The Legal 500

Immigration has always been a controversial and politically sensitive topic in the UK. As we are now approaching another election, immigration is again one of the main political issues for all parties. Managed migration policies seek to address any labour shortages in the UK, but are also inextricably linked with the asylum policy, in particular the reduction of asylum claims. The government is trying on the one hand to limit access to the UK by asylum and illegal immigration, but on the other hand to promote the important contribution made by legal migrants. This term 'managed migration' is based on a concept that has emerged in the UK in the last five years, specifically from the 2002 white paper on immigration and asylum.

The UK has always needed migrant labour and still does. It also has international and European obligations to process asylum seekers and accept refugees. There is now an ever-widening gap between those who are considered 'good migrants' - people who are in the UK to work through authorised channels - and 'bad migrants' - those who are asylum seekers.

History of UK immigration
Immigration legislation has been used in a reactionary way against the settlement of groups of refugees and migrant workers since the early 1900s. The distinction between who is a good migrant and who is a bad migrant has always been blurred, depending on the government and the political circumstances of the time.

The Aliens Act 1905 was the first permanent legislation on immigration in Britain. It was passed to prevent refugees, mainly Jewish and some gypsies, from seeking refuge in Britain. The term 'alien' applied to those people who were not part of the British Empire.

At the start of the First World War, the Aliens Restriction Act 1914 was passed in one day as part of the impending national emergency. Its draconian powers were meant to last only as long as the national emergency lasted. However, the legislation was extended by the Aliens Restriction (Amendment) Act 1919, followed closely by the Aliens Order 1920. It was therefore the First World War that enabled the government to introduce an elaborate system of controls restricting who could come to Britain that were previously considered to be too authoritarian.

At the end of the Second World War, Britain was motivated by the need for labour. Recruitment of 'European Volunteer Workers' from refugee camps in Europe and from demobilised Polish soldiers was undertaken. At this time, both the economic and racial benefits to Britain were involved simultaneously as a justification for migration. This favourable reception of using refugees as migrant workers was in contrast to the reception of the Empire Windrush carrying West Indian workers to Britain in 1948. This arrival sparked debates on the effect of non-white migration to Britain, and the introduction of statutory controls against workers from the West Indies, South Asia and other parts of the Commonwealth and Dominions, even though many were ex-servicemen and women and had worked in Britain during the war. In 1948 Britain introduced the British Nationality Act, which began to separate previous British subjects into categories such as the Citizen of the UK and Colonies. It was a response to the independence of the Commonwealth countries, but it left many without citizenship.

In the 1960s Britain saw the rise of racial tension (the low point of debate about who should come to the UK became fever pitch with Enoch Powell's 'rivers of blood' speech). The racial tension led the Tory government to introduce the Commonwealth Immigrants Act 1962. This was essentially a way to restrict even further those entering Britain and giving immigration officers wide and secretive powers. This was implemented relatively slowly and was opposed by Labour at the time. However, when Labour came into power, it rushed through the Commonwealth Immigrants Act 1968 in a matter of three days and this Act was even harsher than the 1962 Act and had a deliberate racial element to it. The underlying policy was to exclude hundreds of thousands of East African Asians settled in Kenya and Uganda who were UK passport holders. It was a calculated move to stop the perceived 'flood' of particular racial groups coming to the UK, even though they had previously been British citizens. These Acts were followed by the Immigration Appeals Act 1969, which established an appeal system.

The Immigration Act 1971 was a culmination of the above three Acts. It came into force in January 1973 and is still the basis for the immigration controls we have today, although it has been increasingly amended by subsequent Acts, mostly in the 1990s. Each of the subsequent Acts have introduced harsher controls on asylum seekers and have given more powers to immigration officers.

In the 1990s there was an increase in claims for asylum in Britain, and an increasing public hysteria in relation to asylum seekers. Although Britain is a signatory to the 1951 Refugee Convention, asylum was only mentioned as an afterthought in the Immigration Rules. The Asylum and Immigration Appeals Act 1993 incorporated the 1951 Refugee Convention into the immigration rules and allowed asylum seekers to appeal decisions. This Act was extended in 1996. When elected in 1997, the Labour government wanted a major review of the immigration and asylum policy and their response was yet another change to legislation - the Immigration and Asylum Act 1999. The legislation does not address the issue of the Home Office's internal inefficiency, which has been the major cause of delays in processing asylum claims.

The next major piece of legislation, the Nationality, Immigration and Asylum Act 2002, was based on the white paper on immigration policy entitled 'Secure Border, Safe Haven: Integration with Diversity in Modern Britain'. The white paper contained proposals that encouraged migration 'on a sensible and managed basis'. This meant embracing a new immigration policy, which would simplify the system for those coming to work through authorised channels, but enforcing harsh conditions on asylum seekers and their children. Unfortunately this entrenched the 'good migrant', 'bad migrant' division.

Situation in the UK today
Managed migration in terms of the UK business community normally means employing people under the work permit scheme, or employing people who have come to the UK under the Highly Skilled Migrant Programme. These individuals are normally highly skilled, highly educated and, it is hoped, highly paid - thus, contributing to the wealth of the UK. The UK also wants to attract people, who will not necessarily be high earners, but will fill positions where there is a skills shortage. Many of the skills shortages are in the healthcare and engineering sectors, eg 31% of doctors and 25% of all health workers in the UK were born overseas. The latest figures (published on 22 February) show that in 2004 Work Permits UK issued 160,370 business and commercial work permits, 4,204 training and work experience permits, and 16,858 sector-based permits.

