Highly skilled migrant programme (HSMP) Forum Judicial Review – Judgement of 6 April 2009

Prior to 3 April 2006 the continuous leave requirement for indefinite leave to remain (ILR) under the highly skilled migrant programme (HSMP) was that migrants should show that they had spent four years’ continuous residence in the United Kingdom. The four year qualifying period was increased to five years’ qualifying residence on 3 April 2006.

The HSMP Forum Ltd brought a Judicial Review against the Home Secretary on the basis that those who entered onto the HSMP before the qualifying period for ILR was increased from four to five years, should be eligible for ILR after four years on the scheme. The judge found in favour of the HSMP Forum on this point.

The UK Border Agency is currently looking into implementing the court’s decision. Remedies will be published as soon as they are finalised.

Link to the Judgement

New Immigration Fees

The UK Border Agency has published it’s revised Immigration fees.

New Fees

Suspension the fee for Certificate of Approval

With effect from 9 April 2009 the UK Border Agency is suspending the fee for Certificate of Approval applications. This means that individuals making an application for a Certificate of Approval on or after this date will not be required to pay the fee.

The fee has been suspended in order to comply with the House of Lords judgment in the case of Baiai v the Secretary of State for the Home Department.The UK Border Agency is now carefully considering the implications for those who have already paid a fee and will shortly announce its policy in this respect.

We will keep you informed as soon as the UK Border Agency makes any further announcements.

Migrant workers face tougher test to work in the United Kingdom

Measures to raise the bar for foreign workers wishing to enter the United Kingdom, and to give domestic workers a greater chance of applying first for United Kingdom jobs, were unveiled by Home Secretary Jacqui Smith today.

Jacqui Smith pledged to use the flexibility built into the points-based system (PBS) to respond to changing economic circumstances – helping British workers through the hard times of the recession.

The Government has already suspended tier 3 of the PBS to ensure no foreign national from outside the European Economic Area (EEA) can come to the United Kingdom and work in a low-skilled job.

Jacqui Smith announced three significant changes to support British workers and to be more selective about the migrants coming to the United Kingdom from outside the EEA. From 1 April the Government will:

* strengthen the resident labour market test for tier 2 skilled jobs so that employers must advertise jobs to resident workers through JobCentre Plus before they can bring in a worker from outside Europe;
* use each shortage occupation list to trigger skills reviews that focus on up-skilling resident workers for these occupations, which will make the United Kingdom less dependent on migration for the future; and
* tighten new criteria against which highly skilled migrants seeking entry to the United Kingdom are judged, by raising the qualifications and salary required for tier 1 of the PBS to a Master’s degree and a minimum salary of £20,000.

The Home Secretary has also asked the independent Migration Advisory Committee (MAC), chaired by Professor David Metcalf, to report on:

* whether there is an economic case for restricting tier 2 (skilled workers) to shortage occupations only;
* his assessment of the economic contribution made by the dependants of PBS migrants and their role in the labour market; and
* what further changes there should be to the criteria for tier 1 in 2010/11, given the changing economic circumstances.

Jacqui Smith said:

“All workers now coming to the UK from outside Europe have to meet the requirements of the Australian-style points system, which allows us to raise or lower the bar on who can come here.

“We have always said it is important to be selective about who comes here to work, and we have already put a stop to low-skilled labour entering the UK from outside Europe.

“Just as in a growth period we needed migrants to support growth, it is right in a downturn to be more selective about the skill levels of those migrants, and to do more to put British workers first.

“These measures are not about narrow protectionism – a flexible immigration system, rather than an arbitrary cap, is better for British business and the British economy. We recognise that migration continues to play an important role in the UK, at the same time as we are giving greater support to domestic workers so that we can all come through the recession stronger.

“Given the economic circumstances and the action we are taking to be more selective, I expect the number of migrants coming to the UK from outside the EEA to fall during the next financial year. Today I am also asking the independent Migration Advisory Committee, led by David Metcalf, to consider further changes to the way in which foreign workers are currently able to enter the UK to work.

“By being more selective, as well as through tough enforcement measures to tackle illegal immigration, I have tasked the UK Border Agency with delivering this reduction. I have also set out 10 further immigration milestones for the UK Border Agency to meet this year.”

