GD No: 65/ 10

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tsleof Man Government Rei I ty s EI I a¡t Van tti tt

A Report by the Migration Policy Group

December 2010 Price Band: Price: 82.30

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Contents 1. Introduction...... ,...... 8 2, Changes to UK Immigration Rules ...,... 10 3. Reform of Control of Employment legislation...... ,, ...... ,.. 13 4. Migration data...... 15 5. Related tasks not charged to the Committee ,...... 15 Page 6 of 16 A Repoft by the Migration Policy Group

To: The Hon, N.Q. Cringle, OBE MLC, President of Tynwald and the Honourable the Council and Keys in Tynwald assembled.

In presenting this first repoft of the Migration Policy Group I am conscious of the three main priorities which were presented to the group. Namely, the development and implementation of an Points Based System modernisation of the Work Permit Legislation (the TSC doesn't say that)and finally, and in some ways perhaps, most impoftantly to provide a forum to co-ordinate Government's activity with regard to migration to and from the Island.

I am also conscious that my tenure as Chair of the Migration Policy Group is somewhat recent, and I would like to thank my predecessors Mr Cretney MHK and Mr Corkish MHK for their previous Chairmanship of the group.

I am pleased with the progress which has been made, and I am optimistic that the work of the Committee may have a beneficial impact, I wish in pafticular to thank the officers who have undeftaken the work.

Mrs Clare Christian BSc MLC Chairman

Page 7 of 16 1. Int¡oduction

1.1 Background At a sitting of Tynwald Couft held on 17th January 2007 it was resolved that a Select Committee of five Members be appointed with powers to take written and oral evidence to examine and review the operation and adequacy of the existing legislation available to the Isle of Man for monitoring and controlling immigration to the Island and to report back to Tynwald with recommendations. "The Repoft of the Select Committee of Tynwald on Immigration"was presented to the December 2008 sitting of Tynwald. Following an amendment by the then Minister for Trade and Industry, Tynwald agreed that: "the Repoft of the Select Committee on Immigration be received and referred to Council of Ministe¡s for consideration and that Council should report to Tynwald on each recommendation contained therein by April 2009'i A sub-group of the Council of Ministers was therefore established to consider the Report and recommendations on behalf of Council. The Council of Ministers subsequently appointed a Working Group to consider and advise upon each of the recommendations made in the original Repoft of the Tynwald Select Committee. The Report of the Working Group entitled "Report by the Council of Ministers on the Repoft of the Select Committee of Tynwald on Immigration"subsequently set out the considerations and recommendations of the Council of Ministers on the matters considered by the Select Committee. At Tynwald in April 2009 the Repoft of the Council of Ministers was accepted and the recommendations of the Tynwald Select Committee on Immigration as amended by the Council of Ministers were approved by Tynwald subject to two amendments. The recommendations, which are set out at 1.2 below, included the establishment of a new cross Departmental Migration Policy Group (MPG) charged with various tasks. Not all of the recommendations were to be implemented or overseen by this new body; some remained the responsibility of individual Depaftments. Neveftheless, because the MPG responsibilities and Depaftmental responsibilities are integrally connected, this repoft provides an update on all the recommendations.

1.2 The Recommendations The final recommendations, as approved by Tynwald, were as follows: Recommendation I That the Council of Ministers continue to progress the introduction of a Points Based System for the Isle of Man which will effect entry into the Isle of Man for those subject to immigration control coming to the Isle of Man to seek or take employment and that the System be introduced by July 2010, Recommendation 2 That the Council of Ministers: (a) establishes a Migration Poliry Group under the Chairmanship of the DTI Minister, consisting of representation from the Chief Secretary's Office, the Treasury, Depaftment of Trade and Industry and Depaftment of Health and Social Security, and others as required from time to time, to:

Page 8 of 16 (i) consider changes to UK Immigration Rules which affect the economy and make recommendations to the Council of Ministers in respect of adoption or not of those changes into the IOM Immigration Rules, (ii) consider the operation of the Points Based System in relation to employment matters, (iii) consider matters relating to work permit policy and publish a repoft which incorporates relevant matters such as the Manx Points Based system, the Control of Employment Act 1975 and the Regulations made under it, skill shoftages etc,, (iv) consider proposals made by the DTI in respect of guidelines for the issue of work permits, (v) explore the options for improving migration data including the possibility of establishing a database, (vi) repoft annually to Tynwald; and (b) task the Economic Development Committee to identify ways in which the impact of immigration on the economy can be monitored and to repoft back to Council. Recommendation 3 That the proposal to require both EEA and non EEA nationals wishing to enter the Isle of Man for employment purposes to hold a work permit granted under the Control of Employment Act 1975 and to make clear that the granting of such a work permit does not necessarily lead to settlement, is not workable and should not be progressed. Recommendation 4 That as paft of its review of the Control of Employment Regulations 1993, the Depaftment of Trade and Industry conclude its consideration of the Select Committee's recommendations that the Depaftment: (¡) require the applicant for a work permit to have a working knowledge of the English language to ensure the health and safety of the individual, work colleagues and others, and (i¡) take account of the ability of the applicant's dependants to speak English, and that the Department also give consideration in advance of its planned consultation on the Control of Employment Act 1975, to the Select Committeet recommendations that it: (¡) allow for applications to be made to the Minister for Trade and Industry for an "indefinite" work permit (redefined as a 5 or 10 year work permit) in exceptional circumstances, (ii) otherwise restrict the granting of a work permit, or combination of approval and renewals to an aggregate of one year less than the qualifying period for Isle of Man worker status (currently 5 years), (iii) allow for applications to be made to the Minister for Trade and Industry, or Body or person appointed by him, for an extension of a work permit beyond the qualifying period, such application to be made no less than one year before the qualifying period for Isle of Man worker status, consideration of which will take account of the

