September marks the start of what is likely to be a busy few months in the world of immigration law, with the eagerly awaited Migration Advisory Committee’s report into the impact of EU workers on the UK economy likely to be released in the next few weeks and the long overdue immigration white paper following in October.

First and foremost, we have the MAC’s report on overseas students to digest. The higher education sector had hopes that the MAC would listen to their repeated calls to make the UK more competitive in attracting lucrative overseas students by taking the numbers of overseas students out of the net migration figures and re-introducing a post study work visa. The release of the report last week was met with disappointment when it soon emerged that the MAC had failed to recommend either of them.

There are though some interesting ideas in the report. The MAC fears that a post study work visa would only serve to increase the number of graduates in low skilled roles. It has instead focused on changes to the current immigration rules that would make it easier for graduates to work post qualification. They believe this would deliver the same benefits as a standalone post study visa but avoid the risk that students would only choose to study in the UK as a means of getting free access to work.

Firstly, the report proposes an extension to the period students are allowed to remain in the UK after they have completed their degree to allow further time to find work; PHD students would be given a year and Masters students a further six months to look for jobs. Secondly the MAC has also suggested some bold changes to Tier 2 to improve graduates’ access to this visa route if they are lucky enough to find a job offer from an employer willing to sponsor them.

The Tier 4 to Tier 2 ‘switch’

In an effort to promote international graduate employment, students in the UK currently have easier access to Tier 2 General, the work permit category, by way of the Tier 4 to Tier 2 ‘switch’. A Tier 4 General visa holder who has completed a UK Bachelors or Masters degree, a postgraduate course in education or 12 months study towards a PHD can ‘switch’ their visa status from Tier 4 General to Tier 2 General.

This has significant benefits for both the applicant and the employer. The applicant does not have to return to their home country and can make the visa application from within the UK once they have completed their course. The employer is exempt from having to run the ‘resident labour market test’ which requires them to advertise the role for 28 days to ensure there are no workers who are ‘settled’ in the UK who are suitable for the role. They can also pay the graduate less than an average Tier 2 applicant as they only need meet the lower new entrant salary threshold for Tier 2, currently set at £20,800, provided the visa is for 3 years or less. The employer also does not have to pay the immigration skills charge set at £1000 per year of the visa.

Problems arise though as the Tier 4 General visa applicant must have had continual Tier 4 leave since they completed their degree in order to switch into Tier 2 General. This causes havoc for industries who recruit graduates many months or even years before they are due to start work. For instance, law students will often be offered a training contract during their graduate degree with a start date 2 or 3 years in advance to allow time for them to graduate and complete the Legal Practice Course. Students will often return home for extended periods between courses breaking the continuity of their Tier 4 leave since they completed their degree. This means that the ‘switch’ and its various benefits are not available to them making it much harder for the employer to sponsor them and limiting the jobs which graduates can access.

The MAC has come up with some proposals to remedy this. Firstly they have suggested that a student should be able to make the Tier 4 to Tier 2 switch as soon as the job offer is given to provide some certainty for the employer and applicant that the job is locked down without having to wait until course completion.

Secondly, they are also suggesting undergraduates are given an extended window to look for work beyond the current four extra months of Tier 4 leave they are given after the end of their studies. Namely, a period of up to two years to allow them to find a job and still be able to apply for a Tier 2 General visa and rely on the ‘switch’ exemptions. This would mean that a student who has returned home but finds an offer of a job back in the UK, will be able to apply for a Tier 2 visa from abroad on the same basis as an in country switch.

Will this work?

As with all MAC reports we will have to wait to see if the Government adopts these changes. A few issues spring to mind though from a legal perspective. Firstly if you allow students to switch into Tier 2 some considerable time before their start dates, they may find that the six year limit on the amount of time they can spend in the UK as a Tier 2 General visa holder comes around too quickly to enable them to reach the salary threshold they need to apply for indefinite leave to remain. Further we would need to understand how exactly the absence criteria for ILR would be applied during this time as a Tier 2 General migrant can only be absent for a reason which is consistent with the basis of their stay in the UK or for serious or compelling reasons. If a student has not started working, it is difficult to see how this requirement would be met.

If the aim of the exercise is to retain the best of the crop of international graduate emerging from our universities, then tinkering with Tier 2 will ensure that it is only the most highly skilled and paid who will benefit from the changes. Tier 2 requires an applicant to have a job offer from an employer who has the capacity and the courage to take on the duties of being a sponsor licence holder. This automatically limits the field of potential employers and jobs for a graduate.

Graduates who are saddled with huge debts often have to take the first job which allows them to start making ends meet. A standalone post study visa category enables graduates to work with any employer, allowing them time to slowly gain the skills they require to enter more highly skilled work further along in their career. By discounting this as an option, the MAC are being short sighted in assuming that graduates in low skilled work have nothing to offer in the future. Allowing graduates the opportunity to apply from abroad years after they have left the country also carries with it a whiff of arrogance that their heads would not have already been turned by jobs offered in other countries, where the economic outlook is more stable. In these uncertain times, assuming the UK remains a student’s first choice cannot be taken for granted.