UK: BUSINESS IMMIGRATION — Some Recent And Forthcoming Changes

Last Updated: 30 April 2012
Article by Jayne Sinclair

Increasingly in the UK employers wish to access the skills of an international labour force. In doing so they must navigate the UK's complex immigration system.

There seems to be an increasing conflict of interest between the intentions of the Government and the requirements of businesses. Minister Damien Green has recently commented that UK companies need to wean themselves off their "addiction" to hiring overseas workers. However, many organisations in the UK claim that skilled overseas workers are absolutely essential to the UK economy.

Over the past year we have seen both changes made and changes proposed to the immigration system, making the immigration laws tighter and limiting the number of overseas workers who can lawfully work in the UK.

Exceptionally Talented Migrant scheme

In August 2011, the immigration scheme of Tier 1: Highly Skilled Migrant (General) was withdrawn to new applicants. This category enabled people with high level qualifications to come to the UK and seek skilled work. They did not need to have a job offer before they came. This scheme has been replaced with a stricter category called Tier 1: Exceptionally Talented Migrants. It is open to those individuals who are recognised, or have the potential to be recognised, as leaders in their respective fields. This scheme is overseen by four competent bodies that advise the UK Border Agency on the applications received, to ensure they are the brightest and best in their field. The four competent bodies are:

  • The Royal Society – the fellowship of the world's most eminent scientists.
  • Arts Council England - the national development agency for the arts.
  • The Royal Academy of Engineers – Britain's national academy for engineering.
  • The British Academy – the national academy for the humanities and social sciences.

Whilst this scheme has been welcomed by many, as it will enable the very best people in their fields to come and work in the UK, the abolition of the Tier 1: Highly Skilled Migrant (General) scheme means that organisations who wish to employ skilled workers who are not necessarily "leaders in their respective fields", will have to find other ways to recruit them lawfully.

The impact this may have on businesses could be far reaching. Employers may now need to sponsor 'highly skilled' individuals under the Tier 2 sponsorship scheme meaning, in most cases, they must first conduct a 'resident labour market test' to see if there is a worker from the UK or EEA who can do the job. This will result in delays in recruitment and an employer not necessarily being able to appoint the best, most skilled and talented person to do the job.

Abolition of the Tier 1: Post Study Work Scheme

At present individuals who hold a degree level qualification or above are allowed to remain in the UK for up to 2 years after achieving their qualification from a UK establishment. This enables them to look for work with a view to switching into a Tier 2 sponsored working visa category at a later date. The idea behind the Tier 1 scheme was to attract the brightest and best minds to work in the UK as well as making it an attractive place to study.

After 5 April 2012 the Tier 1: Post Study Work scheme will close to new applicants. This begs the question as to what, if anything, will replace the Tier 1: Post Study Work route?

A new Tier 1: Graduate Entrepreneur scheme is being introduced on 6 April 2012. This will enable overseas graduates to work in the UK in businesses they have created. It will not allow them to work in existing organisations. Additionally a new post study arrangement is being introduced enabling graduates to switch from the Tier 4: Student scheme into the Tier 2: Sponsored Worker scheme without the need for an employer to carry out a resident labour market test. In order to qualify for this route an individual must have received final results confirming that they have passed and will be (or have been) awarded:

  • a UK recognised bachelor or postgraduate degree; or
  • a UK Postgraduate Certificate in Education; or
  • have completed a minimum of 12 months study in the UK towards a UK PhD.

This means that from 6 April 2012, an overseas graduate, who cannot satisfy the criteria of any other immigration category, must have a job offer to remain and work lawfully in the UK.

New Category of Visitor

At present, many visitors are allowed to come to the UK for short periods of time (often a maximum of 6 months) as holidaymakers or business visitors carrying out specific and unpaid work. From 6 April 2012, a new route is being introduced to allow a small group of professionals, artists, entertainers and sports people who are invited to come to the UK, to undertake short term, fee paid engagements for up to one month. This is a positive change to the rules which will enable individuals to carry out short term contracts in the UK, particularly in the entertainment industry.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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