Immigration Caps - Aston Brooke Solicitors

Challenge initiated to issue Tier 2 visas after Immigration Cap deemed “unlawful” by a landmark decision by the High Court

20 February 2011 On the 17th December 2010 the High Court made a landmark decision where it was declared that the interim limits set by the Secretary of State were unlawful. The judicial review was being heard by Lord Justice Sullivan and Mr Justice Burton.

They both agreed that the evidence placed before them overwhelmingly showed that the Secretary of State’s action was considered “unlawful”. The legal team representing English Community Care Association (ECCA) in the legal challenge were Directors Kashif Majeed and Raman Purewal of Aston Brooke Solicitors. The legal team specializes in judicial review cases and their forte is within the remit of immigration law and practice and to seek justice not just for employers in the social care sector but also for overseas migrants.

It was expected that the Government would take swift steps to correct the errors that were pointed out by the High Court judges. On the 22nd December 2010 the Government did exactly that. The Secretary of State laid before Parliament the correct procedure and proposals for which she was heavily criticized. On this occasion, the introduction of the interim limits was subject to proper Parliamentary scrutiny and was legally implemented from the 22nd December 2010.

Therefore, it was accepted that there had been no lawful limit between the 19th July 2010 and 21st December 2010. As a result, Aston Brooke Solicitors have made further representations to the UK Border Agency fighting for justice for sponsored employers in the care sector.

Aston Brooke are arguing that the certificate of sponsorships removed under the unlawful limit i.e. between 19th July 2010 and 20th December 2010 (totaling over 65,000) should be re-instated to those employers. The legal foundation for the representations revolves around the fact that the certificates were removed from sponsors under an illegal limit and any applications made during that period for an increase in allocation which were refused should also be granted.

It would be unfair and in some respects irrational if the UK Border Agency refused to reinstate the certificates of sponsorships. Many sponsored care home providers have informed Aston Brooke that contrary to Government belief the position of senior skilled carer cannot be recruited from within the EU.

Moreover, the Migration Advisory Committee (MAC) has accepted this and the senior skilled carer position remains on the shortage occupation list (albeit that this is currently under review). Under the current scheme, sponsored employers have to complete a COS (AR) form to be submitted to the UKBA detailing the number of certificates required for the post of senior carer.

In December 2010, the UKBA stated that in order to be allocated a certificate of sponsorship employers had to pay £20,000 and above. In January 2011, this figure increased to £28,000 and in February 2011 to a very unrealistic £32,000. However, under the challenge initiated by Aston Brooke once the certificates are reinstated to sponsors which had them removed under the unlawful limit they will only have to adhere to the £7.80 per hour requirement and not the current pay scale under the interim limit.

Aston Brooke have urged all sponsored employers whose certificates of sponsorships have been removed under the unlawful limit to contact them in order to initiate the process to have them included in their representations. All overseas Tier 4 migrants and student visa holders who are mostly affected by this drastic change will need to encourage their employers to join the challenge.

Aston Brooke Victory Legal Challenge: Home Secretary’s Immigration Cap deemed “unlawful” by a landmark decision by the High Court

16 December 2010

The High Court has today made a landmark decision and has declared that the interim limits set by the Secretary of State are unlawful. The High Court came to the conclusion that she failed in her duty to put into practice what she had initially set before Parliament in relation to the publication of the interim limits and the accompanying mechanism and formula to calculate the certificate of sponsorships (CoS) for sponsors.

The judicial review was being heard by Lord Justice Sullivan and Mr Justice Burton. They both agreed that the Secretary of State failed to lawfully publish the interim limit for Tier 1 and failed in her duty to specify in Tier 2 the number of the limit and the number of certificates of sponsorships assigned to sponsors in the rules.

Both High Court judges agreed that the evidence placed before them overwhelmingly showed that the Secretary of State’s action was considered “unlawful”. The judges based their decision on the recent House of Lords decision in Pankina.

The changes introduced were substantive and should have been laid before Parliament. The judge declared:

"In my judgment no interim limits were lawfully published or specified by the secretary of state for either Tier 1 or Tier 2... and there is not, and never has been, a limit on the number of applicants who may be admitted either under Tier 1 or the number of certificates of sponsorship that should be issued to Tier 2 sponsors."

The full judgment was read out at the High Court on Friday 17 December 2010 at 2pm in Court No.1.

