June 17, 2018

NHS exemption from Tier 2 visa quota confirmed in changes to Immigration Rules

Finally, good news form the Home office secretary!

The Home Secretary has today laid a Statement of Changes to the Immigration Rules to exempt doctors and nurses from the limit on visas for skilled non-EU workers.
Sajid Javid and Jeremy Hunt, the Health Secretary, announced in a press release that “there will be no restriction on the numbers of doctors and nurses who can be employed through the Tier 2 visa route”.

The Tier 2 quota — more formally, a cap on restricted certificates of sponsorship, as Nichola Carter explains elsewhere on this blog — has been oversubscribed in each of the last six months. With more applicants than places each month, the lowest-scoring applications lose out. That leaves some employers unable to secure a visa for the overseas workers they have recruited.

PhD-level jobs and roles on the shortage occupation list get higher priority, but otherwise the system is largely blind to what the worker actually does. Junior doctors, outside specialisms on the shortage list, have had no general special treatment up to now. Those not earning salaries high enough to push them up the ranking have, along with other skilled professionals such as engineers and teachers, been turned away — much to the dismay of NHS managers trying to fill vacancies.

The NHS accounts for around 40% of all Tier 2 places, according to the Home Office. The department says that removing medics from the quota will have the knock-on effect of freeing up places for other skilled non-EU workers, although it remains to be seen whether removing this source of demand will be enough to relieve the pressure on the system.

On a technical level, the changes are to be achieved by adding the following to paragraph 77D of Appendix A of the Rules:

77D. No points will be awarded for a Certificate of Sponsorship unless:

(b) in the case of a Certificate of Sponsorship which was not allocated to the Sponsor under the Tier 2 (General) limit:

(iv) the number supplied links to a Certificate of Sponsorship Checking Service entry which shows that the applicant is being sponsored to work in the occupation code “2211 Medical Practitioners” or “2231 Nurses”.

The exemption takes effect on 6 July. It may not be permanent: the explanatory memo says that “this is in response to the particular shortages and pressures facing the NHS at the current time… the changes will be kept under review”. It also says that the Migration Advisory Committee will be asked to

review the composition of the Shortage Occupation List, following the change to the allocation of places under Tier 2 which exempts all doctors and nurses from the annual Tier 2 (General) limit. This will enable the Migration Advisory Committee to look at which posts are in national shortage and should be given priority within the limit.

Taking doctors and nurses out of the visa cap is only a small part of the 60-page Statement of Changes. It also sets out to:

Make provision for returning residents, including those affected by Windrush.
Create a route for Afghan locally engaged staff to apply for settlement in the UK and to extend the ex-gratia redundancy scheme by six years, to include those made redundant on or after 1 May 2006.
Create a new settlement route for Turkish ECAA business persons, workers and their family members.
Create a new form of leave for people, transferred to the UK under the Dubs amendment, who do not qualify for international protection.
Create new provisions in the Tier 1 (Exceptional Talent) category.

There is a summary of these measures in a written ministerial statement just published. We’ll have more in-depth analysis on the changes in due course.

May 31, 2018

Limits On The Number Of Work Permits Available For Skilled Non-European Workers Continue To Cause Problems

The Home office unreasonable and harsh policy towards foreign workers continues.
Will the point based system survive after new changes?

In April 2018, the UK hit its cap on the number of work permits available for skilled non-European workers for a fourth consecutive month. The May figures are yet to be released, however we are aware that the cap has already been reached for this month.

The cap on skilled worker numbers, introduced by Theresa May as Home Secretary in 2011, is an annual quota of 20,700 with a fixed number of spaces available each month. UK businesses seeking to hire skilled non-EU workers are losing out as a large proportion of applications are being rejected due to the cap on work permits being reached.

Data obtained from a Freedom Of Information request showed that in April 2018, a total of 4,325 requests for UK work permits were made, however there were only 2,200 work permits available. As a result, over 2,000 applications were unsuccessful.

Of the requests made in April, it appears that around 750 were for shortage occupation roles – specialist roles that the Home Office accepts cannot be filled by the resident workforce.

The level of shortage occupation roles has been steady for the past 6 months, with an average of 708 requests each month since December 2017. While the Immigration Rules recognise that these shortage occupation roles cannot be filled by the resident labour market, employers must still go through the UK work permit sponsorship process in order to fill these roles. This was seen as problematic in November 2011 when the cap of 20,700 work permits was introduced, but little was done to solve the problem as the cap had only been hit once before.

In addition to problems caused by these limits, the Home Office continues to inform thousands of employers across the UK that they cannot hire necessary non-EU highly skilled workers because applicants have not met the ‘minimum points score’ set for the month.