The 10 milestones in the UK Border Agency delivery plan are:

* March – open a new immigration removal centre to help remove immigration offenders;
* April – use our points system to ensure migration matches the country’s needs in hard times;
* April – start charging migrants to create a multimillion pound fund to reduce the impacts of migration on local services;
* April – introduce new technology to help detect drugs and other illegal goods;
* May – be tougher on European criminals, removing European nationals who cause harm to our communities;
* July – start tough new visa controls, which will cover five countries;
* August – have completed delivery of new facial recognition technology in 10 terminals, giving British passengers a faster, secure route through the border;
* November – issue 75,000 compulsory identity cards to foreign nationals;
* December – hit target to screen 120 million passengers entering and leaving the UK against security watch-lists, and introduce a new high-tech security centre; and
* December – deport a record number of foreign prisoners.

These 10 pledges will build on the work already undertaken by the UK Border Agency to strengthen the country’s immigration controls.

These measures build on existing actions to deliver border security that protects Britain, including:

* fingerprint visas that lock people to one identity – with 3.5 million sets of fingerprints taken since their rollout, identifying 5,200 case of identity swaps;
* a high-tech electronic borders system which checks people against watch-lists and will cover even more passenger journeys by the end of this year;
* customs checks which, since April 2008, saw technology at ports contribute to the seizure of over £260 million worth of illegal drugs; and
* ID cards for foreign nationals. By November this year 75,000 ID cards will have been issued to foreign nationals, locking them to one identity.

For passengers legitimately travelling through United Kingdom ports, new facial recognition technology is being introduced which balances high security with quicker times at immigration control.

For illegal immigrants not playing by the rules, the UK Border Agency will open, in just a few weeks’ time, a new immigration removal centre with capacity to hold more than 420 people near Gatwick in south-east England, helping deliver the Government’s pledge to remove even more foreign national prisoners this year than ever before. In 2008 more than 5,000 foreign national prisoners were removed from the United Kingdom.

The Government also pledged to come down harder on criminals from Europe by reducing the threshold for consideration of their cases for deportation from 24 months in jail to just 12 when they have committed drugs, violent or sexual offences, putting them in line with non-EEA nationals.

Plans will also be introduced to target and deport low-level persistent foreign offenders who cause harm in the communities but who have not been given a prison sentence – for example, those on community service but who over a period have continued to re-offend.

NOTES

1. In March 2006 the Government published a Command Paper setting out the new PBS, ‘A points-based system: Making Migration work for Britain’. The new system consolidates the many complex routes into just five tiers.

2. Tier 1, for highly skilled migrants, was introduced in February last year, and tier 2 (for skilled migrants) and tier 5 (for temporary workers and youth mobility) in November 2008. The student tier of the system – Tier 4 – will be launched at the end of March.

3. Tier 3, which covers low-skilled routes, is suspended and will only be used if specific shortages are identified that cannot be filled from the UK’s domestic or European labour force.

4. The Government announced current plans for its immigration removal estate on 19 May 2008.

5. The Migration Impact Fund was first announced as part of the publication of the Government’s Green Paper A path to citizenship in February 2008. It said that migrants should contribute “to a new fund for managing the transitional impacts of migration, providing extra financial help to communities experiencing change from migration”.

6. In February 2009 the Government announced it would be introducing new visa requirements on visiting nationals from five new countries travelling to the UK. These new visa checks will all be introduced by mid 2009.

7. The first facial recognition gates were introduced at a British airport in August 2008 in Manchester.

8. The statistics on removal/deportation of foreign national prisoners are based on provisional management information collected by the UK Border Agency. They may be subject to revision and are not part of National Statistics. National Statistics on total removals and voluntary departures in 2008 will be released on 24 February 2009.

9. A year since the UK Border Agency began issuing fines to employers for hiring illegal workers, it is launching a second advertising campaign to promote the tough message that employers face a fine of up to £10,000 per illegal worker they employ. The campaign adverts will run in the national press from 27 February and on radio and are available to press on request. Since the Civil Penalty regime was introduced on 29 February 2008, the UK Border Agency has issued over 1,000 fines to employers who hire illegal workers, worth over £10 million.

New countries face tough visa rules

Visa checks are to be introduced for five countries after they failed to pass the United Kingdom’s strict new Visa Waiver Test.

Following the Government’s first global review of who needs a visa to come to the United Kingdom, visas will now be required for visitors from Bolivia, Lesotho, South Africa, Swaziland and Venezuela.

Already, three-quarters of the world’s population need to apply for a visa if they want to visit the United Kingdom.

Nationals of Bolivia, Lesotho, South Africa, Swaziland and Venezuela already need a visa to work or settle in the UK, as do all nationals of countries outside the European Economic Area. Now they will need to apply for a visa even if they are visiting the UK for less than six months. In the case of Venezuela, visitors who have new secure fingerprint passports issued since 2007 will be allowed to enter the UK without applying for a visa.
Border and Immigration Minister Phil Woolas said:

“The Government said it would get tough and we meant it. Already our shake-up of border security is delivering results, with three million fingerprints taken from visa applicants and 3,000 people caught trying to hide their identity.