The legal team representing ECCA was Hugh Southey QC, his junior Amanda Weston and Partners Kashif Majeed and Raman Purewal of Aston Brooke Solicitors. The legal team specialises in judicial review cases and their forte is within the remit of immigration law and practice. Hugh Southey QC and his junior are from Tooks chambers of famous Michael Mansfield QC who have made a specialty of taking the government to task.

The judicial review was brought by Aston Brooke Solicitors on behalf of the English Community Care Association (ECCA) which is the largest representative body for care home providers in England. Aston Brooke has been leading in their crusade to seek justice not just for employers in the social care sector but also for overseas migrants.

Mr Majeed stated that the decision was a “huge victory for the care sector which employs a large volume of overseas migrants who were subject to the limits”. He added: “I was always confident of victory and felt that it would have been a great injustice if we lost”.

Mr Purewal reiterated the level of success achieved and stated “the care sector is caring for vulnerable adults of the community and this decision means providers can maintain continuity of care”.

This flies in the face of Damien Green’s statement where he claimed that he would “rigorously defend” any legal challenge to the immigration cap and was confident that the limits were lawful.

The direct effect of the decision means that sponsored employers within the care sector (and all other sectors) should seek redress from the UK Border Agency on any refused applications for CoS’s as the refusals of CoS’s were based on an “unlawful” imposed limit. The decision will also mean that until the Secretary of State remedies the issue it will be as if there was “never a limit”.

17 December BBC News Article: Introduction of immigration cap deemed 'unlawful'

Radio 5 Live Interview with Mr Majeed: Post High Court decision

Channel 4 News: Temorary Immigration Cap Illegal

The Guardian: Immigration cap overturned by High Court Judges

The Independant: Government immigration cap ruled invalid

Yahoo News: Migrant Workers cap ruled invalid

UK CARE WORKERS COURT CASE: TOP LAWYERS TO COMMENCE BATTLE

10 December 2010

Top legal brains go head-to-head over UK Care Workers/Immigration Cap fight

The Judicial Review over the immigration cap has got two of the best legal wizards in Britain leading the fight as the English Community Care Association (ECCA) takes on the government over reducing migrants from outside the EU; making it more interesting is that they are on opposing sides in London's High Court on Wednesday 15th December for the three day hearing.

Hugh Southey QC is leading the team on behalf of ECCA and has an impressive pedigree. Taking on the government and beating them is all in a days work for him. He specialises in immigration and human rights cases as well as criminal law. Solicitors like instructing him because besides winning cases on a regular basis, a capacity for hard work and an excellent legal mind means his success rate is high and he delivers results on time.

Southey operates from Tooks Chambers, which is headed by the legendary Michael Mansfield QC, a set of chambers noted for tweaking the nose of the government on several occasions. All the flaws in the Home Office's immigration cap, and in particular the procedures behind it, will be analysed by Southey and torn to shreds.

Leading the team representing the Home Office is Jonathan Swift QC, who is very unusual in that he is also a Treasury Devil (only one of two in the country). Treasury Devils are traditionally highly competent barristers who are appointed to act for the Treasury Solicitor (the government) while retaining their independence. Becoming Queens Counsel (QC) is the pinnacle of the Bar, roughly equivalent to that of becoming a consultant in the medical profession. However, being appointed Treasury Devil normally precludes being a QC, although traditionally seen as a more prestigious appointment than that of QC.

Swift operates from 11 Kings Bench Walk Chambers which has a reputation of taking only the top level of barristers. Fomer Prime Minister Tony Blair was there, and it was founded by a former Lord Chancellor. If this were a boxing match, the odds would be extremely difficult to assess. What makes it even more interesting as a case, especially for Filipino care workers, is that the hearing is to be in front of Appeal Court judges, so that a flamboyant and theatrical presentation which might sway a jury will cut no ice.

Both legal teams are being led by top heavyweights, who know how to land killer punches. Who wins will have a dramatic effect. If ECCA win, it will throw the government's policy on the immigration cap into chaos. If the government win, Filipino care workers may never enter the UK after 2011.

Martin Green, chief executive of ECCA (above), has previously stated that most care home operators in this country prefer Filipino care workers because of their attitude. In this matter he is adamant that the government have not only got it wrong in the way they have gone about implementing the cap, especially in the way it pertains to care workers, but that full implementation of this cap would put at risk many care homes in this country.

It is unusual for a body representing employers to be fighting what on the face of it seems purely a matter on behalf of the employees, but this is considered by him to be of such a serious concern that the survival of many care homes is under threat.

