Post
by ATBPLC » Tue Nov 28, 2006 11:38 pm
LETTER FROM HOME SECRETARY IN RESPONSE TO IMMIGRATIONS LAWYERS REACTION TO CHANGES
Consultation and timing:
I should first clarify that these changes are not the points based
system (PBS) and that we have not yet introduced the PBS. The
changes are, as the announcement stated, the first step towards the
pes, but they are different to that system. The new attributes are
indeed the same as those set out in the PBS Command Paper. However,
we have changed the HSMP attributes on two previous occasions within
the brief lifetime of the programme and these changes are not
different in kind to those. Indeed, HSMP has always been a
'points based system'. Many of the features which will define the
PBS - the
introduction of control tests (for example, funds), the move to a
one-stage
decision process for Tiers 1-3, and the removal of the right of
appeal in entry
clearance cases - have not been introduced with this change. It is
therefore
not correct to assert that we have now introduced the PBS without
consultation.
It is not our normal practice to carry out formal public
consultations on changes to the Immigration Rules, and I strongly
dispute the contention that we have broken any undertakings to
consult.
The changes will come into effect on 5 December and we will be
monitoring their impact, fully evaluating the new arrangements
before we make formal preparations for the implementation of Tier 1
of the PBS.
An announcement of a definite policy change within three weeks
would, I believe, have led to an even larger increase in the number
of applications, which would have resulted in very significant
operational difficulties, and, as a result, poor customer service
for applicants. In the light of this, there is no reason not to
bring the changes in quickly. However, by making the forms and
guidance available during the suspension period, we have tried to
avoid inconveniencing our clients.
You are also concerned that people who were in the process of
preparing
their HSMP applications have been disadvantaged by the changes. I
accept
that applicants in some cases may need to make further enquiries to
obtain additional documents, but this is unlikely to result in
significant additional expense - applicants will possess many of the
necessary documents themselves and are likely to be able to use some
of the others which they were already preparing to submit. In fact,
applicants can still submit applications on the old FLR (lED) form
during the suspension period, so they will not necessarily have to
redo their whole application. They can either send in additional
material or wait for us to write out to them, requesting additional
documents.
Tests at extension
I do not accept that those who receive a grant of leave in a
category have
a legitimate expectation that the rules for further grants of leave
within that
category which existed at the time of their first grant of leave
will apply to them
for the rest of the time that they spend in the UK. The rules must
be capable
of being changed from time to time so that the Government can carry
out its
policies - in this case, to ensure that those granted further leave
to remain
under HSMP will benefit the UK economy. The power to make changes to
the
Immigration Rules, as laid out in the Immigration Act 1971, is not
restricted to
changing the rules for entry, or to changing the leave to remain
rules only for
those who obtained leave to enter when those were in force. The only
expectation which applicants should have is that the rules and
policies which
are in force when their application is decided will be correctly
applied to them.
Indeed, it has never been guaranteed that applicants would qualify
for
further or indefinite leave to remain, so there has always been the
risk of not
qualifying for further leave. We have merely tightened up the rules.
I also do
not believe that this is incompatible with the requirement under
HSMP to have
made the UK your main home. This does not require the severing of all
connections with the country of origin and refers to the need to
make the UK
your main home during the course of your leave, which is necessary
for highly
skilled migrants.
As you know, we have introduced extensive transitional arrangements
to
ensure that we retain many of the talented people who will not pass
the new
points test for extension applications. These cater both for the
self-employed
and independent contractors, and make the process of switching into
work
permit employment for those who have been in employment easier. I am
satisfied that this will allow the vast majority of people who have
been
economically active, but who will not pass the points test, to be
granted further
leave to remain.
The statement in the consultation document on the PBS that HSMP
Participants and work permit holders will be able to qualify for
permanent
Residence remains correct. That statement did not, however, imply
that the qualifying criteria for grants of leave under those
categories would remain
Unchanged.
