The new Home Secretary, James Cleverly, has announced a raft of fairly significant changes to UK immigration law across a number of different areas, including work-related visas, student visas and family visas.

There has immediately been lots of interesting comment from immigration lawyers. There is always a danger of just creating an echo chamber and commenting for the sake of likes and clicks, but we think there are some interesting issues that these proposals pose.

The key issue, as ever, is that we are yet to see the detail. All of these announced changes will need to be introduced by way of Statements of Changes to the Immigration Rules. You can see past Statements here. The meat of each Statement is a fairly confusing line by line amendment of the rules, accompanied by a more illuminating explanatory memorandum. There are often transitional provisions, so that changes only take effect in respect of applications made after certain dates.

To recap, the broad announcements were as follows:

• the minimum salary for foreign skilled workers will be raised from £26,200 to £38,700 (though the health and care sector will be exempt);
• the minimum income requirement for a spouse or family visa will be raised from £18,600 to £38,700;
• the Shortage Occupation List will be reformed and the current 20% going rate salary discount for shortage occupations will be abolished; and
• the rules on students bringing family members to the UK will be tightened, plus the Migration Advisory Committee (the “MAC”) will be commissioned to carry out a full review of the graduate visa route.

There is lots of say about all of these proposals, however, the following matters are particularly interesting:

1) There will be a number of exceptions from the new proposed £38k minimum salary for a sponsored Skilled Worker

This was evident from answers to questions posed after the announcement in the House of Commons on Monday. The Home Secretary, in answer to an MP’s question about how the proposed increase in minimum salary will affect the fishing industry in Northern Ireland, said: “We will work with the MAC to ensure that, as we get rid of the shortage occupation list, we do not undermine key industries”.

This suggests that there will be exceptions for certain sectors and occupations from the minimum salary figure. The MAC had already said, in a recent report, that it recommended the abolition of the Shortage Occupation List. The effect of being on the list is that a sponsor can legitimately pay a lower figure than the normally applicable minimums for any given occupation. This didn’t make a lot of sense for some types of occupations, particularly highly skilled occupations, where a shortage of qualified staff would surely lead to salaries being increased to attract talent, rather than reduced.

However, for other sectors, it’s a key issue. There is a shortage of workers who want to work in certain roles within hospitality, food production, and manufacturing. Those businesses simply cannot sustain higher salaries for certain roles in order to sponsor a migrant worker. An interesting analysis from the Migration Observatory shows that the proposed threshold increase will disproportionately affect regional businesses, certain types of occupation, and women (who are still statistically paid less than men).

Many types of occupations are already generally paid above the threshold, and so the change isn’t as wide reaching as it could be. The indications therefore are that the MAC, at a breakneck pace, is going to examine data for various sectors and come up with some exceptions. The hope is that this will involve consultation with affected sectors. However there is really very little time to do this before the expected changes in Spring 2024.

How the MAC might approach this is possibly foreshadowed in their most recent report where it was said:

“We suggest that in future the MAC could be commissioned to examine individual occupations or sectors where labour market issues seem particularly acute, possibly in collaboration with other bodies. We could report on these broad labour market issues and focus in particular on the extent to which immigration policy may, or may not, be helpful. Such recommendations could include preferential access to the SW route as the SOL currently allows, or suggestions for alternative immigration routes. Importantly it would also focus on changes to wages, terms and conditions, training and education and investment in technology that are likely to be a more sustainable response to the problems.”

Sounds great, but can they do this in the hectic early months of 2024?

2) The changes to the family route are going to dominate the courts and tribunals

Back in 2017, the UK Supreme court considered the minimum income requirement for family visas which had been commenced in 2012. In 2011, before the changes were introduced, the MAC undertook a careful analysis, having been asked to by the government, of the right figure for the financial threshold. If you are interested you can read the case R (on the application of MM (Lebanon)) (Appellant) v Secretary of State for the Home Department (Respondent) and the MAC’s report here.

The changes announced this week, in contrast to the careful consultative process which underpinned things when the rule was first brought in 12 years ago, do not appear to have been subject to any real consultation. They will be subject to litigation, there is no doubt.

It is far from certain that the outcome will, this time, be in the government’s favour. Courts often have to balance the rights of individuals versus the public interest. The public interest in this significantly increased figure is going to be harder to justify. It is also going to be difficult to displace arguments about the expectations of people already on the route, lawfully residing in accordance with the rules under which they were granted, who now face a shifting of the goalposts mid-way through.

This of course is of no comfort to the many thousands of families this could affect and these broad public law challenge cases often take a very long time to be resolved (as you will note from above, it took 5 years for the challenge to the original rules to reach the Supreme Court).

On a more case-by-case and individual basis, and in the short to medium term, the First-tier Tribunal (Immigration and Asylum Chamber) is undoubtedly going to see many more appeals resulting from the changes, particularly if they do apply to people already on the route (it’s not yet clear if they will).

