On 20 July the government announced requirements and application procedures for the recently introduced tier 1 (exceptional talent) route under the points-based system. These are part of recent reforms to reduce net migration into the UK and to tackle abuse, while at the same time encouraging the best and the brightest migrants.
Laid before parliament on 16 March, the new free-standing route came into force on 6 April alongside a number of other material changes to the immigration rules, and was open for applications on 9 August. Significantly, the tier 1 (exceptional talent) category should benefit not only those who have already been recognised as leaders in their fields, but also, for certain disciplines, those with the potential to be recognised as such.
With this niche category, the government hopes to attract the world’s top talent in sciences, humanities, engineering and the arts to come and work in the UK. However, as viable avenues of migration to the UK for skilled and highly skilled workers continue to atrophy and even disappear altogether, the new route’s initially limited allocation of only 1,000 places could serve as a barrier rather than a beacon to many of those ‘exceptional’ individuals whom the government hopes to attract.
Designated competent bodies
The tier 1 (exceptional talent) route is overseen by four ‘designated competent bodies’, whose primary roles will be to review individual requests and determine whether the migrant is, in their opinion, exceptionally talented.
Appointed by the UK Border Agency (UKBA), these designated competent bodies will also be tasked with agreeing upon, publishing and maintaining the requirements under which initial applications are made.
This approach appears to be in line with the UKBA’s approach under tier 2, tier 4, and tier 5, where a lion’s share of the assessment of applicants has been delegated to third parties. The UKBA will, however, retain power to enforce the rules.
By doing this, the UKBA hopes to ensure that those selected are the brightest and best in their respective fields. Each designated competent body will be allocated a set number of places, but it will be possible to transfer places among the four bodies to meet additional demand.
The designated competent bodies will comprise:It is noteworthy that, although the majority of these designated competent bodies will consider both individuals with ‘exceptional talent’ as well as those with ‘exceptional promise’, in accordance with the stated purpose of the new rule, Arts Council England has only published eligibility criteria for the former. Whether this is an oversight or intentional remains to be seen.
- The Royal Society, a fellowship of the world’s most eminent scientists, which will be allocated up to 300 places;
- Arts Council England, the national development agency for the arts, which will be allocated up to 300 places;
- The Royal Academy of Engineering, Britain’s national academy for engineering, which will be allocated up to 200 places; and
- The British Academy, the national academy for the humanities and social sciences, which will be allocated up to 200 places.
The application process under tier 1 (exceptional talent) is divided into four main stages:
1. Applicants must first request a unique reference number from the UKBA. This request must be made by email and must indicate which designated competent body the applicant will be seeking his or her endorsement from;
2. Provided there is still a place available in the field indicated by the applicant, the UKBA will provide a unique reference number to the applicant;
3. The applicant must then send the completed application with their supporting documentation and unique reference number to the UKBA within 10 days of receiving the number. The application will then be forwarded to the designated competent body, which will advise whether the applicant meets the criteria;
4. Provided that the designated competent body has endorsed the applicant, the UKBA will then make the final decision regarding whether the application should be approved.
Grants of leave
As with the other tier 1 migrant subcategories, applicants seeking entry under the tier 1 (exceptional talent) route will not need sponsorship by an employer. Additionally, there is currently no provision for an individual already legally in the UK under another immigration category to switch while in-country.
Tier 1 (exceptional talent) applicants who are endorsed by a designated competent body and who meet all other requirements of the immigration rules will initially be granted permission to stay for three years and four months.
Thereafter, they will be able to extend their leave for a further two years provided: they are economically active in their respective field; the designated competent body has not withdrawn its initial endorsement; and they meet an English language requirement. After five years of continuous residence in the UK as a tier 1 (exceptional talent) migrant, individuals may apply for indefinite leave to remain.
As noted above, there will be an initially limited allocation of 1,000 endorsements, between 9 August 2011 and 5 April 2012. This inaugural period will be divided into two stages with each stage receiving 500 places.
The stages run from 9 August to 30 November 2011 and from 1 December 2011 to 5 April 2012, after which the number of places available will be reviewed. The total number of places will be divided with 300 allocated for arts and culture, 300 for the natural sciences and medical research, 200 for engineering and 200 for the humanities and social sciences.
There are obvious and quantifiable benefits to the new tier 1 (exceptional talent) category. It should come as no surprise that the UK should wish to attract the best and brightest minds to its shores, and having a clearly defined route (or routes) is not only advisable, it is imperative.
On the other hand, it is too soon for applause. It is curious that the UKBA should wish to put a limit on the number of exceptionally talented individuals entering the UK. Indeed, the government’s stated aim of reducing net immigration from the hundreds of thousands to the tens of thousands seems at times blindly misguided, and focused more on public perception than reason or reality.
Why, one must query, would the government wish to limit, among others, Nobel laureates, Academy Award nominees, Pulitzer Prize winners and other remarkable and talented individuals from entering the UK for work?
Moreover, the limit does not seem to align with other current tier 1 sub-categories. There are, for example, no caps on the number of tier 1 investors or entrepreneurs entering the UK. Why then with ‘exceptionally talented’ people?
In a recent press release, immigration minister Damian Green stated: ‘The UK is a global leader in science, humanities and engineering and we are a cultural centre for the arts. We will continue to welcome those who have the most to offer and contribute to our society and economy.’
This stands in stark contrast to a recent Science Insider interview with Paul Nurse, president of the Royal Society, one of the four designated competent bodies appointed by the UKBA.
In that interview, Nurse expressed the Society’s disapproval of the government’s approach, stating, ‘The fact is the Royal Society does not believe there should be restrictions on the number of scientifically talented individuals who can work in the United Kingdom.’
It remains to be seen how the new category of tier 1 (exceptional talent) will play out during its initial period from 9 August 2011 to 5 April 2012. What seems certain, however, is that it will fall far short of its intended purpose.
Laura Devine, Laura Devine Solicitors
Matthew Meyer at Laura Devine Attorneys LLC contributed to this article