On the 12th May , the government published its strategy for economic migration. Its leitmotif is a desire to reduce the number of overseas nationals coming to stay in the United Kingdom. At present this strategy is not the law, but is an intimation of future policy.

Skilled Workers 

Any sponsored post must meet the skills threshold set out in the Immigration Rules. The threshold has varied over the years and is now to be returned to being available to graduate level posts only.

There may be exceptions as follows: -

Where there are sustained staff shortages in occupations whose qualification is below degree level, the Migration Advisory Committee may place such jobs in a new Temporary Workers list. These visas would not lead to settlement.

Adult Social Care.

The government also has an intention to end visas for new applicants seeking to work in the UK as carers from 2028. Those already in the United Kingdom with permission to stay as Care Workers will be able to apply to extend their permission.

Graduates

The duration that overseas graduates from UK universities will be permitted to remain is reduced from two years to eighteen months. Thereafter they would need to apply to vary their Leave to Remain.

Supplementary Changes envisaged.

English language.

Skilled Workers will need to demonstrate an English language requirement to the level of B2 of the Common European Framework, whilst adult dependent family members would need to demonstrate a proficiency to the level of A1 of the Common European Framework. The language tests for dependents are new.

All future applications for settlement will require English at the B2 level of the Common European Framework.

Ten Year route to settlement.

The Government appears to propose extending the qualifying period to settlement for those in employment / self employment categories from five to ten years.

Shifting goal posts and the jurisprudence.

We do not know if the proposed Rules will apply to those already here in existing categories or to new applicants. Neither do we know when these Rules will come into existence.

Generally speaking, Immigration Rules may preserve existing rights, by including them in what are termed " transitional provisions." Essentially , it is a phrase in the Rule which says some thing along the lines of " All applicants who had been given permission to stay as a ( insert category of visa ) before ( insert date ) may apply for Settlement after five years continuous residence provided etc. etc."

However, if existing rights are not preserved by such a clause then the general principle is that the new Rules apply , irrespective of when the individual was first granted permission to stay. -Odelola (FC) (Appellant) v Secretary of State for the Home Department (Respondent) [2009] UKHL 25

This does not automatically mean that any extension of the required qualifying period for settlement from five to ten years will be lawful. The Home Office have extended the qualifying periods for settlement before, and have been challenged .

When the qualifying period for settlement by Work Permit holders was extended from four to five years, the Courts had found this policy to be lawful and proportionate as per Ooi & Ors, R (on the application of) v Secretary of State for the Home Department [2007] EWHC 3221 (Admin) at paragraph 51

51. There was no explicit or unequivocal statement to the claimants. Each was told, by condition 11 endorsed on the work permit, that they could apply for indefinite leave to remain after four years' residence, but no statement was made that their application would be granted or that no change might be made to the Immigration Rules before that four years was up.

In other circumstances a clear undertaking given to those on the Highly Skilled Migrant Worker’s Programme that they could anticipate the rewards of settlement within four years, entailed that they could not then be expected to wait for five. ( Paragraphs 78 and 79 )

HSMP Forum (UK) Ltd., R (on the application of) v Secretary of State for the Home Department [2009] EWHC 711 (Admin)

78. I share his concerns too, as to what now seems to be a developing pattern of refusal to acknowledge the clear evidence of hardship and disadvantage of the kind disclosed in the witness statements. Mr Short's statement, for example, in response to those statements that, in relation to employment opportunities, "migrants should have made themselves aware of the job requirements that prevailed within specific fields of employment in the UK prior to making a decision to enter into the HSMP" shows a disturbing degree of insensitivity to the plight of those who were encouraged to uproot themselves and join a programme designed to benefit the United Kingdom, as well as themselves, and who were being told that, if they met the criteria, they would be entitled to settle here permanently after 4 years.

79. I conclude, therefore, that it would be unlawful for the Secretary of State to withhold indefinite leave to remain from all those members of the HSMP who were already on the scheme before the 3 April 2006, by reference to a qualifying period of 5 years continuous residence. In the circumstances, since the policy of 9 July 2008 does not so provide, it is unlawful and the Court should intervene.

The proposed extension of the qualifying period for settlement is to apply across all economic visa categories and so without transitional provisions, there may be inconsistent findings on the legality of this extension depending on the person’s category of permission to stay.

We may find ourselves enjoying familiar conversations.

About

Dominic Magne read law at St John's College Cambridge.

He has worked continuously in the field of Immigration, Nationality and Asylum law since 1992.

He was called to the Bar in 1997 and qualified as a Solicitor in 2001. He established MAGNE & CO Solicitors the same year.

He has represented clients in the field of Immigration and Asylum law in both the United Kingdom and on the European main land .

To arrange a consultation, call +44(0)20 8399 3939 or email post@magne.co.uk