“Today’s announcement sees these tough checks extended to a further five countries.

“The message is clear – we will not shy away from widening the visa net further wherever we think there’s a risk to the UK.”

Additionally, anyone wishing to travel from Bolivia, Lesotho, South Africa, Swaziland or Venezuela to another country via the United Kingdom will now need a transit visa. The same transit visa requirements have been extended to Jamaican nationals wanting to pass through the United Kingdom.

Everyone applying for a visa to enter the United Kingdom is now fingerprinted, locking them to one identity, and checked against Government watchlists. They are then screened and counted in and out of the UK using the UK Border Agency’s e-Borders system.

First-time visitors to the United Kingdom from South Africa will need to apply for visas from 3 March 2009, with the full visa regime there and in the other countries coming into effect by mid-2009.

The visa regime for Taiwanese passport holders wil be lifted as a result of the Visa Waiver Test. This will take effect from 3 March 2009.

Marriage visa age increase from 18 to 21

The age at which someone can apply for a marriage visa will increase from 18 to 21 from the end of this month, the Government announced today.

From 27 November both parties in a marriage will have to be 21 before a marriage visa can be issued.

Muslim mother wins right to stay in the UK after asylum victory at Lords

A Muslim mother who fears having her child taken from her under Sharia if sent back to her homeland won the right to stay in the UK from the House of Lords yesterday.

Five law lords ruled that the human rights of the Lebanese woman, EM, and her 12-year-old son, AF, who cannot be named for legal reasons, would be “flagrantly violated” and “nullified” if forced to return to Lebanon.

The 36-year-old Muslim claimed asylum in the UK in December 2004, saying that she had divorced her husband because of his violence and fled from Lebanon in order to keep her child.

Under Sharia, the woman’s “violent” ex-husband would automatically be granted full custody rights.

But yesterday her challenge to a Court of Appeal ruling that upheld the Home Secretary’s decision refusing asylum was upheld.

And in critical observations on Sharia as applied in Lebanon, one of the law lords, Lord Hope of Craighead, said that it was “created by and for men in a male-dominated society”.

He added: “There is no place in it for equal rights between men and women” and was by our standards “arbitrary” because it did not allow for exceptions; and was “discriminatory” because it denied women custody of their children after a certain age, simply because they were women.”

The case for allowing mother and child to remain in the UK were “compelling,” he said.

The ruling in the case, which was backed by campaign groups Justice and Liberty, overturns earlier rulings by the Court of Appeal, by the Asylum and Immigration Tribunal and the Home Secretary, that returning the woman to Lebanon would flagrantly violate their rights to family life.

After the ruling, James Welch, Liberty’s legal director, said: “How can the Government speak of equal treatment in one breath and seek to deport mother and child to face separation under Sharia law in another?

“The law lords have rightly upheld basic protections which must be available to us all.”

Quashing the Home Secretary’s decision, Lord Bingham of Cornhill, said of EM: “Her evidence, accepted as true in these proceedings, is that during her marriage her husband subjected her to violence, beating her, trying to throw her off a balcony and trying, on one occasion at least, to strangle her.

“She had a mental breakdown. Her husband was imprisoned for theft from her father’s shop and, later, for failing to support AF.

“He ended her first pregnancy by hitting her on the stomach with a heavy vase, saying he did not want children.

“On the day AF was born he came to the hospital with his family to take the child away to Saudi Arabia, but was prevented from doing so. He has not seen AF since.”

The father retained legal custody of AF, but the divorce court ruled that the child should remain in the mother’s care until he reached the age of seven.

“Thereafter, Islamic law as applied in Lebanon entitled the father to require that physical custody should be transferred to himself or to a male member of his family.”

After the divorce, EM supported herself and AF by running a hairdressing salon. After AF’s seventh birthday, she moved out of her parents’ house and lived in hiding before fleeing the country.

Lord Bingham said: “It appears that, if she returned to Lebanon, she would be at risk of imprisonment on a charge of kidnapping.”

There was unchallenged evidence that Islamic law, as applied in Lebanon, meant that the father retained legal custody of children and the courts had no discretion in the matter.

“As a result, women are often constrained to remain in abusive marriages for fear of losing their children.”

If the father were found to be unfit as a parent, the child would be passed to the paternal grandfather or some other member of the father’s extended family, not to the mother.

