Search News and Articles
Legal Developments Worldwide
- United Arab Emirates
- Czech Republic
- Hong Kong
- Cayman Islands
- South Africa
- South Korea
- Saudi Arabia
- British Virgin Islands
Articles contributed by Magrath & Co
Immigration has always been a topic that has generated a great deal of interest and debate due to the impact it has on the populace and on the economy as a whole. Recent examples of these have been the French-owned Lindsey Oil Refinery dispute that was settled when Total agreed to hire more local employees, and Ghurkhas who retired before 1997 are now being allowed to settle in the UK.
The Home Secretary, Jacqui Smith, announced measures on 22 February 2009 to raise the bar for foreign workers wishing to enter the UK. She said that the new rules are a reflection of the current economic situation and the Home Office is taking advantage of its new points-based system (PBS) for immigration, which allows greater flexibility to adapt to market conditions, helping British workers through the hard times of the recession.
2008 saw the biggest change to the immigration system in the past 45 years.
THE POLICY GUIDANCE FOR TIER 2 (SKILLED WORKERS) was published on 5 November 2008 by the UK Border Agency (UKBA). This tier of the points-based system covers the following categories:
One of the most pressing political issues for many migrant-receiving countries has often been controlling and managing migration.
IN NOVEMBER 2008 THE RULES COVERING TIER 2 (skilled workers) and Tier 5 (youth mobility and temporary workers) under the points-based system (PBS) are due to begin, with Tier 4 (students) following in Spring 2009. Under these tiers sponsorship is required, and sponsors (employers and educational establishments) will be required to undertake certain duties. This article will review the key elements sponsors should be aware of.
OVER THE PAST FEW MONTHS UK IMMIGRATION laws have been subject to continual change and development. This article will highlight some of the most recent changes and others due to take effect in the near future.
IN 2007 PRESIDENT GEORGE BUSH SIGNED INTO LAW the Implementing Recommendations of the 9/11 Commission Act 2007. Among other things, this Act mandated the establishment of a system for obtaining advance electronic travel authorisations from travellers from visa-waiver countries seeking to enter the US without visas under the Visa Waiver Program (VWP). On 3 June the US Department of Homeland Security (DHS) announced that the new system, known as the Electronic System Travel Authorisation (ESTA), will begin accepting voluntary online applications on 1 August 2008, with registration becoming mandatory on 12 January 2009.
THE HOME OFFICE HAS NOW PUBLISHED ITS statement of intent for Tier 2 of the new points-based system, which deals with skilled workers. It is due to be implemented in autumn 2008. Tier 2 is designed to allow UK employers to recruit individuals from outside the European Economic Area (EEA) where the particular job cannot be filled by a British or EEA worker. The requisite skill level has been set at the equivalent of NVQ3 or above to qualify for the tier.
Employers will be required to apply for and obtain a sponsorship licence before they can use Tier 2. The licence application process allows the UK Border Agency to check that the applicant is a genuine employer. Once licensed, employers will be able to sponsor skilled workers in three categories:
The Home Secretary, Jacqui Smith, published a Green Paper – ‘The path to citizenship: next steps in reforming the immigration system’ – (the Paper) in February 2008, announcing measures that will radically alter the way in which foreign nationals become eligible for British citizenship. Although the Paper is only at the consultation stage, it provides a clear indication of how the government proposes to change the law. There is widespread acceptance among communities that migration is a key factor in the UK’s economic growth but there is also concern about the impact on public services. The clear message in the Paper is that citizenship must be earned and that an individual who wants to stay long-term in the UK must speak English, obey the law and contribute to their community.
A statement of changes to the immigration rules (HC321) was laid before Parliament on 6 February 2008, implementing the first phase of the government’s new points-based system (PBS) for UK immigration. In particular, HC321 amended the immigration rules to launch the new ‘Tier 1 (general)’ category for highly skilled migrants, which was rolled out on 29 February 2008. The route initially only applies to highly skilled workers already in the country who want to extend their stay in the UK as a highly skilled migrant or switch into this category. This briefing explores the new Tier 1 (general) category and also highlights other changes made by HC321, in particular a significant change to the general grounds for refusal of immigration applications for leave to enter or remain in the UK.
The Government has strengthened the law on the prevention of illegal migrant working and introduced a new penalty regime for employers who are found to be in breach. The Immigration, Asylum and Nationality Act 2006 (IANA) was passed on 30 March 2006 as part of the government’s five-year strategy for asylum and immigration. The IANA introduces new measures that employers must take to establish whether a worker has a legal right to work in the UK. It replaces the controls and sanctions previously set out in s8 of the Asylum and Immigration Act 1996. The new penalty regime came in to force on 29 February 2008.
