The Migration Advisory Committee (the MAC) has published its eagerly anticipated Review of Tier 2. The MAC was asked by the Government to address concerns about the rising number of migrants using the route, a somewhat unenviable task given that businesses and education providers rely on Tier 2 to recruit essential overseas talent and that the numbers using the route are low in the overall context of net migration.
The MAC’s headline recommendation is that the Government uses higher salary thresholds to prioritise higher value, skilled migrants within the Tier 2 route. It has also set out a number of other recommendations and whilst its recommendation that dependents of Tier 2 migrants should not be restricted from working will be welcome news for many, its position in relation to international students is likely to be less well received.
Tier 4 switchers
The MAC has recommended that the Resident Labour Market Test (RLMT) is expanded in relation to in-country switching applications. It confirms that its proposals would bring an end to the current RLMT exemption in relation to international students switching from Tier 4 into Tier 2 (although large graduate schemes would be unaffected).
When publishing its recommendations, the MAC has generally always sought to explain in some detail the evidence it has relied upon, not least in order to protect its independent status. In its report it confirms that it recognises the ‘benefit to the UK of international students’ and refers to BIS’ 2011 estimate that education exports are worth in the region of £17.5bn. It states that, for the year ending August 2015, 23 per cent (almost 5,700) of in-country applicants were those switching into Tier 2 (General) from a Tier 4 (Student) visa. Universities UK, in its response to the MAC’s call for evidence stated that the exception was ‘welcomed and must remain‘.
As such, it would generally be expected that the MAC would carefully scrutinise any evidence presented to it before making recommendations that could potentially damage the UK’s very successful education exports.
However, on this occasion the MAC confirms that its position in relation to ‘Tier 4 switchers’ and the removal of the RLMT exemption is based not on a thorough independent review of evidence, but on statements made to it by the Home Office:
‘The Home Office told us that they had concerns about some vacancies filled through Tier 2 not being genuine and that this was often in relation to vacancies filled by Tier 4 switchers. In order for vacancies to be considered genuine the jobholder must perform the specific responsibilities of the role and not perform dissimilar and/or lower-skilled duties. The Home Office said that there was evidence that a number of vacancies filled by Tier 4 switchers involved this performance of dissimilar and lower-skilled duties. Whilst it was made clear that this form of abuse is not widespread within the route, it does tend to exist at the ‘tail end’. The use of an RLMT would reduce the scope for abuse of this nature.’
The MAC also recommends that:
- the minimum salary threshold for Tier 2 should rise from the current £20,800 to £30,000. The MAC recommends that additional points for salary are allocated to assist new entrants and those entering recognised graduate schemes and that the change should be phased in for certain public sector roles;
- an annual limit should be applied in relation to all in-country switching cases where the migrant is switching in to Tier 2 from another category;
- the RLMT should be applied in relation to all in-country switching cases unless the job is on the shortage occupations list;
- an Immigration Skills Charge (ISC) should be introduced to act as a skills levy on firms using migrant labour. The MAC proposes £1,000 per worker per year of leave granted and estimates that £250m could be channelled back to employers;
- workers transferring to the UK under Tier 2 (ICT) have 24 months, as opposed to the current 12 months, experience within the organisation;
- use of the Tier 2 (Intra-company Transfer) route for third-party contracting is moved into a separate route and a higher minimum salary threshold of £41,500 is applied;
- there should be no automatic sunsetting of jobs on the Shortage Occupation List (SOL);
- Tier 2 (General) is not restricted only to occupations on an expanded shortage occupation list; and
- there are no restrictions on automatic work rights for dependents.
The Institute of Directors reacted quickly to the publication of the review stating that: ‘The MAC’s proposals will hurt thousands of individual firms….This will send a message around the world that the UK is no longer open to international talent.’
The Government is currently considering the MAC’s recommendations and will decide which are to be implemented. There is therefore a short period of opportunity to lobby the Government in relation to these recommendations.
If past conduct is anything to go by, we would expect many of the changes to become law on 6 April 2016.