Coalition Government Capping Policy

The "four strand policy" that the government announced is starting to take shape. The aim is to "reduce net immigration to the levels of the 1990's", and the new government intends to achieve this through the most controversial "strand": the introduction of an annual limit or "cap" on economic migrants.

The good news is that under Tier 1, Entrepreneurs and Investors, along with the Post Study Work sub-category, will not be affected; however, the Tier 1 (General) category has undergone considerable change. In addition to an interim cap to limit out of country applications to 5,400 between now and April 2011, there has also been a shake-up in the way points are allocated, making the eligibility criteria much tougher.

The minimum points requirement, awarded based on Age, Qualifications, and Earnings, has risen from 75 to 80, with the English Language and Maintenance requirements remaining at 10 points each to make a required total of 100. The Earnings criteria have also changed, previously earnings of £40,000 or more merited the maximum 45 points, but now the same £40,000 will only attract 25 points. It is however, possible to gain the maximum 80 points from earnings alone if they exceed £150,000. This change is effective as of 19th July 2010.

Tier 2 has also been capped and limited to 18,700, but no substantial changes in the process are involved, only a stricter approach to granting Certificates to Sponsors. The government's first announcement had excluded Intra-Company Transfers, Elite Sportsmen and Ministers of Religion from the quota, but, ominously, this exclusion was omitted from the later version.

The government arrived at these "capping" figures by taking the number of visas issued in the relevant categories for 2009 and reducing it by 5% (1,300); an imminent stakeholder consultation has been announced to identify a viable figure post April 2011. The caps pertain exclusively to Entry Clearance applications and will not for the moment affect applicants for Leave to Remain.

It is difficult to know how the annual limit will work in practice. There is an acknowledged fear of a "surge" in Immigration applications to beat the quotas, and a further worry around situations where applications are submitted which meet all of the Immigration requirements but no "allocation" remains to allow a visa to be issued. Instead of refusal, these will be held over to the next period for consideration - so conceivably the new quota could be exhausted before the new allocation period has even begun! Similarly for Tier 2, what will happen when a Sponsor issues a Certificate but the Worker is unable to join…?

There are clearly still issues to resolve, and flexibility is paramount: caps with no "give" cause headaches!

Gherson's team of immigration solicitors are ideally placed to provide advice on this or any other issue relating to UK immigration.