HR Law summarises some recent changes to the Points Based System for economic immigration, and asks what further change may be in store after a General Election in which immigration has featured prominently.

On the day that Gordon Brown called the general election, the UK Border Agency of the Home Office (UKBA) implemented changes to the criteria for skilled and highly skilled migrants under Tiers 1 and 2 of its flagship points-based system (PBS).

The changes, first announced in March, arise from the Migration Advisory Committee (MAC)’s recommendations, published last year following a Government request to consider how these Tiers of the PBS were working in practice and might be adjusted to reflect labour market conditions. The main changes to date are:

Tier 1 ( General ) – Highly Skilled workers

A minimum of 75 points for attributes (consisting of qualifications, prior earnings, age and UK experience) are still needed, in addition to evidence of maintenance funds and a high level of English, each attracting 10 points. However, the calibration is adjusted. The key changes are:

  • Points (30 in total) are once again awarded for bachelor’s degree-level qualifications. For the past year, Tier 1 (G) has been restricted to masters’ graduates and above
  • Applicants with recent earnings of £150,000 or above can now obtain enough points to qualify under Tier 1 even if they have no formal qualifications at graduate level.
  • Pay differentials are adjusted so that fewer points are available to lower earners.
  • Initial leave to come to the UK under Tier 1 is cut from three to two years. Extensions increase from two to three.

Tier 2 (skilled workers with a job offer)

The changes are to Tier 2 (General) and Tier 2 (Intra Company Transfer) (“ICT”); the specialist sports and religious workers categories are not affected.

Tier 2 (General)

Tier 2 assesses future rather than past earnings, but again the minimum salary criteria has been increased.

  • The migrant worker will no longer be required to submit a new application if he changes jobs as long as he remains with the same employer and within the same Standard Occupational Classification code (“SOC”).

Tier 2 (ICT)

ICTs have now been split into three new subcategories: Established Staff, Graduate Trainee amd Skills Transfer.

1)  Tier 2 ICT: Established Staff permits established employees to be transferred into a UK sponsor for the purpose of applying specific knowledge gained with an overseas branch, where that expertise is not available locally.

  • The minimum qualifying period of previous employment with the overseas entity is doubled from 6 months to 12 months.
  • For new entrants, the ICT category no longer leads to settlement (indefinite leave to remain). Transitional arrangements preserve the entitlements of those already in the category.

2) Tier 2 ICT: Graduate Trainee – this new subcategory allows employers to transfer graduate recruits from an overseas to a UK branch, but only for the purses of training.

  • Migrants may only be sent to the UK as part of a structured graduate training programme with clearly defined progression towards a managerial or specialist role.
  • The maximum length of stay is 12 months; the migrant should not be coming to the UK in order to fill a vacant post or displacing a resident worker.
  • The minimum qualifying period of employment within the “sending” entity is 3 months.

3) Tier 2 ICT: Skills Transfer – enables temporary transfer of overseas staff to the UK to acquire or impart skills or knowledge relevant to their role.

  • The UK must be incidental to the role overseas, and additional to UK staffing requirements, except insofar as the requirement to impart skills to local workers applies.
  • The maximum stay in this subcategory is 6 months.
  • The subcategory is open only to graduate occupations listed in the codes of practice.

It is a safe bet that, after the election, more changes will be on the way.

What next?

Immigration featured prominently in the party leaders’ election debates. After the final debate, which generated the most heated exchanges, it was proclaimed by the media as second only to the economy in importance as an election issue.

For HR mangers wondering what further upheaval might follow the election result, we have some (we hope) reassuring observations:

  • For all the talk of a need for more sweeping change and robust action, most immigration to the UK occurs under European free-movement provisions and therefore cannot be curbed or further restricted unless the UK withdraws from the EU, which is not proposed by any of the main parties who would have a place in Government.
  • Many of the tough/sharp/clever ideas mooted by the leaders in the debate or referenced more substantially in the manifestos are already here in some form (English tests, quotas and – yes, a points based system!) and would probably not be expanded significantly beyond where we are already as far as business immigration is concerned, because it would be too complicated, expensive and anti-business to do so (see below).• Sweeping change and robust action cost a lot of money and are less popular in practice than theory. There has never been less money in the system. UKBA is already suffering collective exhaustion from the massive overhaul that heralded the PBS – itself resulting from Labour’s 2005 manifesto, and which has not proved to be the resounding success that was promised in terms of delivering simplicity, fairness and transparency.
  • The Conservatives have, on the face of it, the most restrictionist policies, but once in power they are most unlikely to alienate key support from employers’ organisations by preventing the recruitment of skilled and highly skilled migrants where there is a case for it.

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