What started as a minor aberration has now turned into a worrying trend. The Home Office confirmed on 24 May that we have hit the monthly cap on visas for skilled non-EU workers for the sixth month in a row. On top of that, Freedom of Information data shows that the situation does not look like it will ease up any time soon.

The visa “cap” was introduced by the coalition government in 2010 to curb the number of new applicants who could come to the UK every year on a Tier 2 General visa. It was until recently an entirely benign piece of policy which enabled the government to confidently declare that it was controlling net migration, while in reality having very little real practical effect on the Tier 2 system. Over the last few months it has begun to show its teeth.

The system works like this. The cap is currently set at 20,700 a year, a figure which is then divided into 12 monthly allocations which are up for grabs for new applicants. By the fifth of each month, organisations that hold a licence to sponsor migrants to work for them can make a request on the Home Office’s online system for a Tier 2 General certificate, known as a restricted certificate of sponsorship or RCoS to those of us who are fond of a clunky acronym. As there is a limit, there has to be a system to prioritise requests. So they are scored according to a number of criteria, set out in paragraph 29.18 of the Home Office’s Tiers 2 and 5 guidance.

In essence, roles which are on the shortage occupation list, that pay large salaries or are at a higher skill level will be prioritised. They score the largest amount of points and will be allocated first from the monthly pot of certificates. If the Home Office has received more valid applications for restricted certificates than there are certificates available for that month, it will either approve all of the certificates at the last points level it comes to, exceeding the limit and leaving the next month in deficit, or refuse all applications scoring points at that level and carry a few certificates over into next month. The system is explored in more detail in this recent Free Movement post.

Whatever happens at the margins, if there are more applications than there are certificates available, the lowest-scoring set of applications always lose out. This adds further pressure onto the following month’s allocation as disappointed applicants try their luck again.

The backlog is not clearing. This is leading to increasing levels of anxiety amongst immigration practitioners and businesses alike who are unable to issue visas to fill staff shortages.

Thanks to a recent Freedom of Information request we can now start to understand the scale of the problem.

Between November 2017 and December 2017 (when the cap was first hit) there was a marked increase in the number of restricted certificate requests from 1,812 to 3,005. Over the intervening months, the numbers have remained high, culminating in another surge in April.

The FOI data shows that the number of refusals has grown month on month, as has the amount of points a request needs to be awarded to stand any chance of being allocated. The last few months have seen it hover around the 45 to 50 points mark — equivalent to a job with a salary of £50,000. This means that requests for certificates for jobs with salaries under £50K are highly likely to be refused, leaving immigration advisors in the ludicrous position of having to warn clients that jobs which are considered, by most estimations, to be highly lucrative may not be candidates for Tier 2 visas.

The numbers put in stark focus a problem which is getting worse rather than better. What should be done? Well, the argument can be made that the cap is doing exactly as the creators of the policy intended: keep down the number of skilled migrants from beyond the EU entering the UK. But this was a policy put in place in a pre-Brexit age, when the idea of leaving the EU was a UKIP pipe dream and the government had to make do with controlling migrant numbers by tinkering with a Tier 2 cap. Once we exit, the government will be able to limit the number of arrivals from the EU in whatever way it sees fit. This will have a far bigger impact on the net migration figures than the cap ever could.

In the short term, sensible suggestions to ease the pressure on Tier 2 such as taking jobs on the shortage occupation list and within the NHS out of the allocation system for restricted certificates of sponsorship should be implemented. This is, though, clearly another sign of the Tier 2 system struggling to keep pace with rapid changes in the modern labour market and creaking under the strain exerted by the Brexit process, as industries look beyond Europe to try and source workers. Innovative solutions are needed for the post-Brexit work permit system, and it’s time to start brainstorming.