The Migration Advisory Committee has recommended that the shortage occupation list is abolished and that people in the asylum system with permission to work are allowed to work in any role. These are some of the recommendations in the full review of the shortage occupation list, published yesterday.

The committee was commissioned to carry out the review in August 2022. The work was paused late last year at the government’s request but resumed earlier this year.

The future of the shortage occupation list

At the outset of the report, the committee stated that they have carried out the review on the basis that employers should not be able to pay salaries lower than the “going rate”, regardless of whether there is a shortage. The current situation is that where a job is on the shortage occupation list, an employer can pay a migrant 80% of the going rate or of the minimum salary threshold of £26,200 for a skilled worker (i.e, £20,960), whichever is higher.

The committee made the point that there is no good reason why a discounted salary should be paid where an occupation is experiencing shortages. Without that discount, the benefits to being on the shortage occupation list are significantly diminished. The committee considered that the skilled worker route provides an adequate response to the needs of employers without the need for the list.

They pointed out that many employers now have unlimited access to overseas labour as long as the minimum salary of £26,200 for the skilled worker route is met. The committee commented that many employers seemed unaware of this (those employers may want to read this and this).

The committee had discouraged stakeholders from submitting evidence in relation to higher paid roles, on the basis that inclusion on the shortage occupation list would not help them to use the immigration system more effectively. However submissions were still made, predominantly from government departments, arguing that the visa fee reduction that is available for roles on the shortage occupation list was a more than “negligible benefit”.

Submissions were also made on the point that the going rate for a role is not universal across different regions of the UK. In response to the latter point, the committee pointed out that there are devolved nation-specific shortage occupation lists and that submissions could have been made for roles to be included on there.

The committee proposed that instead of using the shortage occupation list, in future they could be commissioned to examine areas where there are labour market issues. Recommendations could include preferential access to the skilled worker route of suggestions for alternative immigration routes.

For these reasons, the committee recommended only eight occupations for the shortage occupation list for the UK as a whole and an additional two to Scotland’s list, as follows:

• Managers and proprietors in forestry, fishing and related services (SOC code 1213, Scotland only, only “fishing boat masters”)
• Laboratory technicians (SOC code 3111, UK wide, must have three or more years’ full time experience)
• Pharmaceutical technicians (SOC code 3217, UK wide)
• Boat and ship builders and repairers (SOC code 5236, Scotland only)
• Bricklayers and masons (SOC code 5312, UK wide)
• Roofers, roof tilers and slaters (SOC code 5313, UK wide)
• Construction and building trades n.e.c. (SOC code 5319, UK wide, only “retrofitters”)
• Animal care services occupations n.e.c. (SOC code 6139, UK wide, only “racing grooms”, “stallion handlers”, “stud grooms”, “stud hands”, “stud handlers” and “work riders”
• Care workers and home carers (SOC code 6145, UK wide, private households or individuals (other than sole traders sponsoring someone to work for their business) cannot sponsor skilled worker applicants)
• Senior care workers (SOC code 6146, UK wide)

For context, they received responses for 145 eligible occupations. The current list is here.

Social care workers

The social care sector was not asked to resubmit evidence to the review and it has been recommended that those roles remain on the shortage occupation list. This is because care worker roles were only added to the list in February 2022 and because of a lack of response from the government to the committee’s review of adult social care 2022 report.

The committee has said that they will continue to monitor use of the route, in particular as care workers made up 41% of all skilled worker visas granted in the year ending June 2023. The committee also said that they “are increasingly concerned about the serious exploitation issues being reported within the care sector” and will comment further on this in their 2023 Annual Report which will be published in December.

Asylum

The committee queried the application of the shortage occupation list to people in the asylum system who have obtained permission to work because their claim has been outstanding for over twelve months. In their 2021 annual report, the committee recommended that the government review its policy on preventing people from working while waiting for an asylum decision. The government did carry out a review from October 2018 to December 2021 which resulted in a statement concluding that no changes would be made.

In the 2021 annual report the committee also questioned the original reasoning for the restriction to the shortage occupation list, stating that it “does not seem to be particularly coherent”. For those not working in this area at the time, the context for the restriction is that it was introduced by the government following their loss in the case of ZO (Somalia) [2010] UKSC 36.

This case extended permission to work to people waiting for a decision not just on an initial asylum claim but also for a fresh claim. Rather than let a few more people work, the government effectively stopped everyone in the asylum system from accessing employment by restricting access to jobs on the shortage occupation list.

Back to the committee’s review, they recommended that if people have been granted permission to work while waiting for an asylum decision then they should be allowed to work in any job.

Recommendations in full

The full list of recommendations are:

• that the shortage occupation list going rate discount should be removed and that all occupations on a national pay scale, alongside those where the going rate exceeds the general threshold, be made ineligible for the list. The discount on the £26,200 general threshold would remain
• that, if granted the right to work, asylum seekers should be able to work in any job – not just in occupations which are on the shortage occupation list
• that the sponsorship rules for the creative worker visa route be updated, to remove the reference to the shortage occupation list and to allow employers to sponsor any occupation that is currently eligible for the skilled worker route without having to perform a labour market test
• that the Home Office attach a minimum salary threshold to the creative worker visa
• that if the government opposes allowing low-wage employers to pay below the general threshold for the skilled worker route, they should either abolish the shortage occupation list or heavily reform it to address this issue
• that if the government wishes to retain a shortage occupation list in its current form, the committee will conduct a minor review of the list early next year, unless otherwise directed by the government
• if the shortage occupation list is retained, its name is changed to the immigration salary discount list to correctly reflect its function in the immigration system
• that the government notify the committee if they want them to consider RQF 1-2 occupations as part of minor shortage occupation list reviews  
• that the Home Office provides confirmation by the end of January 2024 that they will move to the new SOC2020 occupational code standard and update the salary thresholds in line with SOC2020 in the spring 2024 immigration rule changes. If they do not so, the committee recommends suspending shortage occupation list reviews until this is done

If the recommendation to abolish the shortage occupation list is not accepted by the government, then the committee intends to carry out its next minor review of the list in spring next year. This is subject to the last recommendation on the list being completed.

Conclusion

It will be interesting to see the government’s response to these recommendations. Certainly the chances of the government allowing people in the asylum system to work in any role seem negligible. The committee provided an alternative recommendation which is that they could be restricted to jobs that are eligible for the skilled worker route. This is a slightly more likely scenario, however it seems that there is a risk that if the shortage occupation list is abolished without a replacement then people could be shut out of what is already a very limited ability to work while waiting for their asylum decision.