Date set for the High Court battle to immigration “caps”

9 December 2010

The dramatic move comes in response to changes which, according to a torrent of criticism from the care sector piece, could have a harmful impact on the care sector if introduced in April 2011.

Permission for appeal was granted by Lord Justice Parker and the hearing date has been set for the 15th December at the Royal Courts of Justice which is due to commence at 10am. The decision from the 3 day hearing will determine whether student visa and Tier 4 holders have the opportunity to switch to a Tier 2 working visa.

The senior skilled carers who work within the social care sector have been most affected by the introduction of the limit beside the fact that the UK Border agency has amended the policy to issue the certificates of sponsorships under the addendum policy. The existing student or Tier 4 holders employed by care home owners who have been looking after the same vulnerable residents may now face the real possibility that they will never be issued a Tier 2 work visa. This will leave them with the prospective of paying thousands of pounds to a college or leave the UK.

Principal solicitor at Aston Brooke, Kashif Majeed, stated that there are currently thousands of non-EU workers in the UK, employed within almost every care home and, indeed, that more are needed to satisfy the current and future demand. He said: ‘There is a shortage of senior care sector workers in England and the government itself has recognised this, so to then stop them coming into the country is a massive contradiction.

The fact that the hearing is due to take place on the 15th December 2010 we would urge as many senior skilled carers, student and Tier 4 holders to attend to voice their support for the legal challenge and protest against the limits.

The firm has already initiated a campaign to identify as many care providers and senior skilled carers on work permits or Tier 2 visas as well as student visa holders who will be directly affected with the changes.

If you want to join the legal challenge please email on judicialreview@astonbrooke.co.uk

To read more related articles click here

ECCA granted permission to appeal against the Home Secretary immigration “caps” by the High Court

8 November 2010

The English Community Care Association (ECCA) has instructed Aston Brooke Solicitors to initiate a judicial review against proposals put forward by the Secretary of State Theresa May which could cap the number of non-EU migrants allowed to enter the UK. The dramatic move comes in response to changes which, according to a torrent of criticism from the care sector piece, could have a harmful impact on the care sector if introduced in April 2011.

ECCA believes the temporary immigration restrictions on non-EU migrants imposed by home secretary Theresa May in July are unlawful and will have a potentially "catastrophic" effect on England's care sector. About 13% of staff employed by the sector come from outside Europe.

ECCA has been granted permission for a judicial review of the policy by Lord Justice Kenneth Parker, which reduced the number of work visas issued to people from outside the EU by 5%, compared with 2009 figures. Lord Justice Parker stated that there was “a case to argue” and has indicated that the appeal must be heard before the 21st December 2010.

Kashif Majeed, principal solicitor at London-based legal firm Aston Brooke, which is acting on behalf of English Community Care Association, said:

“We have been granted permission from the High Court today to proceed with the judicial review on behalf of ECCA. I was always confident that we would get permission for the hearing to go ahead. This is a victory for the social care sector and a step closer to achieving our aims.

The legal challenge has been initiated on the grounds that the UK Border Agency did not follow proper parliamentary procedure when it introduced the interim cap on immigration earlier this year, which reduced the number of non-EU migrants allowed in the country by 5% compared to the same period last year.”

Martin Green, chief executive of the association was delighted with the result, said the restrictions had been rolled out "with complete disregard for care providers and their staffing requirements" and could disrupt continuity of care in residential homes if staff are forced to quit their jobs.

His concerns echo those raised by directors of children's services, who have called for a rethink of the immigration cap because it could exacerbate the shortage of experienced children's social workers.

Mr Majeed also said:

“Thousands of care workers could be forced to leave their jobs and the country as a result of this policy. It affects 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 will either have to enrol themselves on other courses and pay thousands of pounds in tuition fees in order to qualify for a Tier 4 student visa, which will be a complete waste of time and money, or leave the country.

There is a human rights element here too – Article 8 of the UN Convention on Human Rights which gives everybody the right to private and family life, and if overseas care workers have set up either then the decision to remove them would be tantamount to a breach of those rights. A large volume of these workers are from the Philippines, some are from India, South Africa, and other African countries.

The vulnerable elderly residents will have become accustomed to being cared for by these individual key workers, and if the workers suddenly have to leave the continuity of care will be affected and this will have a detrimental effect on their quality of life.

But the policy of allowing British jobs to be filled by British workers is based on a false premise. In the care sector, these overseas workers are not taking British people's jobs - they are doing jobs that no one else wants to do."

