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Do the Immigration Rules discriminate against women who want to work in the UK?


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Today is the deadline for employers with 250 or more employees to publish calculations showing the size of the pay gap between their male and female workers. The gender pay gap is the percentage difference between the average hourly earnings for men and women; men earn 18.4% more than women across the UK. The hope is that by shining a light on pay disparities in organisations such as the BBC, employers will be forced to take action to bring about equality in salaries and career attainment between men and women in the workplace.

In that spirit, this post considers whether the Immigration Rules which govern how migrants are able to work in the UK adversely impact on women. Statistics show that far more men migrate to the UK for work than women. This can be attributed to the fact that men are traditionally the main wage earner in a family — but could the Immigration Rules also be playing a part in preventing women from building their careers in this country?

To be clear, there is no suggestion that the Rules directly discriminate against women. Clearly they apply to both genders in the same way. But there are a number of provisions of Tier 2 (the main visa route which enables migrants to work in the UK) that could be indirectly discriminatory towards women, as they place female workers at a disadvantage compared with their male counterparts.

Salary thresholds

Tier 2 is set up as a sponsorship system. An employer obtains a sponsor licence which enables them to issue certificates of sponsorship to non-EEA citizens to work in the UK. The rules have been developed to ensure that not all job roles can be sponsored; access to Tier 2 is first of all limited by salary thresholds.

For instance, the main pay thresholds for Tier 2 General are £20,800 for new entrants, £30,000 for experienced workers or the “appropriate rate” for the job that has been offered, whichever is the higher. The monthly allocation of restricted certificates of sponsorship is also prioritised by how much the role pays so that jobs with higher paying salaries are more likely to be granted certificates. The last four months have seen certificate requests for lower paying roles being refused due to the cap being exceeded.

The reasons for the existence of the gender pay gap are complex and to some extent disputed. What the reporting system has demonstrated is that women are irrefutably paid less than men across the majority of industries. The Tier 2 system of salary thresholds will inevitably affect women more than men, making it less likely they will be able to work in the UK under this visa route.

Female workers will also be hindered by provisions of Tier 2 which require salaries to increase while migrants are in the UK in order for them to be able to continue their stay.

Firstly, the standard occupational codes for Tier 2 which are used to categorise jobs have two salary limits: one for “new entrants” and one for “experienced workers”. The lower new entrant rate enables younger applicants to work in the UK using the Tier 2 visa route. However, when the applicant comes to extend their visa after completing three years on a Tier 2 General visa, they must be paid at the “experienced worker” rate or their application will be refused.

Secondly, the minimum income threshold for indefinite leave to remain, set at £35,500 from 6 April 2018, means that some Tier 2 migrants will need their salaries to increase over a five-year period in order to live permanently in the UK.

Bearing in mind that analysis of the gender pay gap shows that women’s pay growth is lower than for men and stops growing at a younger age, expecting female workers on Tier 2 visas to meet a set salary target is potentially discriminatory and could prevent them remaining in the country long term.

Part-time work

Flexible working arrangements enable employees to adapt their working arrangements to suit their lifestyle. Many employees want to work a shorter week due to child care commitments or to improve their work-life balance. Flexible working should be offered by employers to both genders, but female workers are more likely to take it up: statistics show there are far more women in part time roles.

Surprisingly, part time work is not directly catered for by Tier 2. Only migrants who are paid significantly above the salary thresholds are entitled to do it and remain within the rules as the minimum salary thresholds for Tier 2 cannot be pro-rated to accommodate flexible hours.

For example, a Tier 2 General visa holder who earns a full time salary of £32,000 would not be able to work part time as their salary would dip below the minimum income threshold and they would no longer be eligible for Tier 2. The worker would need an extremely generous employer willing to bump up their salary to off-set the reduction in hours.

The rules mean that part-time work is not an option for middle income workers under Tier 2, detrimentally affecting women more than men due to the high numbers in part-time work.

Skill level

Skill level is also a barrier to accessing Tier 2. Employers who wish to sponsor non-EEA migrants to work for them must be offering a job which is at Regulated Qualifications Framework (RQF) level 6 or above. These are roles which are considered degree level jobs, meaning that non-EEA low skilled workers are effectively shut out of Tier 2 and are not able to work in the UK.

Once of the principal explanations for the gender pay gap is that men occupy most senior highly skilled roles. As such, they will inevitably have easier access to Tier 2 visas. Women, on the other hand, are more likely to be in low skilled work, often despite being highly qualified, particularly after a career break to have children or for other caring duties. The Tier 2 skill barrier will therefore make it more difficult for women with skills to offer the UK job market to apply for work and build their careers in the UK.

The last year has seen a welcome focus on the challenges that women face in the workplace and there is now a real sense that barriers which prevent women reaching their full potential at work need to be addressed. With this in mind, the rigid and out-of-date structures of Tier 2 seem like relics of a bygone era. Its rules are now woefully out of step with how businesses work and are failing to cater for the needs of female workers in particular. A radical overhaul is needed to ensure that the UK is able to attract the brightest and the best women, as well as men, to work in the UK.

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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