The points-based immigration system prioritises applications according to the advertised salary. The minimum annual salary required for an individual to qualify for a work permit changes according to the number of excess applications. This hits thousands of employers and is already having a hugely detrimental impact on UK businesses as they find themselves unable to secure the skills and expertise that these highly skilled migrants have to offer.

The Home Office confirmed that the minimum salary required for a non-EU skilled worker permit was normally £30,000, however in December 2017, it was set at £55,000. In January 2018, applications for work permits for jobs paying less than £46,000 per annum were refused unless they were PhD-level roles or jobs on the official shortage occupations list.

While there is no right of appeal following a refusal, applicants are allowed to reapply the next month provided the job advertisement is still valid.

The practical approach would be to simply remove shortage occupations from the quota and introduce a higher limit. At present, the UK looks set to reach its cap on work permits for skilled non-European workers for an unprecedented sixth month in a row.

April 26, 2018

Court of Appeal says to Home Office: Go away!!!

When feeding my son, I sometimes have to heap the spoon up with something he likes to eat, to disguise something he does not.

This is what the Home Office did when applying for permission to appeal in Secretary of State for the Home Department v Barry [2018] EWCA Civ 790.

The resulting judgment of the Court of Appeal is the legal equivalent of his usual reaction: that is, to grab the spoon and attempt to redecorate the nearby furniture.

Aside from the spectacle of the Secretary of State getting a kicking in the higher courts, the judgment is noteworthy for what it says about the Home Office approach to litigation, and for demonstrating how hard it is to win a deportation appeal.
The “systemic failure”

The Home Office made a deportation order against Thierno Barry, who had committed a serious crime and was imprisoned for three years.

Mr Barry appealed against the deportation order to the First-tier Tribunal. He was married to a British woman, and had two young British children. If he were deported, it would mean the end of his relationship with them. The tribunal found in his favour:

the FTT concluded that there were exceptional circumstances in this case which outweighed the public interest in deportation (para. 165). It also emphasised that this was a “very strong” Article 8 claim and that it was a “rare case”.

The Secretary of State’s appeal to the Upper Tribunal was dismissed. Undeterred, a further application was made to the Court of Appeal for permission to appeal on the grounds that

that there may be a “systemic failure” by the UT when applying paras. 398 and 399 of the Immigration Rules

Applying the “second appeals test” derived from section 13(6) of the Tribunals, Courts and Enforcement Act 2007 — where permission is only granted where the appeal would raise some important point of principle or practice, or where there is some other compelling reason to hear the case — permission was granted.
Punitive costs order

At some stage, the Secretary of State decided that the sole ground upon which permission to appeal was granted was no longer arguable. This was not made clear to the court until the day of the hearing.

Like an audience member on BBC Question Time, straining with hands up to ask a really important question, the Secretary of State was called upon only to belch loudly down the microphone.

The Court of Appeal reacted much like one imagines David Dimbleby would in that situation: with a kind of bemused contempt, and an order to pay costs on the indemnity basis.

There was no issue of general importance other than the suggestion that there was a “systemic” problem in the UT. That was an unusual allegation and a serious one… Having obtained permission on that basis, the Appellant failed either to make the submission good with evidence or to pursue the argument. She abandoned it without even explaining why. In my view, in all the circumstances of this case, the Appellant’s conduct was indeed unreasonable to a high degree.

This means that the legal team for Mr Barry can charge their full commercial rates for his representation, and the bill will be picked up by the taxpayer.
The house that Hugo built

This judgment shows that, in the current climate, it is not enough to simply win a deportation appeal at the First-tier Tribunal.

You need a judge who can write, knows this corner of the law inside and out, and properly records the proceedings and any concessions made by the Secretary of State on the day of the hearing.

To paraphrase the title of the excellent 2010 report by the immense Bail for Immigration Detainees, you need a good judge, on a good day.

The determination of the First-tier Tribunal needs to be so perfect, so utterly watertight, that it can survive the scrutiny (in this case) of

An Upper Tribunal judge at permission
Two Upper Tribunal judges at an error of law hearing
A Court of Appeal judge at permission
Two Court of Appeal judges at full hearing

Fortunately for Mr Barry, he got Judge Norton-Taylor, who appears to have constructed a tribunal determination of such unspeakable fairness that not even the grounds-smuggling Home Office senior appeals team could touch it.
The “hostile environment” in the courts and tribunals

It is ironic that the Secretary of State complained of a “systemic” issue with the Upper Tribunal’s treatment of deportation cases.

It has long been the Secretary of State’s approach to challenge every allowed deportation appeal, notwithstanding the merits of the case, arguing at almost every turn that determinations of the immigration tribunals refuse to exhibit sufficient cap-doffing to the “public interest” in booting out foreign criminals.

As ever in this area, decisions are driven as much by politics as they are the law, with no apparent concern for the consequences. The Court of Appeal’s punitive costs order is the least it could have done.