SUBMISSION TO UKBA LIMITS ON NON EU ECONOMIC MIGRATION CONSULTATION SEPTEMBER 2010 Migrants Rights Network (MRN) The Migrants Rights Network (MRN) was established in December 2006. We work to support migrant community organisations and organisations working with migrants, on issues related to employment, the community, access to public services, and on other matters which have consequences for migrants rights and social justice. We work within a framework of discussion, sharing of experiences, promotion of research, policy analysis and lobbying and campaign activities. Currently over 1800 organisations and individuals participate in MRN s policy discussion and information exchanges. Introduction and summary of submission The government s proposal to introduce a cap on economic immigration to the UK has been of concern to MRN and the organisations we work with, as we do not favour a policy which has as its central objective the reduction of net migration to the UK to the levels seen in the early 1990s. This agenda prioritises a narrow set of interests, and risks creating negative short and long term impacts on those migrants moving through the system, as well as to businesses and public service providers who are the key employers of migrants in the UK. We have submitted our concerns about the way that the cap on economic immigration has been conceived and framed to the Migration Advisory Committee during September 2010. Of particular concern to MRN, in relation to the set of practical proposals relating to the cap put forward by UKBA, is their potential impact on the rights and interests of migrants seeking to enter or renew their stay in the UK. Our experience of the Points Based System (PBS) since its roll out in 2008 is that it has failed to accommodate or represent the highly varied experiences associated with migrant workers in regions and sectors across the UK. A wide range of issues have cropped up for migrants in relation to the design of the PBS. The PBS relies upon a narrow conception of skills which has made it impossible for some migrants to meet the requirements for work in the UK, despite their potential contribution to filling labour market needs. The flexibility of the PBS has also led to difficulties for those migrants who have found the rules changing with rapid and unpredictable effect recent successes of the English UK and Pankina court cases have called into question backdoor rule changes within the PBS 1. Overall, we think the UKBA proposals within this consultation would make it substantially more precarious and costly to seek to enter, or to extend stay within, the UK for work. In the short-term, this would be likely to result in many migrants finding themselves made more vulnerable by the additional insecurity this creates. Ultimately, the long-term result would likely be the reduced attractiveness of the UK as a destination for what the government itself terms the brightest and the best migrants from across the world. Questions for consultation Tier 1 Options Q1. Do you agree that operating a pool for highly skilled migrants on the basis described above will be the fairest and most effective approach? 1 MR JUSTICE FOSKETT in English UK vs SSHD, [2010] EWHC 1726 http://www.bailii.org/cgibin/markup.cgi?doc=/ew/cases/ewhc/admin/2010/1726.html&query=title+(+english+)+and+title+(+uk+ )+and+title+(+v+)+and+title+(+home+)+and+title+(+department+)&method=boolean
Q2. If you answered yes or no to the previous question, please give your reason(s). In our opinion there should be no cap on highly skilled migrants. The government has stated its commitment towards attracting the brightest and the best immigrants to the UK of which highly skilled migrants are a critical part. According to the MAC, there is a clear economic case for selective highly skilled immigration in the UK 2. Highly skilled migrants are additionally recognised as critical in sustaining the UK s position within the global knowledge economy 3. Highly skilled migrants are already rigorously selected on the basis of their skills, prior earnings, qualifications and capacity to support themselves in the United Kingdom without recourse to public funds. There is a lack of evidence to show that further restrictions on highly skilled migrants are needed. On the contrary, existing restrictions on highly skilled migrants are already resulting in a decline in numbers coming to the UK for work PBS visas dropped from 107,125 in the year ending in June 2008 to 94,550 during the following 12 months 4. The operation of a pool system for Tier 1 migrants as proposed by the home office would be unfair and unproductive. Applying for a Tier 1 visa is already costly and time consuming. The proposed pool system would increase the insecurity of migrants entering and moving through the immigration system. Our understanding is that this would require everyone applying to enter under Tier 1 to wait for a six month period before being invited to make a full application making the application process slow-moving and insecure. It is also unclear from the consultation document whether introducing a pool system would involve additional costs for Tier 1 migrants (i.e. whether a fee would be levied in order for them to enter the pool, in addition to the existing application fee). Bringing about an increase in the costs for migrants would be unfair