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An NHS exemption will help, but the Tier 2 visa cap should go


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Less than two months into the job, Sajid Javid appears to be, so far, quite a pragmatic Home Secretary. Following six months of the Tier 2 cap wreaking havoc amongst employers and users of the Points Based System, resulting in the NHS losing out on hiring over 2,300 doctors, the Home Secretary has taken decisive action. He has announced that doctors and nurses will no longer be counted towards the cap on Tier 2 visas which limits access to only 20,700 applicants a year.

Changes to the Immigration Rules were laid before Parliament on Friday and are due to come into effect on 6 July 2018. They confirmed that health sector employers will now be able to employ doctors and nurses without having to use the restricted certificate of sponsorship system which is subject to the cap. Medics applying for Tier 2 visas to work in the UK under SOC codes 2211 (for medical practitioners) and 2231 (for nurses) will be able to use unrestricted certificates of sponsorship which are allocated directly to an employer, usually on an annual basis, according to their business needs.

The hope is that taking doctors and nurses out of the cap should free up certificates of sponsorship for other industries which have been struggling to source labour as a result. We have seen all types of businesses affected by the cap, from IT companies to law firms, and this has caused needless anxiety across the board for employers and visa applicants alike.

The litmus test will be in July when the monthly requests for certificates are allocated. Just how successful the changes will be depends on the size of the backlog which has built up. From the available data, we can see that in April 1,532 doctors and nurses applied for certificates of sponsorship with 811 being allocated. The total number of applications for that month for restricted certificates was 4,325 with 2,118 refusals. Taking doctors and nurses out of the allocation may only make a small dent, at least initially, in the backlog and it may take several months until we return to the status quo when the cap didn’t trouble us at all.

Healthcare employers should also hesitate before thinking their recruitment worries are over. It is likely that many will have to make a request for an allocation increase of unrestricted certificates to cover the applications for their doctors and nurses on the Home Office’s online system. These requests can be refused by the Home Office if the employer hasn’t provided sufficient justification for the increase. Furthermore, the advertised Home Office waiting time for processing sponsor change of circumstance requests is 18 weeks, unless a £200 fee is paid to expedite it via a phone line which is frequently engaged or goes straight to voicemail. Medical visa applicants therefore may face further frustrations with the Tier 2 visa system.

If the backlog does eventually clear, taking doctors and nurses out of the equation provides nothing more than a temporary fix for a problem which will continue to fester. With Brexit on the horizon, there is still potential for the cap to cause further mayhem as businesses look to non-EU workers to plug the inevitable gap in labour. Tier 2 is the only realistic immigration visa route left for workers from beyond Europe, so it is going to bear the brunt of any Brexit related overflow. It is therefore foreseeable that the cap will be hit again in the future.

Which profession will be lucky enough to be exempted from the cap to solve the problem that time? Simply taking industries out of scope of the cap in response to a political and media backlash is not a sustainable way to manage an system of immigration controls.

From an immigration policy perspective, Mr Javid has made a positive start to his tenure as Home Secretary. He has sought to distance himself from the ”hostile environment” and been alive to the failings of his department in regards to the Windrush generation. But the measures announced last week are in truth the bare minimum he could have done in response to the visa cap crisis. The Home Secretary should have been bolder: instead of just tinkering with who the cap applies to, he could have addressed whether the justification for having a Tier 2 cap still exists. Most businesses would argue that it does not.

The Tier 2 cap maintains the fallacy that our immigration system should be based on arbitrary and unrealistic migration targets rather on what skills and experience the UK labour market needs. The government should be brave enough to admit that the target for net migration is not achievable, nor is it necessary. The first step in the process of unwinding it would be to get rid of the Tier 2 cap. The Home Secretary gets marks for effort but there is still much more work to be done.


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Joanna Hunt

Joanna Hunt

Joanna Hunt is a Partner and Head of Immigration at DAC Beachcroft. She advises and supports a range of businesses and individuals with their immigration needs, with emphasis on sponsorship and work based visas. She is contactable on johunt@dacbeachcroft.com and tweets from @JoannaHunt12