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Managed migration one year on: its impact on the entertainment industry

March 2006 - Media, Entertainment & Sport. Legal Developments by Harbottle & Lewis LLP.

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Immigration has always been a political animal. Only three years after the Nationality, Immigration and Asylum Act 2002 was introduced the Home Secretary, Charles Clarke, announced yet another overhaul of UK immigration in February 2005 as part of the government?s election campaign. A year later and the government is trying to develop and commence the implementation of its pledges set out in the five-year strategy for asylum and immigration. However, there are widespread feelings of concern about the proposals, including the points?based system for work and study routes to the UK and the detrimental effect it could have on UK businesses.

The government’s five-year strategy, entitled ‘Controlling our borders: Making migration work for Britain’, redefines many of the key aspects of the current UK immigration system. The new regime ultimately aims to replace ‘complex and confusing rules’ with a single, clear points regime, which will ensure that migrants will only be given jobs that cannot be filled from our own workforce or if they bring skills into Britain that are in demand and will boost the UK economy.

While these changes will negatively impact all sector industries, it will be the entertainment sector that could be most affected.

The current system of work permits for entertainers is administered by a separate division of the Home Office, which has years of exclusive and dedicated expertise of dealing with this unique industry sector. To ignore their expertise and move all work permits overseas to visa officers accustomed to dealing with doctors, bankers and IT specialists can only be detrimental to the entertainment industry.

Some key changes
The proposed new five-tier system is intended to be a self-assessment application made by the individual to the British diplomatic post in their country of origin. This points-based scheme is intended to replace all the current work permit schemes, the Highly Skilled Migrants Programme (HSMP), the student rules and the sports and entertainers schemes.

In addition, there are a number of further changes proposed:

immigration and employer checks will be combined into a single pre-entry check where the individual must attend the British diplomatic post in their country of residence;

  • short stay visits will be reduced from six months to three months;
  • employers will have greater responsibilities with regard to immigration control to ensure that individuals comply with their permission [CHK - to work?] and do not overstay;
  • eligibility for indefinite leave to remain will increase from four to five years and require the individual to pass an English language test and prove their knowledge of life in the UK; and
  • family migration will be limited so that individuals who have settled in the UK will no longer be able to bring in dependants and their family members.

The government’s proposed points-based system for work and study routes to the UK has become an area of debate throughout its consultation process. By the end of last year, the Home Office claimed to have spoken to over 1,200 ‘customers’ across the country and carried out a number of sector-based workshops in different regions of the UK. However, there is feeling that the consultation process has been vague and many employers are only a year later starting to realise the full implications of what has been proposed.

Concerns
A number of immigration practitioners, including those at Harbottle & Lewis LLP, have expressed a number of concerns to both their clients and to the government. These include:

  • the ‘employers’ register’, whereby work permits will only be issued to employers who have been accepted onto the register – clearly this may be prejudicial against some businesses;
  • the potential delay and confusion when the three separate IT systems used by UK Visas (formerly the Foreign and Commonwealth Office), the Home Office and Work Permits (UK) are integrated into one system – a number of you will still have nightmares about when the Home Office implemented its last IT system in Croydon;
  • inconsistency in the decision-making process and turnaround time of applications between diplomatic posts issuing visas, rather than the current uniform and checked process provided by Work Permits (UK);
  • employers’ loss of control over the administrative process;
  • the likelihood of increased charges to employers to pay for the changes;
  • economic benefits to the UK will be affected by the limitation of family visits;
  • onerous provisions for employers, including fixed-penalty fines if they fail to ensure that migrants comply with their immigration permission; and
  • the abolition of the right to appeal.

Those who deal with immigration issues will be aware of the growing trend to outsource British Consulate and Embassy phone lines to private companies, which all charge a premium rate. It goes without saying that these helplines are not manned by immigration specialists and some are not accessible from the UK.

Entertainment sector
Further concerns have been expressed on behalf of the entertainment sector, on which the new regime could have a significant detrimental impact. The Home Office claimed to have involved 40 employers from the sector in the consultation process. However some large industry members have complained of not being sufficiently involved.

Fundamental to the efficacy of the entertainment business, the current law allows non-EU entertainers to enter the UK on a work permit for which the ‘employer’ (usually the booking agency or production company contracting with the performer or a member of their entourage) pays a flat-rate fee. This system works well for entertainers who often travel in groups and only need to be in the country temporarily. However, under the new system the ‘group work permit’ system will no longer exist and each non-EU individual will have to attend the British diplomatic post in their respective home country in order to obtain their work permission/visa. Each individual will then be charged a fee that will collectively cost the employer an amount far in excess of the current fees. The new system will create considerable expense for large tours and will provide booking agents and managers with logistical nightmares, with any number of individuals having to travel around the world in order to get their work permit from the British diplomatic post in their country of origin. This could potentially discourage employers from booking talented groups of non-EU artists to perform in the UK. It could also discourage performers and entertainers from coming to the UK, simply because of the aggravation factor. Delays to performers entering the UK for important rehearsal time and tight schedules should also be expected, as each country will have different decision-making processes and visa officers may lack specific industry knowledge.

The proposed removal of the right to appeal can only exacerbate this unworkable scenario further.

Situation summary
Overall, the common view seems to be that the new points-based system will prejudice the UK’s business needs, particularly with regard to specific industries where individual criteria will no longer apply. Many of the issues mentioned need to be dealt with to ensure public confidence, including decisions as to how the proposals will work in detail. The government’s response to the consultation process is imminent. However, it is uncertain whether or how these concerns will be addressed. Many practitioners and employers, are not confident that the government will listen properly to the concerns voiced and fear that the consultation was not a genuine effort to listen to those on the ground and take their concerns on board.

It is, therefore, a case of ‘watch this space’.

By Tracy Hrusa, e-mail: tracy.hrusa@harbottle.com.

For more information please visit www.harbottle.com.