In this situation the mother might, or might not, have contact with the child.

Lord Bingham said that in his opinion it was clear that on return to Lebanon “both the appellant’s and AF’s right to respect for their family life would not only be flagrantly violated but would also be completely denied and nullified”.

This would be in breach of their right to a private and family life under Article 8 of the European Convention on Human Rights.

He said: “The evidence makes plain that the bond between the two is one of deep love and mutual dependence.

“It cannot be replaced by a new relationship between AF and a father who has inflicted physical violence and psychological injury on the mother, who has been sent to prison for failing to support him, whom he has never consciously seen and towards whom AF understandably feels strongly antagonistic.

“Nor can it be replaced by a new relationship with an unknown member or members of the father’s family.”

Lord Bingham said that Lebanon was not party to the European convention, and the court had no standing to enforce observance of any other international laws to which Lebanon was party.

“Its family law reflects a religious and cultural tradition which, in one form or another, is respected and observed throughout much of the world.

“This country has no general mandate to impose its own values on other countries who do not share them.”

The judge questioned whether EM could have won her case by relying on the “arbitrary and discriminatory” nature of the Lebanese regime dealing with child custody, had she not shown that return would deny and nullify her human rights.

Also allowing the appeal, Lord Hope of Craighead said: “The close relationship that exists between mother and child up to the age of custodial transfer [seven] cannot survive under that system of law where, as in this case, the parents of the child are no longer living together when the child reaches that age.

“There is a real risk in all these cases that the very essence of the family life that mother and child have shared together up to that date will be destroyed or nullified.”

Lord Hope said that Sharia, as it was applied in Lebanon, “was created by and for men in a male-dominated society”.

He added: “There is no place in it for equal rights between men and women. It is, as Lord Bingham points out, the product of a religious and cultural tradition that is respected and observed throughout much of the world.

“But by our standards the system is arbitrary because the law permits of no exceptions to its application, however strong the objections may be on the facts of any given case.

“It is discriminatory too because it denies women custody of their children after they have reached the age of custodial transfer simply because they are women.”

The case for allowing mother and child to remain in the UK were “compelling.”

Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Wood also agreed the appeal should be allowed and the Home Secretary’s decision quashed.

Tiers 2 and 5 transitional arrangements

The following table explains the transitional arrangements for all other categories which will be abolished when Tiers 2 and 5 of the points-based system are introduced:

What is my current category?	Which transitional arrangement should I use?	Which type of sponsor licence will my employer require?	Will I be able to make an application to extend my leave after Tiers 2 and 5 of the Points Based System are introduced?	Which application form do I use?
Work permit holder -business and commercial (except senior care workers)	A	Tier 2	Yes	Tier 2
Representative of an overseas newspaper, news agency or broadcasting organisation	A	Tier 2	Yes	Tier 2
Member of airport-based operational ground staff of an overseas owned airline	A	Tier 2	Yes	Tier 2
Jewish Agency Employee	A	Tier 2	Yes	Tier 2
Minister of Religion	B	Tier 2	Yes	Tier 2
Missionary	B	Tier 2	Yes	Tier 2
Work permit holder – sports and entertainments (sportsperson)	C	Tier 2	Yes	Tier 2
Work permit holder – business and commercial (senior care workers)	D	Tier 2	Yes	Tier 2
Visiting Religious worker	E	None	No	FLR(O)
Religious worker in a non -pastoral role	E	None	No	FLR(O)
International Association for the Exchange of Students of Technical Experience (IAESTE)	E	None	No	FLR(O)
International Fire Fighter Fellowship Programme	E	None	No	FLR(O)
EU Leonardo da Vinci Programme	E	None	No	FLR(O)
China Graduate Work Experience programme	E	None	No	FLR(O)
Voluntary worker	E	None	No	FLR(O)
Exchange teacher or language assistant	E	None	No	FLR(O)
Research assistant to a Member of Parliament	E	None	No	FLR(O)
Au Pair placement	E	None	No	FLR(O)
British Universities North America Club (BUNAC) student	E	None	No	FLR(O)
Member of a religious order	F	None	No	FLR(O)
Rudolf Steiner concession	F	None	No	FLR(O)
Private servant in a diplomatic household	F	None	No	FLR(O)
Overseas Government Employee	F	None	No	FLR(O)
Work permit holder – Medical Training Initiative (MTI)	G	None	No	WP1X (your employer) and FLR(IED) (you)
Work permit holder – Training and Work Experience Scheme (TWES)	G	None	No	WP1X (your employer) and FLR(IED) (you)
Work permit holder – General Agreement in Trade in Services (GATS)	G	None	No	WP1X (your employer) and FLR(IED) (you)
Work permit holder – sports and entertainments (entertainer)	H	Tier 2	Yes	Tier 2

New tougher rules for Business Visitors

Tough new rules to safeguard the visitor route into the United Kingdom from abuse and keep Britain an attractive place to do business were published by the Government today.

