we cannot guarantee anything. And if you don't get permanent residence, the Government will give you two more years, then you and your family will have to go back home to the US."
It should be remembered that Tier 2 (General) is a specific category where a 'resident labour market test' has already been carried out by the employer. With this proposed change, the UK would have no employment-based permanent residence immigration category. This is a risky proposition for a developed economy seeking to attract the brightest and the best from around the world. Talented prospective employees will want to know from the outset that their decision to move is permanent, while employers seeking to attract and retain these individuals may well be thwarted.
Finding the dividing line between temporary and permanent immigration is an extremely difficult task for any government. The US scheme for an adjustment of status to an employment-based Green Card is a labyrinthine and lengthy process - navigating residency for highly skilled migrants leaves them in an uncertain position for several years. In contrast, the Australian system provides for temporary entry in the first instance under the 457 visa, but with the possibility of moving into the permanent category at any stage. However, if the migrant chooses not to do so, they can remain on their temporary visas indefinitely.
The UK Government should remember that clarity and certainty are the two major factors in ensuring a successful immigration policy.
Nicholas Rollason is partner, business immigration, at law firm Kingsley Napley