In December 2007 the Home Secretary heralded the start of the biggest change to the UK immigration system since 1971. In a statement of intent also released in December (‘Highly skilled migrants under the points based system’), the Home Office set out how it plans to implement the first phase of a simpler, more transparent immigration system intended to boost the UK’s economy.
Sweeping changes are set to take place within UK immigration. The Home Secretary, Jacqui Smith, has announced that immigration, customs and visa checks will be united and performed by the new UK Border Agency. The new Agency is held out to be ‘tougher, smarter and more flexible’. By merging the work of Customs, the Border and Immigration Agency and UK Visas, the UK Border Agency is hoping to strengthen the UK’s security through tougher border control.
The launch of the International Graduates Scheme (IGS) and recent changes to the Fresh Talent: Working in Scotland (FTWS) scheme are aimed at encouraging graduates to pursue a career in the UK.
Despite strong White House support, what appeared to be equally solid bipartisan support from the Senate leadership, and a general consensus in the nation that the immigration status quo was simply not sustainable, the most serious attempt to reform US immigration law in years collapsed in the Senate earlier this summer. With everyone in agreement that something must be done to re-establish control of US borders and rationalise current immigration policy, it is hard to find a compelling explanation for the legislative debacle.
UK Immigration is subject to continuous change and development. This article is a review of the developments of some changes already introduced and those to come in the near future.
The struggle to enact the most wide-ranging reform of US immigration law in a generation was dealt a stunning setback on 7 June 2007, when a cloture1 vote to end debate in the Senate on the proposed reform bill failed on a vote of 45 for to 50 against. Senate majority leader Harry Reid had pressed for the vote to force an end to increasingly rancorous debate over amending the complex proposal, and to bring it to an ‘up or down vote'2 by the end of that week. When the necessary 60 votes to impose cloture failed to materialise, Reid announced that he would pull the reform package from the Senate's agenda and move on to other legislative agenda items.
Education has traditionally been an important element in the wider cultural, political, trade and economic relationships between countries. By taking all or part of their degree abroad, students can help to break down barriers, build friendships between nations and create a close global community. In recent years, education has come to be seen as a highly marketable export commodity.
The right of freedom of movement for persons is fundamental to European integration, which is itself the underpinning of the success of the EU. The right is cemented by Articles 2 and 3(1)(c) of the EC Treaty which provide that for the purpose of establishing a common market and the promotion of harmonious development of economic activities between member states, obstacles to the free movement of persons between member states shall be abolished.
In December 2006 the Home Office published its Borders, Immigration and Identity Action Plan. The Plan forms part of the government's programme of 'radical change' to the immigration system, which has the stated aims of:
On 7 November 2006 Liam Byrne, Minister for Immigration, Nationality and Citizenship, announced changes to the rules for the Highly Skilled Migrant Programme (HSMP). These changes were effective from 8 November 2006. The HSMP was also suspended for 27 days until 5 December 2006, when applications under the new scheme could be made.
On 1 January 2007 Bulgaria and Romania joined the European Union. As EEA nationals, Bulgarians and Romanians will now be able to move and reside freely in any EU member state. They will not require leave to enter or remain to reside legally in the UK.
This summer the Home Office announced a number of measures designed to rebuild confidence in the immigration system. These initiatives followed a period of bad press for the Immigration and Nationality Directorate (IND) that culminated in the foreign prisoner debacle and the appointment of a new Home Secretary, Dr John Reid. Reid has famously questioned whether IND is ‘fit for purpose'.
The Employment Equality (Age) Regulations 2006 came into force on 1 October 2006. The Regulations apply to all businesses, irrespective of size, and protect employees across the age spectrum. The Regulations afford protection from direct discrimination, and also prohibit indirect discrimination, instructing someone to discriminate and aiding unlawful acts. The Regulations also protect those falling with an ‘age group' and prohibit discrimination on the grounds of perceived age.
The law setting out employers' responsibilities for preventing illegal working in the UK has been amended. The Immigration, Asylum and Nationality Act 2006, passed on 30 March 2006, replaces the previous employment provisions in the Asylum and Immigration Act 1996 (s8 and 8A). So far, only certain parts of the new legislation have been made effective (s62 onwards and the administrative provisions). Other provisions will come into force in the future by way of Commencement Orders.
Free movement of persons has existed since the foundation of the European Community in 1957. It was initially linked to a person's status as a salaried worker, but was progressively extended to encompass all categories of citizens except those who would rely on public funds. The Citizens' Directive was implemented through the Immigration (European Economic Area) Regulations 2006 and merges into a single instrument all the legislation on the rights of entry and residence for EU citizens.