and likely to lead to an overall reduction in applications. Tier 2 Options Q3. Do you agree that operating a first come first served system for skilled migrants available to individual sponsor employers will be the fairest and most effective approach?. Q4. If you answered yes or no to the previous question, please give your reason(s) We do not think there should be a cap on immigration for skilled migrants, including those migrants coming to the UK under Tier 2. Skilled migrants provide valuable labour for key areas of the economy where there are identified labour shortages, to fill vacancies which cannot be filled from the UK labour market, and to enable transnational companies to transfer foreign employees into the UK. In August 2009, the MAC reviewed the possibility for further restricting entry of skilled migrants under Tier 2. Beyond making specific recommendations to improve the system, the MAC did not recommend any radical change to the current Tier 2 framework 5. The critical contribution both of skilled migrants and of their dependents to the UK economy was reiterated in the MAC assessment. There is no wholly fair means of operating a cap on skilled migration, as success in applying is subject to chance. By operating a cap according to a quarterly first come first served approach, it would be likely that there would be a swell of applications submitted at the beginning of each quarter. This would increase the demands on administering the scheme, as well as the possibilities of bottlenecks within the system, resulting in delays and insecurity for applicants. 2 Analysis of the Points Based System: Tier 1, Migration Advisory Committee December 2009 3 Towards a Global Labour Market? Globalisation and the Knowledge Economy, Katerina Rudiger, Work Foundation, June 2008 4 Control of Immigration: Quarterly Statistical Summary, United Kingdom April June 2010, Home Office, http://rds.homeoffice.gov.uk/rds/pdfs10/immiq210.pdf 5 Analysis of the Points Based System: Tier 2 and dependants, Migration Advisory Committee, August 2009 http://www.ukba.homeoffice.gov.uk/sitecontent/documents/aboutus/workingwithus/mac/pbsanalysis- 09/0809/mac-august-09?view=Binary
Q5. Do you believe that where a quarterly quota is filled applications that have not yet been considered should be rolled over to the following release? Yes. Q6. If you answered yes or no to the previous question, please give your reason(s) If a quarterly quota were introduced, it would only be right for those applications which hadn t yet been considered be rolled over to the subsequent quarter. Given the time and cost of making the application, it would be unfair if the applicant were required to submit a fresh application in the following quarter. However, the disadvantage of rolling over applicants would be felt by the next set of quarterly applicants, who would be more likely to in turn have their applications rolled back to the next quarter, and so on. This would make the system even less able to meet labour market demands for migrant workers in a timely and effective manner. Q7. Do you think the Government should consider raising the minimum criteria for qualification under Tier 1 of the Points-Based System?. Q8. If you answered yes or no to the previous question, please give your reason(s) The establishment of the criteria for Tier 1 of the PBS is a matter for the Migration Advisory Committee to determine, on the basis of the evidence available to it at the time. The MAC 2009 report into Tier 1 recommended that minimum criteria for this route in fact be lowered rather than raised for applicants 6. Tier 1 criteria should not be raised if there is no economic justification for doing so. Q9. Do you think the Government should provide for additional points to be scored for the following factors? Higher level English language ability?. Skilled dependants?. UK experience?. Shortage skills?. Health Insurance?. There is no evidence that any further limits are needed on Tier 1 applicants. Q10. Do you think there are any other factors that should be recognised through the points system? If yes, please give details Yes, the PBS currently largely fails to accommodate regional variations across the UK, aside from the Scotland-specific shortage occupation list. Instead of introducing a cap, the government should seek to address regional demand for migrant labour through the PBS, by linking sponsorship to regional employment opportunities. INVESTORS AND ENTREPRENEURS Q11. Do you agree that Tier 1 Investors should be excluded from the annual limit? Yes. Q12. If you answered yes or no to the previous question, please give your reason(s) Inclusion of investors in a limit would be irrational. If they have the funds and their investment is likely to prove productive for the UK economy they should in all instances be welcomed to the UK. Inclusion would is also likely to mean a higher level of refusals for other categories of workers, which would be counterproductive for all the reasons set out in this submission. 6 The MAC recommended that stringent requirements on qualifications, which currently require a masters qualification as the threshold for entry, be eased. It recommended that people with appropriate professional qualifications, specific undergraduate degrees and bachelors degrees subject to an earnings threshold, be allowed to enter under Tier 1.
