· 3 min read · Features

Immigration Law: less change needed, not more


It is interesting to note how high immigration now features as an agenda item, says Gavin Jones.

The UK (like almost every other country) is suffering with a slow economy and a lack of job opportunities. These are the catalysts for looking at overseas nationals coming to the UK, including those who come as workers and those who come as dependants or to join resident family members.

Since July 2010, the Government has made 10 formal changes to the Immigration Rules. Some were minor, merely correcting errors in previous changes, others more substantial and part of a concerted effort to make entry into the UK harder. The fact that there have been 10 formal changes as well as a series of consultations on further changes in just over a year, indicates the level of scrutiny that immigration is now attracting.

Of the significant changes, there are three that are worth closer inspection. First, the 'Cap' of 20,700 new work permits per year. This was announced with great publicity, but what was glossed over was the vast number of overseas nationals to whom this Cap did not apply. The Cap looked to restrict numbers of new employees coming into the UK for graduate jobs earning less than £150,000 per year. To date, less than half the number of available certificates have been used. This is less an indicator that controls are working and more a reflection that the economy is struggling.

The second major change is the amendment to the visa appeals process. Since May, it is now no longer possible to introduce new evidence to an appeal – even if it existed at the time of the original application. This change was designed to cut down the number of 'groundless' appeals. Cynically, it also means many more fresh applications – with new application fees.

Finally, the Post Study Work visa will close from April 2012. Given that applicants need to apply within 12 months of graduation, there are few potential applicants left. This has a wide-ranging affect. Given the high fees paid by overseas students, by removing the ability to earn something back, the UK becomes very unattractive and universities are already concerned about a downturn in applications.

The Government also launched two key consultations. The first covered workers and settlement – whether overseas workers should continue to have the right to stay in the UK after working for five years. The consultation also looked to see if changes were needed to the rules governing temporary workers and domestic staff. It is highly likely that significant restrictions will be introduced on these groups later this year with longer qualifying periods and/or higher earnings criteria being required before settlement can be granted. The second consultation is just closing and is looking at whether there are changes needed in respect of those seeking to enter the UK to join family members that are already resident. Again, we can expect further restrictions here.

During their annual conferences, the three main political parties sought to herald solutions and criticise the others for their handling of the immigration issue. The Liberal Democrats propose an even more complicated points system to encourage workers to take jobs away from crowded parts of the country. However, it may find that it needs industry to create demand in those more remote areas first. The Conservatives are looking to opt out of European Human Rights legislation in order to deport criminals (even those that do not have cats).

Employers bear the brunt of most of the changes. As things stand, they are obliged to ensure that employees have the ability to work in the UK. Depending on when the employment commenced, the employer has additional ongoing obligations. For employees who started after 29 February 2008, the checks may need to be made at least annually. The continual changing of the Immigration Rules and processes makes for even more of a burden for employers.

As the Government has taken significant steps to reduce the ability of non-EEA nationals to commence work, its next target will be to focus on employers that are not complying with their obligations. This is making life much tougher on employers who have to keep up-to-date with the changes.

Coming into force over the past year were significant pieces of legislation regarding agency workers, retirement age and bribery. Employers need less change, not more, so that they can focus on business as opposed to further legislation and regulation.

Gavin Jones is head of immiagration at solicitors Blake Lapthorn