Degrees of skill



On 7 November 2006, new criteria for the highly skilled migrant programme (HSMP) were unexpectedly announced, effective from 8 November 2006. The programme instantly fell under the close scrutiny of stakeholders/immigration practitioners, as it clearly signals the arrival of the first tier of the points-based system, which was proposed in February 2005 as part of the government's five-year strategy for asylum and immigration (see [2006] Gazette, 6 April, 25). Although caseworkers at the Immigration and Nationality Directorate quickly rejected such suggestions, there can be no doubt that the changes mirror the potential criteria for tier-one applications suggested in the government's White Paper, A Points Based System: Making Migration Work for Britain, in March 2006.



The main changes to the HSMP encompass a higher, but not necessarily more stringent, points threshold of 75. Crucially, points will no longer be awarded for work experience, for achievement in a chosen field, for a partner's achievements, or for GPs. Applicants may now only gain points for qualifications, previous earnings, work or study in the UK, age, and for having a Masters in Business Administration (MBA) from the list of eligible MBA programmes.



The mandatory criteria under the old scheme have been altered and an English language requirement has been introduced. Furthermore, only evidence specified in the HSMP guidance notes may be accepted, raising concerns that caseworkers will be driven to consider form over substance, causing meritorious applications to be refused.



There is a clear shift from gaining points for work experience towards gaining points for salary earned in the last 12 months. Individuals without a degree now cannot qualify as highly skilled, no matter what path their career has taken, implying that the skills of an individual can be determined from a combination of the fact that they have an academic qualification and have earned an average amount of money, with no consideration for how they have applied their degree or how they have earned their income, so long as they have paid taxes. Neither Bill Gates nor Nicole Kidman would qualify. Whereas an English-speaking 22-year-old with a Bachelor's degree and earnings in the last 12 months of just £23,000 in a first graduate level role would qualify as 'highly skilled'. And while that may be music to the ears of many bright young graduates lacking in commercial experience, it detracts from the spirit of the scheme, which, when it was established in 2002, was designed to attract highly skilled migrants not just in the finance sector but also those recognised for their artistic and literary talent.



The White Paper stated that consultation responses from employers revealed that the most important elements for them when assessing a candidate's suitability were work experience and skills. The least important elements were salary and age of the individuals.



The Home Office has provided no evidence to suggest the possession of 'skills' equates to possession of a degree. Clearly, the Home Office has ignored feedback on key issues raised by its stakeholders, despite its statement that it was introducing the points-based system to allow employers and educational institutions to take ownership of migration to this country, and has implemented changes regardless of the information it had from the very bodies it sought to empower.



The Home Office is evidently backing its pledge to provide a more efficient, transparent, and objective application process. The system will be simpler and more consistent. Perhaps it is hoping that the applications themselves will be simpler and more consistent. But on the flip side, will the calibre of applicant also be simpler and more consistent? The fear is that in changing to a form-over-substance approach, the applicant who is able to provide the required documentation will meet the criteria over an applicant who would have been able to meet the criteria if he could provide the requisite documentation. While the prescriptive list of documentation published on 7 November may provide the average caseworker at the Home Office with little room for error and the ability to process applications more efficiently, it may find us turning away the very calibre of individual we want to attract to the UK.



The changes were introduced with no forewarning, leaving only a couple of hours for applications to be submitted under the old rules. The Home Office has justified its actions by stating they were purely operational and it wished to avoid a rush of 'speculative' applications. This lack of notice marks the manner in which recent changes to the immigration rules have been made by the government, frustrating immigration law practitioners by effectively curtailing their ability to oppose or challenge the changes, let alone forewarn and advise their clients.



The absence of a realistic notice period for the changes fails to make any provision whatsoever for those individuals preparing to submit their applications under the old rules. The main concerns are the time and money spent and the life-changing plans that individuals could have undertaken to satisfy the old criteria.



Furthermore, those seeking to apply for a HSMP extension under the old extension criteria for an additional three years' leave to remain in the UK as highly skilled migrants, were previously required to demonstrate that they had taken reasonable steps to become lawfully economically active in the UK. They are now being required to meet the points criteria with only limited transitional arrangements. Many individuals who have conducted their affairs in the UK fully in accordance with the old rules by undertaking every effort to be economically active in the UK - and who intended to make the UK their main home - may not meet the new requirements.



It seems disproportionate for the Home Office to expect individuals who are currently in the UK under the HSMP scheme, who met the extension criteria under the old scheme, to be required to meet the requirements under the new rules. Even more surprising is the requirement that under the new criteria, individuals seeking to extend their status as highly skilled migrants will be examined on the basis of their activities during the last 12 months, which cannot now be altered or changed.



The scheme was suspended between 8 November and 4 December in a bid to allow applicants to prepare and ensure an effective operational transition. This has highlighted the possibility that the government might not understand the nature of the average highly skilled migrant and his business travel commitments. Those unfortunate individuals who were in the UK under the programme and whose leave expired during the suspension period, were required to submit their extension applications (including their passports) before their leave expired, but their applications were not considered until after 5 December. In addition, there will almost certainly be a backlog of applications that could potentially delay the current processing time of nine weeks, meaning that an individual will have to be without a passport for much longer than two months. Not to mention the fact that the announcement was made shortly before the holiday period, preventing those applicants from returning to their country of origin to be with families.



The government appears to be operating a back-door policy by implementing such immigration changes through statutory instruments rather than through primary legislation, and thereby keeping these changes away from parliamentary scrutiny and making it difficult for Parliament to obstruct them.



The government also made formal and informal statements (both in its White Paper and in recent meetings with stakeholders) that it would provide them with the opportunity to respond to changes and pilot schemes and encourage participation. Immigration law practitioners are extremely concerned that this opportunity was not afforded them.



Additional research from trainee solicitor Anushka Sinha



By Laura Devine, Laura Devine Solicitors, London