Q13. Do you agree that Tier 1 Entrepreneurs should be excluded from the annual limit? Yes Q14. If you answered yes or no to the previous question, please give your reason(s) Same reason as Q12. Q15. How can the UK make itself more attractive to investors and entrepreneurs who have the most to offer in terms of driving economic growth? Please give your ideas The ability of the UK to attract foreign investors and entrepreneurs is closely related to its policies on immigration. In order for the UK to appear open for business to foreign trade, it needs to send a clear and positive message about its position as a global partner, and willingness to accommodate foreign workers as well as capital. This has been demonstrated by the negative response of the Indian government to the proposal of a cap on economic migrants, which has threatened to undermine UK attempts to advance vital trade agreements with India 7. INTRA-COMPANY TRANSFERS Q16. Do you agree that the Intra-Company Transfer route should be included within annual limits?. Q17. If you answered yes or no to the previous question, please give your reason(s) The intra-company transfer route has been noted by the MAC as important in terms of ensuring the UK remains globally competitive and continues to attract high levels of inward investment 8. It currently comprises 60% of the economic migrants coming to the UK under Tier 2, and is critical for businesses of all sizes operating in the UK. If the intra-company transfer route is subject to a cap, it is likely that there would be significant impacts on businesses which rely upon flexible movement of personnel across national borders. DEPENDANTS Q18. Do you agree that dependants should be included towards the limit? Q19. If you answered yes or no to the previous question, please give your reason(s). There should be no annual limits on economic migrants and certainly not on dependents. The UK has committed to giving favourable consideration towards family reunification through the ratification of a series of international agreements, including the International Labour Organisation Migration for Employment Convention 1949 and the Council of Europe Social Charter. There are already tight restrictions in place determining which dependents of migrant workers in the UK can join main migrants in the UK, and under what circumstances. Adopting a further limitation on family reunification via an annual cap would mean that some migrant workers would find themselves unable to be joined by their close family members. It would signal a considerable change of culture within the UK, and would put in jeopardy the UK s adherence to its international commitments. Inputs from organisations within the MRN network indicate that the ability for family members to join migrant workers in the UK is a critical precondition for migrants to lead a happy life in the UK. Migrants under Tiers 1 and 2 are likely to stay in the UK for a number of years a substantial amount of time to be expected to work in the UK without the presence of family 7 As reported on the BBC website, 27 th July 2010 http://www.bbc.co.uk/news/uk-politics-10781814 8 Analysis of the Points Based System: Tier 2 and dependants, Migration Advisory Committee, August 2009 http://www.ukba.homeoffice.gov.uk/sitecontent/documents/aboutus/workingwithus/mac/pbsanalysis- 09/0809/mac-august-09?view=Binary
members. As a result, the reduced migration of dependents via a cap, particularly a cap aiming to reduce dependent numbers by proportionately more than those of main migrants, could be expected to have significant implications for the capacity of the UK to attract, and retain, international talent. Policy-makers could expect that the attractiveness of the UK as a destination for skilled migrants in the future would be substantially reduced as the potential for workers to lead a family life in the UK, in addition to working, became more difficult and subject to arbitrary impediment. From an economic perspective, the rationale behind additionally capping the number of dependents to the number of main migrants is unclear. As they are not entitled to claim public services or benefits, dependents are necessarily self-sufficient. Evidence also indicates that many dependents provide an additional tax contribution whilst in the UK: the MAC, in a 2009 report considering the role of Tier 2 migrant dependents within the UK labour market, concluded that, although little data is available on Tier 2 dependents, it was possible to conclude that a significant proportion of migrant dependents are skilled and working in the UK labour market whilst here 9. THE SHORTAGE OCCUPATION AND RESIDENT LABOUR MARKET TEST ROUTES Q20. Do you believe that the Shortage Occupation and Resident Labour Market Test routes should be merged in this way (as described in the consultation document)?. Q21. What, if any, do you think would be the advantages of merging the