When someone applies for a family visa, either to come to the UK, or to extend their existing visa, a refusal will attract a right of appeal to the First-tier Tribunal. The available ground of appeal is that the decision to refuse reflects a disproportionate interference in the rights of those affected under Article 8 of the European Convention on Human Rights.

Article 8 protects the right to family and private life. It is a qualified right. A public authority can interfere with the right, but only when it is in pursuit of a legitimate interest, and the interference must be proportionate to the aim perused. It has long been recognised that seeking to enforce the Immigration Rules consistently is a legitimate aim, but any interference in the rights of individuals and families, under Article 8, must ultimately be proportionate to that aim. There is an awful lot of complex law and jurisprudence underlying that assessment.

The First-tier Tribunal is highly experienced in the careful balancing exercise that is required under Article 8 appeals; an intensely fact specific analysis which seeks to determine if the decision to refuse permission to enter or stay in the UK would reflect a disproportionate interference in family life. An important additional component of this is the duty to give primary consideration to the best interests of any children affected by the decision.

Often a significant factor in the decision is whether it can be said to be possible that family life can be enjoyed in another country, assuming that the rules to live in the UK cannot be met.

For those applying to join spouses here, from abroad, it can be difficult to win these types of cases. Since someone is applying from another country to join their partner, there is often an examination of why, assuming the rules are not met, family life cannot be enjoyed in that country. Sometimes there are good reasons. For example, perhaps the British spouse is unable to live in a particular country because of health complaints and an inadequate provision of care in that country. If cases arise where the sponsoring British citizen has been employed long term in the UK, in a good job but not quite earning enough, it’s going to be a very difficult question to resolve whether it would be proportionate to expect them to leave their employment, family and life here, and relocate abroad for uncertain prospects.

Of course the hard hearted will say that they should have thought about that before falling in love with someone from abroad, and had cognisance of these new strict rules, but that’s not how life works.

Apart from people seeking permission to enter, the government has also suggested that the changes will apply to families who are already here on an existing spouse visa. This means that when they come to extend their visa, after the initial 2.5-year period, then they will face a significantly higher financial requirement. They will also have a right of appeal to the First-tier Tribunal, however, the assessment under Article 8 is likely to be very different for a family who have lawfully resided in the UK for 2.5 years, potentially with children, and with an income sufficient to support themselves but not quite meeting the new enhanced figure. These appeals are likely to be complex and finely balanced in many cases.

Whilst someone who appeals a decision to refuse permission to stay can lawfully remain until the appeal is resolved, it might not be resolved for many months, and will bring tremendous uncertainty and worry in the meantime. The appellant would also be unable to leave the UK until proceedings were resolved, lest the appeal be automatically withdrawn. The importance of good legal advice cannot be understated, but of course it’s yet further unwelcome expense.

3) The effect on creative sectors is unclear

In its most recent report, the MAC recommended the reform of the creative worker visa rules, which is relied on heavily by the Film and TV industry. The creative worker route retains a resident labour market consideration in the form of codes of practice; there are restrictions on simply engaging a non-UK cast or crew member without first having regard to the resident labour market. The MAC said:

“We therefore recommend that the sponsorship rules for the Creative Worker visa route be updated, with the reference to the SOL being removed and to allow employers to sponsor any occupation that is currently eligible for the SW route without having to perform a labour market test. We want to emphasise to the Government that, should it not implement these recommendations, and in light of the changes to eligibility for the SOL which we discuss above, immigration arrangements for the CW visa would inadvertently be made more restrictive and costly.

We also recommend that the Home Office attach a minimum salary threshold to the CW visa. Such a threshold should ensure that there is no economic advantage in using the CW visa to pay lower salaries than under the SW route for the same job, in turn minimising the risk of exploitation and the undercutting of resident workers.”

So far so good. However, that report was not written in contemplation of the Government’s decision to raise the minimum salary for a Skilled Worker visa to just below £38,700. We doubt the MAC will be happy with relying on conclusions it had come to in the context of a system which is now going to be fundamentally changed.

The removal of the codes of practice would simplify things. Creative workers for Film and TV are generally paid more than the proposed new minimum and most sponsored workers in that sector, in our experience, benefit from an exception under the codes of practice. However, the same might not be said for other creative sectors. It’s an example of how public money is wasted by consultative bodies spending time and resource to carefully come to conclusions on a particular system before large parts are rendered moot by fundamental changes announced with no foreshadowing or consultation.

Summary

In summary, there is a lot of uncertainty. The constant flux in immigration law and policy is disconcerting, even for professional advisors. The last few years with Brexit, Covid and digitalisation have resulted in head spinning levels of complexity. Good advice can only go so far when the future is so unpredictable. Yet there are certain core fundamentals regarding how immigration law and policy works, and having a good grasp of those fundamentals is the best way of reducing anxiety. We think the mantra must be; “watch this space”, the devil will undoubtedly be in the detail.