Sir James Dyson has told Sky News that Britain’s immigration rules are “sheer madness” and counter-productive to the country’s economic ambitions.  In his view, the UK is not doing enough to make non-EU undergraduates studying science and engineering feel welcome and they should be allowed to stay in Britain on qualification rather than have to go home to compete with the UK instead.  

The Home Office has now responded:  

“There is no limit on the number of graduates who can stay in the UK, as long as they get a graduate level job paying a graduate level salary…..Students are given four months in the UK after the end of their course to find a job. This is plenty of time for scientists and engineers whose skills are in high demand…….We changed the rules to stop the widespread abuse of the student system – where low quality students would take low skilled jobs just to stay in the country….What we have done instead is build a system that works in the national interest – attracting and retaining talented students and workers to ensure Britain succeeds in the global race.”  

But with respect, this response is only half the story.  Sir James is right, current immigration policy is preventing us from retaining much-needed skills that have been acquired and developed in this country, and here’s why:  

The only real option for non-EU students after completing a recognised UK degree is a visa category known as Tier 2 (General). Other options such as Tier 1 Graduate Entrepreneur or Exceptional Talent are not sufficiently accessible to most students.   Whilst switching immigration status from student to Tier 2 (General) is made easier by the fact that the employer is not required to advertise the role in question to show that no suitable resident worker can be identified, this route is not nearly as straightforward as the Home Office is making out.   

In order to get a Tier 2 (General) visa, a non-EU student who has completed a recognised UK degree must first find an employer with a Tier 2 sponsor licence who is willing to commit to sponsoring him.  Whilst most of the UK’s larger (and many smaller) employers will already have such a licence, the onerous administrative and compliance duties deter many businesses from the sponsorship process and talented non-EU students will be turned away as a result.     

It is the case that non-EU students in the UK have around 4 months following completion of their degree during which they can work until their student visas expire but these graduates cannot fill a permanent vacancy prior to being sponsored under Tier 2 (and, in this case, ‘permanent’ is determined by the nature of the work being carried out rather than the type of employment contract issued).  In practice, this means they cannot start work during this 4 month window in an engineering (or other skilled) role which is intended to be permanent in the hope of their employer agreeing to sponsor them after a trial period in that role; they must be sponsored under Tier 2 from the outset.     But in many cases, employers will not be willing to invest in the Tier 2 process at such an early stage in the employment relationship and, faced with uncertain job prospects as a result, highly skilled non-EU students will simply choose to work elsewhere when they have finished their UK degrees.    Perhaps the Government is right to say that this is technically their choice, but it is pretty hard to criticise them for making it in those circumstances.   

The solution to the issue raised by Sir James Dyson is very simple – reinstate two visa routes which are now closed to new applicants – Tier 1 (General) and Tier 1 (Post Study Work).  These categories enabled the highly skilled and those with a recognised UK degree to obtain work visas in their own right without an employing sponsor.  And if the Home Office’s concern that ‘low quality students would take low skilled jobs just to stay in the country’ is justified, then the rules for these Tier 1 visas could easily be adjusted to ensure that they could only be used for working in skilled roles.  But the Home Office has made it very clear it has no plans to re-instate these visas. At a recent policy update, Philippa Rouse, Head of Customer Strategy and Insight at UK Visas and Immigration, suggested that non-EU students “have plenty of options” for being able to work in the UK following completion of their studies.  In reality, this just isn’t correct for the reasons set out above.    

Unfortunately for the UK, the USA, Australia and Canada have all found it possible to offer post-study work visas of at least 12 months without the need for a sponsoring employer.  Given these options, it’s no wonder that UK is now far less attractive for talented non-EU students considering where to complete a degree and join the world of work (see also our 3rd February post on this topic http://www.employmentlawworldview.com/is-britain-kicking-out-bright-foreigners/.