The Immigration Rules meet the Law Commission
Changes announced to Immigration Rules, LNB News 15/06/2018 102
Immigration Rule changes announced by the government include the removal of doctors and nurses from the Tier 2 visa cap. They also include new settlement rules for Turkish workers and business people and an expansion of the list of countries from which students will be able to use a streamlined application process. The changes will come into effect on 6 July 2018.
The restricted CoS quota was introduced in April 2011 and set at 20,700 per year, split into monthly allocations. The overall quota has not increased since its introduction but there has been some restructuring of the monthly allocations so that more are available at the beginning of the financial year, and fewer at the end. The 20,700 quota was previously only a cap in theory, as in the six years before the recent issues began in December 2017, the cap had only been hit once. On the earlier occasion when the monthly cap was hit, requests dropped back to a normal level the following month and fell immediately within the allocation.
Of 16,945 requests for restricted CoS made December 2017 to April 2018, 8,192 were refused as exceeding the monthly allocation, showing a considerable increased demand.
The number of EEA nationals entering the UK dropped sharply in the year ending September 2017. This goes some way to explaining the increase in restricted CoS requests starting at the end of the same year, as employers turn to non-EEA nationals to fill gaps left by EEA nationals no longer interested in coming to or staying in the UK. The NHS relies heavily on overseas trained doctors and nurses and those from continental Europe have been less inclined to come to the UK following the Brexit decision.
After six months of significantly oversubscribed requests—with businesses and the NHS left without key staff—it became clear something had to change. Various suggestions were made:
1. Remove all shortage occupation roles from the restricted CoS cap
Of the 4,000 requests in the month of April 2018 alone (against a limit of 2,200), around 750 were from shortage occupation roles. These include specialist roles that UKVI agrees cannot be filled by the resident workforce, including certain engineers and scientists, as well as nurses and a handful of areas of medicine.
It has always been illogical to include shortage occupation roles within the restricted CoS process. The lack of local talent in these areas is well established and recognised by the immigration rules.
2. Exemptions for NHS staff
Jeremy Hunt supported the proposal of an NHS visa scheme, removing doctors and nurses from the quota. The removal of any requests from the quota of course would assist—not only by providing guarantees to the particular roles removed from the quota, but by freeing up CoS to those remaining within the quota.
However, sector-specific carve-outs risk favouring those sectors with the strongest lobbying powers above other roles that may be just as deserving but with less vocal/organised representation, eg teachers.
3. Increase or remove the cap
Unfortunately, this ideal solution was always unlikely. Removing the cap would not have sat well with continued political ambition to reduce immigration figures. Similarly, increasing the cap would have gone against the Migration Advisory Committee recommendations to maintain the quota as it was.
The statement of changes to the immigration rules published on 15 June 2018 confirms that all CoS for standard occupational classification (SOC) codes 2211 medical practitioners (including doctors, psychiatrists, surgeons etc) and 2231 nurses (including psychiatric nurses, health visitors, district nurses etc) are to be removed from the restricted CoS process and quota as of 6 July 2018. Other requirements will still apply, such as advertising, but an unrestricted CoS can be used. It seems therefore, that the NHS visa scheme has been implemented as Jeremy Hunt desired. It is worth noting, however, that the exemption from the restricted CoS process applies to all roles within these two SOC codes—so doctors and nurses in private practice, care homes and other organisations will also benefit, not solely those employed by the NHS.
Figures released in a freedom of information request show that of the 15,881 restricted CoS requests made in January to April 2018, 3,164 were for medical practitioners. However, only 1,088 of these requests were successful—the rest failing to meet the minimum salary threshold in those months. In effect, the removal of medical practitioners from the quota will allow these CoS to be allocated elsewhere. Removing medical practitioners from the quota should therefore free up around 250 restricted CoS per month.
Other data provided by UKVI shows that in February 2018 501 restricted CoS were allocated to nurses, in March 2018 442 were allocated to nurses and in April 2018 414 were allocated to nurses. As nurses are a recognised shortage occupation, thereby scoring an additional 130 points, valid CoS requests were always successful. For this reason, there’s no difference between the number of valid requests and the number allocated each month. Removing Nurses from the quota should free up around 450 CoS per month.
In total, therefore, the 700 or so CoS previously allocated to medical practitioners and nurses each month will now become available to other professions. The move is good news for the NHS, which will now have certainty that vacancies can be filled, as well as being able to avoid the delays of the monthly restricted CoS request process. There will also be a positive knock-on effect for other professions, who can take advantage of the 700 additional CoS each month.
However, in April 2018 a total of 4,325 restricted CoS requests were made, against a quota of only 2,200. That month, if medical practitioners and nurses had already been removed, the quota would nevertheless have been oversubscribed by around 1,400. Since there is now a sizeable backlog of requests, it may be some time until we see a significant reduction of the necessary salary threshold.
For lower paid sectors, such as teaching, there will likely still be a long wait before a restricted CoS can be obtained.
Marcia Longdon is a partner in the immigration team of Kingsley Napley. She has practised in the area of immigration, nationality and European law since 1998. She has had a long career in the field of immigration and is incredibly passionate about this area of law. She has won a number of challenges against the Home Office regarding complex cases, which have resulted in discretionary leave for her clients.
Marcia has also been recognised in the Citywealth List, Legal 500, Who’s Who, and Chambers as a Leader in her field.
Emma Fowler is the immigration manager at Kingsley Napley. She advises corporate clients on all stages of the immigration process. She guides corporate clients through sponsor licence and Tier 2 applications, and has a detailed knowledge of prevention of illegal working. She also helps employees with permanent residence, indefinite leave to remain and naturalisation applications.
Interviewed by Max Aitchison and published by LexisNexis on 29 June 2018.
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