Under strict new rules those wishing to come to the United Kingdom on business for up to six months must apply for a dedicated new business visa and prove they will be carrying out the following activities:

• attending meetings or conferences;
• arranging deals, negotiating or signing trade agreement or contracts;
• undertaking fact-finding missions, checking details or goods; and
• conducting site visits and promotional activities.

In June new visa routes for business, tourist and family visitors were announced in a shake-up of Britain’s short-term visa system. The Statement of Intent published today sets out in more detail how the new business visa will work.

Border and Immigration Minister Phil Woolas said:

‘Now we are introducing an Australian-style points system for selective migration, it makes sense to tighten visit visas at the same time.

These changes will help create a fairer Britain with fair treatment for those who play by the rules, but tough action against those who break the law.

We want the United Kingdom to stay open and attractive to both business and visitors. At the same time we are determined to deliver a system of border security which is among the most secure in the world.’

Also today, the Home Office set out further detail on two new visitor routes for sportspeople and entertainers, recognising the important contribution these individuals make to British cultural life. These new routes mean that an historical concession which allowed sportspeople and entertainers to come here for a short time without a work permit to take part in certain events will be retained.

Under these new routes the following people will now be able to enter the United Kingdom using a dedicated new visa:

• sportspeople and support staff coming for specific events, such as Wimbledon;
• amateur sportspeople joining United Kingdom amateur teams for up to six months;
• professional entertainers coming to the United Kingdom to take part in music competitions;
• amateur entertainers travelling to the United Kingdom for a specific engagement;
• professional entertainers coming to take part in a charity show or where they will receive no fee; and
• professional and amateur entertainers taking part in a ‘permit-free festival’ such as the Edinburgh Festival.

All of the changes set out in the document published today will sit alongside the Points Based System, which replaces around eighty different work permit routes with just five tiers.

Those travelling into the United Kingdom are locked into one identity through the introduction of fingerprinting for all visa applicants, a new hi-tech system for counting people in and out of the country and the rollout of ID cards for all foreign nationals.

Foreign worker limits introduced

BBC News

Tuesday 9th September 2008

New measures aimed at cutting the number of foreign workers coming to the UK from outside the EU are due to be announced later.

The types of businesses which can use non-EU workers because of skill or labour shortages will be listed.

It means employers whose jobs are not on the list will find it more difficult to bring in foreign workers in future.

The government says this system is more effective than simply bringing in limits on overall numbers.

The shortage occupation list has been compiled by the Migration Advisory Committee.

Professor David Metcalf, the chairman of the Migration Advisory Committee, said that an employer would have to meet three hurdles to be able to hire somebody from outside Europe.

“Firstly the job has got to be skilled, secondly there has got to be a shortage, and thirdly and perhaps most importantly, it has to be sensible to bring a person in – there we are looking at the tension between the short-run fix of bringing immigrants in and the long-run need to upskill the economy,” he said.

The changes, which involved looking at 12 different indicators, will result in a more skilled labour supply, he added.

According to the list, maths and science teachers are still needed, but teachers with other subjects will face restrictions.

Midwives, social workers and IT technicians from outside the EU are all no longer needed, according to the list.

Only care workers earning at least £8.80 an hour will be allowed to come to Britain from later this year – a salary level most care-home owners will not be able to pay.

“It is so far above what the medium pay levels are within care homes for senior care workers, it is just not going to be achievable,” said Mandy Thorn, a board member of the National Care Association.

She said the sector has tried to recruit from the UK and Europe but had not been able to attract sufficient numbers. More staff are needed to support a growing number of vulnerable people, she added.

Occupations which are allowed to use foreign workers due to shortages include ship and hovercraft officers and racehorse trainers.

There is also a shortage of skilled chefs, civil and chemical engineers and veterinary surgeons, while quantity surveyors and project managers are needed for property development and construction.

In Scotland, the list includes manual filleters of frozen fish, senior nurses in care of elderly units, and speech and language therapists.

Some other occupations in the hospitality and construction industries were considered by the MAC but rejected from the final list.

On Sunday an all-party group of MPs called for “balanced migration” and four-year limits for foreign workers.

The group said Britain will not be able to cope with an estimated seven million additional migrants forecast to arrive by 2031.