The association will base its appeal on the grounds that the Home Office failed to follow correct parliamentary procedures when it introduced the interim limit of 24,100 immigrants. This reduced the number of sponsorship certificates which could be issued by employers, and will remain in place until April 2011, when a permanent limit will come into effect.

Mr Majeed explained that a large number of overseas care workers working in England were from the Philippines, while others were from India, South Africa, and other African countries.

He added that the government set up the Migration Advisory Committee to identify shortage occupations, and included senior skilled carers on the list. Mr Majeed said:

"This recognised that employers could not recruit from within the EU. Therefore, for the home secretary [Theresa May] to claim that this position can be filled from within the EU contradicts her own government findings."

The judicial review is due to be heard at the High Court in the next few weeks. If you want to join the legal challenge please email on judicialreview@astonbrooke.co.uk

Legal challenge to immigration “caps”: Call for Early Day Motion in Parliament

16th October 2010

New Interim Limits: Ministers face High Court battle to immigration “caps”

26 September 2010

Aston Brooke Solicitors has been at the forefront of protecting the interests of the social care sector. This was first tested when Aston Brooke brought a judicial review against the Secretary of State’s decision to refuse all senior care work permits in 2007 leading to the deportation of hundreds of overseas migrants. Aston Brooke was successful when the Secretary of State agreed to introduce transitional measures for senior skilled carers which are still in place today under Tier 2 of the points based system.

Recently, the Home Secretary, Theresa May announced that “caps” to migration from non-EU countries will be implemented from April 2011. The number of workers entering the UK from outside Europe will be controlled by a new limit. Net migration will be scaled back to the levels of the 1990s with the effect that it will be in the tens of thousands rather than hundreds of thousands.

Details of how the final limit will be delivered will be agreed following a 12-week government consultation with businesses. In the meantime, an interim limit will be introduced and the number of work visas issued stays below 2009 levels. The results of the consultation on the permanent limit will pave the way for the government's fundamental changes on the way in which workers from outside the European Union (EU) will be chosen to come and work in the UK.

Home Secretary Theresa May said:

'This government believes that Britain can benefit from migration but not uncontrolled migration. I recognise the importance of attracting the brightest and the best to ensure strong economic growth, but unlimited migration places unacceptable pressure on public services. 'While we consult on our tough new limit it's important we have an interim measure to avoid a "closing down sale" for migrants and ensure that the number of work visas issued stays below 2009 levels. The government will also introduce measures to support British people. Alongside limits will be action to get Britain back to work and provide business with the skills they need from the resident workforce - reducing the need for migrants at the same time as we reduce their number.'

To avoid large numbers of applications between now and April next year, the government has imposed an interim limit which took effect from 19 July 2010. These interim measures include limiting the number of certificates of sponsorship that licensed employers can issue to those who wish to come to fill skilled job vacancies. This will reduce the number of people entering through Tier 2.

Aston Brooke has pointed out that there are serious implications of the implementation of the interim limits and the full limits in April 2011. The result of such limits would be a serious negative effect on the continuity of care in the social care sector and all other businesses in the UK.

It is clear that the Secretary of State has acted unlawfully, unfairly and irrationally in seeking to impose interim measures with potentially catastrophic business consequences for the care sector. The impact is disproportionately felt as the sector is reliant almost wholly on non EU skilled workers and this is before embarking on any consultation.

The Secretary of State has once again eluded to follow strict parliamentary process when implementing the interim limits. Furthermore, the announcement that the consultation is to take place after the imposition of the new criteria and its consequential effects on the care sector is insufficient to address the issue of lack of consultation.

Aston Brooke has now initiated a judicial review against the Secretary of State’s decision on behalf of the English Community Care Association (ECCA) which is the largest representative body for community care in England and working on behalf of small, medium and large providers who employ thousands of students, work permit and Tier 2 holders.

Martin Green, Chief Executive stated:

“The Home Secretary and the government have introduced policies which once again are detrimental to the social care sector and these steps have been taken with complete disregard for care providers and the invaluable staff they employ. A legal challenge once again seemed the only viable option to bring about change.”

A judicial review is a legal challenge against the Secretary of State on policy or law which adversely affects the interests of the public. The premise of the legal action is to highlight the illegality, irrationality and unfairness of the decision of the Secretary of State to introduce the limits in the UK industry. The introduction of the interim limits has already stirred a large volume of discontentment within the UK economy.