I note your concerns about the introduction into the two new
prescribed
forms of a declaration that applicants recognise that the
Immigration Rules
may change during the course of their leave. This does not introduce
a new
power. As I explain above, we are already able to change the rules
in this
manner. This merely makes it explicitly clear to the applicant that
this is
possible, and so is in the interests of applicants. The introduction
of this
clause is not intended to justify the current changes, nor does it
imply that
applicants would not have been aware of this possibility beforehand.
The
power which this clause describes is not about changing 'the basis
of [the
applicant's] status at any point in the future without any notice at
all', as you
write. Unless there are individual reasons to curtail somebody's
leave, which
do not relate to broad policy changes, applicants will always be
able to
complete their existing leave. The issue in this case is about
future grants of
leave. I understand that you feel that there should have been
consultation
about the introduction of this clause. It would not be practicable
for us to
consult on the introduction of every new clause into a form,
especially when
the clause relates to the exercise of an existing power.
New attributes
You have raised a number of issues concerning the changes to the
points
scoring criteria.
We have removed the points for work experience in favour of those for
previous earnings. When drawing up policy before the publication of
the PBS Command Paper, my officials carried out an analysis of
existing HSMP participants at the further leave to remain stage.
Those applicants who had scored points for previous salary were
earning significantly more than those who had not, and those who had
not (those who tended to score the majority of their points on the
basis of previous work experience) were often not in highly skilled
employment. We believe that the best judge of whether an applicant
has the appropriate experience to succeed in the labour market is
an employer, rather than an immigration official.
People with work experience but a lower previous salary are welcome
to apply for a work permit; their prospective employer will often
offer them a job on this basis. This is reflected in the responses
to the consultation. The consultation response covered both Tiers 1
and 2, and the emphasis on the importance of work experience as
opposed to salary is likely to be more in relation to Tier 2. This
was the impression which my officials gained from their analysis of
the consultation responses. Finally, previous salary is a
much clearer, more objective attribute than work experience, and the
responses to the consultation listed objectivity as the most
important factor in drawing up the new system.
We have emphasised the degree requirement because we are satisfied
that those applicants with degrees are likely to be those who best
meet the aims of the HSMP. Applicants may also apply on the basis of
equivalent level professional qualifications and those without a
degree may apply under other categories of the Immigration Rules. We
have included points for age in order to reward young, highly
skilled migrants who have good salaries for their age, but who may
struggle to gain enough previous salary points because of their
lack of work experience. The inclusion of points for age is a natural
consequence of the inclusion of those for previous salary.
The Home Office has not made misleading statements about the
inclusion of work experience as an attribute, nor have we ignored the
responses to the consultation. As I have mentioned, the responses
about previous work experience in the consultation are likely to
have related more to Tier 2. We gave very strong consideration to
the consultation responses, but we may sometimes take a different
view, particularly if our analysis has led to
different conclusions. Any comments on work experience in the five
year
strategy reflected our thinking at that time and predated that
analysis - had
we already made a definite decision in February 2005 that points
would be
included for certain factors, this would have made the consultation
superfluous.
It is correct that those who switch into another category will not
be able to
use their previous leave under HSMP to qualify for settlement.
Although I am
aware that this may cause frustration to some people, the
Immigration Rules
are drafted in this way (and have been for some time) because those
switching from HSMP into another route may not have been economically
active during their HSMP leave.
Any set of attributes which we choose is likely to exclude some
highly skilled people. I am satisfied that the new requirements for
HSMP will exclude as few of these people as possible and that they
contain sufficient flexibility to cater for talented people from
across the world.
I do understand your concerns and I realise that the introduction of
these changes may at first lead to some uncertainty amongst those
who apply for the HSMP. However, I am satisfied that these changes
strike the correct balance between the need to address the needs of
HSMP applicants with the need to carry out policies which are in the
interests of the UK.
For the reasons which I have set out, I am afraid that I cannot
agree that the changes be suspended pending formal consultation, or
that the old rules for extension applications be applied to those
already in the UK. Regarding your request for confirmation that at
least twenty-one days' notice be given for all future Rules changes,
we will always endeavour to give this notice unless there are strong
reasons not to, as there were in this case.
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