New strategy
On 7 February, the Home Secretary, Charles Clarke, announced details of the government's proposed five-year strategy for asylum and immigration - 'Controlling our borders: Making migration work for Britain'. In the foreword to the strategy, the Prime Minister stated: 'Managed migration is not just good for our country, but essential for our prosperity.' This strategy paper sets out a wide-ranging plan to redefine many of the key aspects of the immigration system, including the work permit scheme and the Highly Skilled Migrant Programme. Key changes outlined in the strategy include:

• A single points-based scheme for people applying to work or study in the UK. The scheme will consist of four tiers: highly skilled, skilled, low skilled and student/specialist. Points will be adjusted to respond to changes in the labour market. An independent labour market advisory group will be set up to advise on market changes and labour shortages. It is not clear what will happen if workers acquire or lose points while in the UK.
• There will be no automatic right to stay in the UK for lower-skilled workers and students. Skilled workers will be able to apply for indefinite leave to remain after five years (an increase on the current four), and they will be required to pass an English language test and show they have knowledge of the UK.
• The government aims to end chain migration by limiting family migration. There will be an end to the practice whereby those who have settled in the UK can bring in dependants, who can then bring in further family members in their own right.
• The length of short-stay visits (eg holiday visitors) will be reduced from six months to three months, with new measures to ensure visitors do not overstay.
• New illegal working provisions will require employers to ensure that migrants comply with the rules of their entry to the UK and return home at the end of their stay. As part of the drive against illegal working, the government will also introduce £2,000 fixed-penalty fines for employers for each illegal worker.
• Current immigration and employer checks will be merged into a single, pre-entry check. This may mean that in future a potential work permit holder will apply for their work permit and prior entry clearance visa at the British consular post in their country of residence.

Employing overseas nationals
The new immigration system will combine all the current work permit schemes, the HSMP programme, and the student rules into a single points-based scheme, so there will no longer be a range of routes with specific criteria for each. The scheme will have four tiers:

Tier 1 (highly skilled)
Overseas nationals will be permitted to come to the UK without a job offer. Their permit will be based on their qualifications, work experience and current salary. People qualifying in the skills shortage categories will receive extra points.

Tier 2 (skilled)
Those with the equivalent of three 'A' levels will be able to come into the UK if they have a job offer in a shortage area and where an employer cannot find the skills they require within the UK or EU/EEA - in other words they have carried a search of the resident workforce by advertising the position. This tier will include nurses, teachers and administrators.

Tier 3 (low skilled)
Where needs are identified in the agricultural, food processing, and hospitality sectors (or other such sectors), low-skilled, short-term work permits will be available. The current quota-based schemes will be phased out as labour from the new EU (Accession) countries is now available to fill the vacancies in these sectors.

Tier 4 (students and specialists)
This tier will bring together students and a range of schemes where there is no significant issue of competition with the domestic labour force and will include visiting workers currently entering the UK under the Training and Work Experience scheme category.

Commonwealth Citizens
Following Mr Clarke's announcement , the Citizenship and Immigration Minister, Des Browne, made a separate ministerial announcement on 7 February in respect of the working holidaymaker scheme. These changes came into effect immediately. Working holidaymakers must now:

(a) intend only to take employment incidental to a holiday, and not engage in business, or provide services as a professional sportsperson, and in any event not to work for more than 12 months during their two-year stay;

(b) be a national, a citizen of a Commonwealth country (except for Lesotho), or a British Overseas Citizen; or a British Overseas Territory Citizen; or a British National (Overseas) Citizen; and

(c) switch into employment only in the following categories: Innovators, Highly Skilled Migrant Programme, or Work Permit employment, if the job on offer is on the list of designated shortage occupations (eg doctors, dentists, nurses, vets, teachers) maintained by Work Permits UK.

The changes affect all applications, including those made before 8 February, which had not been decided by that date. However, those who applied before 8 February and have not received a decision will be allowed to choose to have their application decided under the new requirements, or to withdraw their application and receive a refund of the application fee. People already in the UK as working holidaymakers will not be affected by (a) above.

This means that, with immediate effect, it is not possible for a working holidaymaker to switch into work permit employment while in the UK, unless the employment falls within the shortage occupation list. New working holidaymakers may not take career-enhancing employment.

This announcement marks the return to the 'old style' working holidaymaker scheme that was in force for many years, prior to the changes announced in 2003. It is not entirely clear why the government thought it necessary to reverse the changes, which had been brought in nearly two years ago, with no notice. However, there is speculation that the scheme had become too popular in some of the poorer Commonwealth countries - and there were long queues of people making working holidaymaker applications at various consular posts - had something to do with the decision.

The way forward
Now, only three years after the Nationality, Immigration and Asylum Act 2002 (and some of the provisions of that Act have yet to come into force) we have yet another major overhaul of the immigration system. An indication perhaps that legislation is not working to achieve government goals of managed migration.

If all the changes outlined in the government's five-year strategy plan are made it will radically alter the immigration rules. Indeed, it will be the biggest change to the rules since the Immigration Act 1971, especially in relation to the work-based schemes for people wishing to enter the UK, and may mean the phasing-out of the work permit scheme as immigration practitioners now know it in, say, a couple of years. The Home Office is consulting various key groups about the proposed changes, some of which are expected to come into force within a couple of months. A change to the educational qualifications under the Highly Skilled Migrant Programme is one such example.

However, what many people would like to see is not yet more alterations to the present scheme - which have included four new immigration acts since 1990 - but a better-run system with a consistency of approach. That means recruiting more staff for the Home Office, training them properly and generally enabling them to provide a better service. This would hopefully put an end to the completely unacceptable delays which have been experienced, for example under the Highly Skilled Migrant Programme, where applications submitted at the beginning of last June are only now being processed.

Written by Christine Pepper and Alison Kelso who work in the immigration department at Magrath & Co.

For more information please visit www.magrath.co.uk.