The science and engineering sectors contribute significantly to the UK economy. Scientists and engineers also play a valuable role in society by carrying out innovative research, for example, in stem cells, nanotubes, renewable energy, and grid and wireless technologies. In recent years, there has been an increasing demand by the government and employers in the UK for individuals with science and engineering skills. The government has emphasised the need for ‘Britain to be the most attractive location in the world for science and innovation' (HM Treasury, Department of Trade and Industry, and Department for Education and Skills, ‘Science and Innovation Investment Framework', 2004).
The Home Office has recently tightened THE requirements that overseas nationals must meet to qualify for indefinite leave to remain (also known as permanent residency or settlement) and British citizenship. The purpose of these changes is to enforce the government’s view, as stated in its February 2005 paper ‘Controlling our Borders: the Five Year Strategy for Asylum and Immigration’, that permanent migration should be a journey towards being as socially integrated as possible.
Article 49 of the EC Treaty (Article 49) establishes the principle that member states should ensure the freedom to provide services within the European Union (EU). This fundamental freedom includes the right of a service provider established in a member state to temporarily post workers to other member states in order to provide a service.
In February 2005 the Home Secretary announced details of the government's proposed five-year strategy for asylum and immigration. It was stated that the driving force of this strategy was to achieve greater public confidence in the immigration system. After a period of consultation with immigration practitioners and people representing a range of sectors across the UK and overseas, the government has now published its response to this consultation within the Home Office paper ‘A Points-Based System: Making Migration Work for Britain' (the paper).
US illegal immigration is at an all-time high. Close to 11 million undocumented individuals are living in the US today and the number is growing by at least 750,000 each year. Most undocumented workers have been in the US for long time - 70% for more than five years. It has been estimated that it would cost $41.2bn annually for five years to deport the undocumented population. Uprooting these workers would cause severe economic and social disruption, as they make a great contribution to the US economy, working in agriculture, hospitality, construction and other industries.
It is widely acknowledged that highly educated ‘H-1B' foreign professionals, many of whom were educated in the US, bolster the US workforce and propel the economy forward. These professionals fill shortages and provide US companies with unique skill sets and knowledge in specific areas. But the annual cap on H-1B visas means that employers will be unable to access these highly educated professionals until the start of fiscal year 2007, which commences on 1 October this year.
The Civil Partnership Act 2004 (
FROM 1 November 2005 all new naturalisation applicants must demonstrate knowledge of the English language and life in the UK to have their application considered. Applications made before this date will not be affected by this change.
The Home Office has amended the Highly Skilled Migrant Programme to allow MBA graduates from the top 50 business schools in the world to automatically qualify without meeting any further criteria.
New rules introduced in 2005 (the Immigration (Procedure for Marriage) Regulations 2005) require overseas nationals wishing to marry in the UK to obtain a Certificate of Approval before being able to give notice to marry at a registry office. Aimed at preventing bogus marriages solely for the purpose of gaining permission to stay in the UK, the new rules are very wide-ranging and affect large numbers of overseas nationals already living here in the UK.
In November 2004 the UK joined an exclusive club of a handful of countries prepared to recognise civil partnerships between same-sex couples on a par with marriage. This article looks at the effects of the new policy on immigration law.
The United States Citizenship and Immigration Services (USCIS) is the largest immigration service in the world. It receives between six and eight million applications and petitions every year, and employs a staff of 15,000 in its 250 offices worldwide.
Against a background of tightening immigration controls, the Home Office has implemented policies to reduce the options for overseas nationals wishing to extend their stay within the UK.
In today's litigious climate employees are more aware of their employment rights than ever before. They are particularly conscious of their prerogative to pursue claims before employment tribunals and civil courts for infringement of those rights. Consequently, employees have a higher expectation of the level of treatment they receive at work, and employers are required to take ever greater care, through the introduction of appropriate policies, procedures and contractual terms, to protect themselves from potential claims.
Despite many years of research and several attempts at widespread introduction, it is only now that security systems based on biometrics - human characteristics such as faces, hand shapes and fingerprints - are finally being implemented.
In today's business climate, to remain competitive companies must ensure that they address and eliminate immigration issues which could affect the mobility of their workforce. Moving employees to and within Europe can sometimes be problematical.
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.
British nationality law is more complex than the equivalent laws of many other countries. It recognises a variety of British nationalities, each conferring different rights. This is mainly due to the history of the British Empire, and the rights that citizens of its colonies and territories have acquired as a result of colonial expansion.
If the UK economy is to attract and retain talented and experienced workers from overseas, there has never been a more urgent time to act. Current Home Office processing delays and predicted changes to the Immigration Rules mean that the government is closing the door on overseas nationals with skills valued by UK businesses.