Shortage Occupation and Resident Labour Market test routes? Please give details N/A Q22. What, if any, do you think would be the disadvantages of merging the Shortage Occupation and Resident Labour Market test routes? Please give details There is no evidence that supports the merging of the Shortage Occupation and resident Labour Market test routes. On the contrary, the MAC, when asked to consider the possibility of removing the RMLT route in 2009, reported that we do not think there is an economic case for restricting Tier 2 to the shortage occupation route only. All of the existing routes should be retained. The RLMT route plays a key role in supporting key public services 10. It is likely that if the Shortage Occupation and RLMT routes were merged, that public service providers would be severely affected in particular health, social work and education services, the highest users of the RLMT currently. In this context, both routes under Tier 2 should be retained. Q23. When do you think this change should be implemented? Please select one answer only. This change should not be implemented. Q24. What considerations should be given to advertising requirements? If any such change were introduced, it would be likely to cause substantial confusion among potential applicants. UKBA would need to take substantial steps to publicise the change and to ensure that potential applicants were fully aware of the new limitations under Tier 2. SPONSOR RESPONSIBILITY Q25. Do you believe that the Government should extend sponsor responsibilities in these ways (as described in the consultation document)? Please select one answer only. Q26. If you answered yes or no to the previous question, please give your reason(s) 9 Ibid, MAC 2009 10 Ibid, MAC 2009
The requirements made of migrant sponsors are already high it would not be either practical or reasonable to demand that all employers of migrant workers support national apprenticeship schemes. Data on public service consumption according to immigration status is scarce, but there is certainly no conclusive evidence that non-eea migrants place any undue burden on local public services, including the NHS. It would be impractical and disproportionate to require all employers to hold health insurance for their workers. ENGLISH LANGUAGE RESPONSIBILITY Q27. Do you think that the Government should raise the English language requirement for Tier 2?. Q28. If you think that the Government should raise the English language requirement for Tier 2, to what level do you think it should be raised? REDUCING DEMAND FOR SKILLED MIGRANTS Q29. If a supply of migrant workers is no longer readily available, what action will you take to train and source labour from the domestic market? Please give details Our view is that the design and promotion of educational and vocational training in the UK should be developed independently of restrictive immigration policies. The task of equipping UK residents with the skills and motivation they need to be successful in the labour market or business is, we understand, already sufficiently complex and is unlikely to be aided by reference to jobs or sectors which government feels UK citizens should be shoehorned into to assist it meeting migration control goals. Claims from government that migrant workers can simply be replaced by newly skilled UK residents are misleading and likely to disappoint both employers and UK residents who discover that upskilling the British workforce is a complex and long-term process. We favour greater investment in training and up-skilling of the resident labour force and think that a great deal more could be done through government policy to obtain better outcomes. We believe that these better outcomes are available to be obtained without reference to the presence of migrants in the labour force.
About Migrants Rights Network: Q30. What is the name of your organisation? Migrants Rights Network Q31. What is your position within the organisation? Policy officer Q32. Are you self-employed? Q33. Are you registered as a sponsor with the UK Border Agency? Q34. What is the nature of your organisation? Voluntary/t for profit Q35. How would you describe the size of your organisation? Micro organisation (1-9 employees) Q36. Please select the box that best describes the industrial sector to which your organisation belongs? Education and cultural activities Q37. In which region(s) of the UK is your organisation based? All UK Q38. Approximately how many migrant workers do you currently employ? (By migrant workers we mean any foreign nationals working in the UK on a temporary or permanent basis). 1-5 Q39. Approximately what percentage of your total workforce is made up of migrant workers? 76-100% Q40. If applicable, from which countries do you recruit migrant workers? Please select all that apply. All Q41. If applicable, do you employ migrant workers on a temporary or permanent basis? Both