The cap that never was
January 6, 2011 — Comment
Written by Anne Singh
Anne Singh reports on recent changes to policy affecting migrant care workers.
You would be forgiven for missing it, but in mid December 2010, amidst the sustained stream of government announcements about restricting the numbers of spouses, students, migrant workers – pretty much anyone – coming to the UK from outside the EEA, there was a short-lived victory for migrant care workers when a court ruled that the government’s temporary cap on migrant workers was unlawful and, indeed, had never existed at all.
However, the government acted quickly – not to review and reconsider all those sponsorship applications unlawfully refused but – to ‘reinstate’ the cap that never was.
In June 2010, Theresa May announced, ahead of a permanent cap, a temporary limit on the number of migrant workers from outside the EEA to be allowed into the UK. Between June 2010 and April 2011, she proceeded to limit the number of workers to 24,100 – down around 5 per cent on the same period in 2009/10. The temporary cap was aimed at preventing a rush of applications for ‘sponsorship certificates’ before the permanent cap was set. The cap specifically reduced the number of sponsorship certificates which could be issued by employers in Tier 1 and Tier 2 employment.
There were expressions of concern even protest from various sectors who depend on migrant workers, indeed, concerns were raised by directors of children’s services who called for a rethink of the immigration cap because it could exacerbate the shortage of experienced children’s social workers.
Impact on care sector
However, in the care sector the cap had an immediate impact. It is thought that about 13 per cent of staff employed in the care sector are migrant workers from outside the EEA. A large number are from the Philippines, some are from India, South Africa and other African countries.
The temporary cap was introduced with complete disregard for care providers and their staffing requirements and certainly with no regard for the continuity of care for those in residential homes who rely on a familiar face and who would find it profoundly distressing to lose them – if staff were forced to quit their jobs. Care workers are on the front line of caring for those in residential care homes.
The immediate effect was on sponsorship certificates for those preparing to come to the UK to work. With the cap in place, refusals were arbitrary, that is, based on no consideration of the need for the worker (senior care workers are a recognised skills shortage area) or indeed the skills and experience the worker would bring to the UK. Furthermore, there was profound concern that thousands of care workers could have been forced to leave their jobs as a result of the cap. The move specifically affected care workers in care homes who are studying for NVQs and may wish to move up to Tier 2 as part of their career progression. These students would have to either enrol themselves on other courses and pay thousands of pounds in tuition fees in order to qualify for a Tier 4 student visa (the government also proposes to cut back on non-graduate students) or leave the country.
The Joint Council for the Welfare of Immigrants (JCWI) and the English Community Care Association (ECCA), which represents independent care providers, initiated a judicial review against the government’s temporary cap on the grounds that the UK Border Agency (UKBA) did not follow proper parliamentary procedure when it introduced an interim cap.
In recognition of the high public interest in the issue, the claim for judicial review was considered by a Lord Justice of the Court of Appeal. The judicial review was heard on 16 December 2010, five months after the introduction of the cap and many refused applications later. Contrary to the usual procedure of handing down written judgment after a few weeks, the Court gave its decision on the day and decided that the cap had not been introduced according to proper procedures and was therefore unlawful. In effect, there never had been an interim cap for Tier 1 or Tier 2 migrant workers from outside the EEA.
Cynicism and government capers
Cynicism that the court’s prompt judgment would allow the government to move quickly to properly ‘lay’ the interim cap before parliament in accordance with procedures and further would fail to review those unlawfully refused applications for sponsorship, was well-founded. The UKBA has developed a modus operandi of dealing with judicial decisions it don’t like: either introduce ‘same but different’ provisions or ignore it for as long as possible in the hope another court will disagree. Indeed, this legal victory quickly rang rather hollow as by the 21 December 2010, the government had laid the changes before parliament to introduce an interim cap on Tier 1 and Tier 2 migrants,
However, the importance of this litigation should not be underestimated. Whilst JCWI have a venerable history of legal campaigning, groups of employers – like ECCA – are new to such action and their stand, however self-serving, has also served to highlight the plight of migrant care workers and the impact on those for whom they care.
UKBA press release: ‘Temporary limit on migrant workers is back up and running’
 R (Baiai and Others)  EWCA Civ 478; ZO (Somalia)  EWCA Civ 442.
The Institute of Race Relations is precluded from expressing a corporate view: any opinions expressed are therefore those of the authors.
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