The Law Society has made a submission to the Home Office warning that its proposed limits on non-EU highly skilled migration could damage the legal sector. The submission follows concerns voiced by Liberal Democrat business secretary Vince Cable that immigration limits are damaging British industry.

The initial work has been completed and we have formally instructed Michael Mansfiled QC’s Chambers to take up the challenge. The application for Judicial Review should be heard by the High Court in October 2010.

• Are you a Tier 2 migrant or Work Permit Holder as a senior skilled carer?

• Are you a student visa holder on a NVQ course or degree course working in the social care sector?

If you are in the category above you will not have the opportunity to switch from your student visa or Tier 4 visa to a Tier 2 migrant. If you fall into the categories highlighted above you are urged to join the legal challenge. At this moment in time, the numbers of care providers and senior carers who fall into this category are dramatically increasing.

If you are affected by the changes brought under the new interim limit and are either an employer or overseas migrant and wish to join the legal challenge contact Aston Brooke Solicitors.

Student Visa and Tier 4 migrants: Register to represent your case to the UKBA in support of the legal challenge to immigration “caps”

2nd October 2010

Aston Brooke Solicitors reported last week that it has initiated a judicial review against the Secretary of State’s decision to implement interim limits on behalf of the English Community Care Association (ECCA) which is the largest representative body for community care in England and working on behalf of small, medium and large providers who employ thousands of students, work permit and Tier 2 holders.

Aston Brooke has been holding regular conferences to allow students, work permit and Tier 2 holders to attend to educate themselves on the importance of the interim limits and what this actually means in real terms for them. The implementation of the interim limits means that students and Tier 4 visa holders have virtually no chance of switching to a Tier 2 visa.

The main reason for this is that the UKBA have removed a large percentage of certificates of sponsorships from sponsors. The certificate of sponsorship is what the employer issues to a new migrant that they wish to convert from a student/ Tier 4 visa holder to a Tier 2 migrant allowing them to work full time.

The large majority of students are switching into the senior skilled carer position. Under the points-based system introduced by the last government, senior care workers were listed as a shortage occupation, enabling providers to recruit from outside Europe to fill these posts. However, the interim cap - which will be replaced by a permanent limit on annual immigration from outside Europe in April 2011 - restricts the number of senior carers who can fill posts or existing staff who can renew permits to work.

• Are you a Tier 2 migrant or Work Permit Holder as a senior skilled carer?

• Are you a student visa holder on a NVQ course or degree course working in the social care sector?

If you are in the category above you will not have the opportunity to switch from your student visa or Tier 4 visa to a Tier 2 migrant.

If you fall into the categories highlighted above you are urged to join the legal challenge.

The conference will be held at our Head Office:

Aston Brooke Solicitors 2 Gayton Road Harrow Middlesex HA1 2XU T: 0208 901 7901 F: 0208 901 4115 Email: info@astonbrooke.co.uk www.astonbrooke.co.uk

Please email on info@astonbrooke.co.uk to book your place. Please book early to avoid disappointment.

Supported by

Martin Green CEO of ECCA who is being represented by Aston Brooke will be taking the initial steps next week to rally all MPs who have expressed concern of the introduction of the interim limit which has had a detrimental effect on the social care sector. Martin Green stated:

“The introduction of the interim limits is having a massive effect on the social care sector which ultimately affects the continuity of care for our members and others in the care sector. I am calling for an early day motion in Parliament to raise increased awareness of the draconian measures implemented by the Home Secretary.”

Discontent has been raised against the interim limits across all sectors and businesses on the negative impact the limits will have for the UK economy. The aim for the early day motion is to raise the bar and bring this matter to the forefront. The Immigration Minister, Damien Green has made his position clear but the immediate effects that the interim limits have had on the social care sector clearly show that he has “a case to answer”.

The independent care sector is of fundamental importance to the whole health and social care system in this country. Without this vital sector the NHS and Local Authorities (LA’s) would not be able to function. Independent care homes and homecare providers provide the support, care and treatment necessary to ensure that many thousands of people are not admitted to hospital unnecessarily and can be discharged from acute care speedily.

For a number of years migrant workers from non EEU locations have supported the care sector in ensuring it can continue to provide the care needed for the most vulnerable of our society. Withdrawal of the ability to recruit from this source of labour could bring severe disruption to this sector resulting in home closures, and a greatly reduced level of service within those care homes that are able to withstand this significant challenge.

If you are affected by the changes brought under the new interim limit and are either an employer or overseas migrant and wish to join the legal challenge contact Aston Brooke Solicitors.