The proposal of an immigration cap, part of the Conservative election platform earlier this year, was aimed at giving the electorate a very clear message that ‘something is being done’ about so-called uncontrolled levels of immigration.
To test the waters, the government imposed interim measures from 19 July to restrict skilled non-European Economic Area (EEA) workers. For law firms, and many other sectors that rely on highly skilled workers, the poorly conceived restriction on the best and brightest minds joining the UK’s workforce is wreaking havoc and clearly indicates what is to come if the cap is not carefully managed.
From smaller international firms who want their staff to move freely between say, New York and London, to magic circle and City practices recruiting large numbers of trainees from emerging market countries, the UK’s legal profession has long relied on overseas staff to bring in the knowledge and expertise that it simply cannot get at home. If you need a specialist in US capital markets, the logical place to look for that experience is in the US. Furthermore, London is a global centre for legal services; it is where minds meet and deals are put together and finalised. If, by way of immigration restrictions, the right talent and experience cannot be found, business will relocate to other countries free of these constraints. And for ambitious overseas lawyers wanting to further their international legal careers, the UK is not the only option.
Cynical immigration practitioners among us would say that the current attention on foreign skilled workers is a ruse to distract attention away from the reality that immigration cannot be controlled, at least not in the ways the government would have us believe. It has claimed the cap is there to protect British jobs and ‘allow public services to cope’. But foreign highly skilled workers pay for themselves, by their economic and tax contribution. They can’t take British jobs either, because any post they apply for has to be offered to British and EEA nationals first. With EEA workers exercising freedom of movement rights, the UK has difficulty capping their numbers, let alone monitoring how numerous they are. Is the government focusing on non-EEA foreign nationals because they are easier to count?
Business threatsAt a recent UK Border Agency meeting, legal advisers raised compelling examples of business threats faced by their clients in view of the interim measures. Plans to establish new enterprises or expand were being jeopardised by needed specialists now not being allowed into the UK. The government official’s response was indifferent at best, but this approach can not last.
Pankina, a recent Court of Appeal decision, should inspire us to tackle the current shambolic approach to capping immigration. In his judgment, Lord Justice Sedley highlighted the need for immigration rules to be subjected to parliamentary scrutiny, not altered by ad hoc changes to Home Office policy guides. The government cannot change its core policy, and the cap would be such a departure, on a whim. Two judicial reviews in the works will challenge the interim measures by focusing on employers’ and skilled workers’ legitimate expectations. Having spent thousands (if not millions) on developing business plans which rely on key specialists, as well as workers investing their future in the UK, can the government suddenly pull the carpet from underneath them? Previous cases suggest otherwise.
In the meantime, practices will have to think strategically about how they will manage without the right mix of skills previously gleaned from overseas. But there are positive signs the legal industry will not take this lying down. The Law Society’s contribution to the recent government ‘cap’ consultations demonstrates that we can make our voice heard. Exerting pressure by working contacts inside parliament and lobbying may pay dividends.
Exert all the pressure you can.
Natasha Gya Williams is a specialist immigration lawyer with Nicholas Moore. She co-chairs the South West chapter of the Immigration Law Practitioners Association and sits on the Law Society’s immigration committee