Page 9 of 16 personal circumstances of the individual, their skill level and the need for retention of those skills and contribution to the economy, and (iv) take note of relevant comments contained within the Tynwald Select Committee Repoft, Recommendation 5 That the Council of Ministers make such amendments to the Immigration Rules as deemed necessary to establish a Manx Points Based System. Recommendation 6 That the review of Child Benefit payments undeftaken by the Depaftment of Health and Social Security be conducted on a regular basis. Recommendation 7 That the Department of Home Affairs should vigorously pursue the matter of access to criminal records, both in the and Europe, and repoft to Tynwald by July 2009.

In 2010 the Government was restructured and most responsibilities of the Depaftment of Trade and Industry passed to a new Depaftment of Economic Development, In addition, the Department of Health and Social Security (DHSS) was split into two Departments, the Depaftment of Health and the Depaftment of Social Care, with the latter assuming responsibility for the former DHSS responsibilities in respect of the recommendations.

1 .3 Membership of the Working Grcup The MPG was initially chaired by the former Minister of the Depaftment of Trade and Industry Hon. David Cretney MHK. Following restructuring of Government the MPG was chaired firstly by Mr Geoff Corkish MHK and subsequently by Mrs Christian MLC acting under powers delegated by the Minister, Officers from the following Depaftments attended meetings: . Depaftment of Trade and Industry / Department of Economic Development. . Chief Secretary's Offìce (External Relations Division / Immigration) o Treasuty, Economic Affairs Division . Depaftment of Health and Social Security (DHSS) / the Depaftment of Health and the Depaftment of Social Care The MPG first convened on the 23'd October 2009 and met on three further occasions prior to the publication of this repoft. 2. Changes to UK Immigration Rules

2.1 Relevant recommendations Relevant recommendations are 1, 2 (a) (1), and 5,

2.2 Overuiew of progress to intrcduce the Points Based System Much progress has been made in replacing the existing routes for nationals from outside the European Economic Area with that of a new Points Based System (PBS) This system, which is in operation in the UK, seeks to control immigration by

Page 10 of16 requiring all applicants in a number of employment categories to have the correct number of points before Entry Clearance or Leave to Remain can be granted. The Isle of Man system corresponds closely with the UK system which consists of 5 different Tiers, The Points Based system is made under changes to the Immigration Rules, The first elements of the Points Based System (PBS) were introduced on 1st December 2009 with additional elements being added in July 2010 Tier 1 of the PBS replaced the Highly Skilled Migrant Programme, Business Persons and Investors with Tier 1 (General), Tier 1 (Entrepreneur) and Ter 1 (Investor) respectively, There is no requirement for sponsorship or a job offer prior to applying for the visa but the applicant must gain sufficient points. Tier 7 (General) is for Highly Skilled Workers who have sufficient educational qualifications, experience and earning potential to gain 75 points, plus 10 points for English language ability and 10 points for ability to maintain themselves initially. Leave to Enter will be granted for an initial period of three years at the end of which an application can be made for a fufther two year period when they will have to show that they have put their skills to use in the island and earned suffìcient to again acquire 75 points. At the end of the five year period they can apply for Indefinite Leave to Remain (Settlement). Tier 7 (Entrcprcneur)is for persons wishing to set up in business in the Isle of Man and who show they have sufficient funds, held in a regulated institution and available to them in the Isle of Man to gain 75 points, plus 10 points for English language and 10 points for maintenance. Leave to Enter will be granted for an initial period of three years at the end of which an application can be made for a fufther two year period when they will have to show that they have set up a business and employed a ceftain number of local workers which will be the means of gaining 75 points again. At the end of the five year period they can apply for Indefinite Leave to Remain (Settlement).

Tier 7 (fnvestor) is for persons who gain75 points by having at least f 1,000,000 available to them in a regulated financial institution in the Isle of Man, There is no requirement for English language ability or maintenance, Leave to Enter will be granted for an initial period of three years at the end of which an application can be made for a fufther two year period when they will have to show that they have invested at least f750,000 in the Isle of Man and therefore gaining the requisite points, At the end of the five year period they can apply for Indefinite Leave to Remain (Settlement),

Tier 7 (Post Stttdy Work) is for persons who have studied in the Isle of Man, to degree level, who can then apply to stay and work, for a limited time. A local sponsor is not required and points are gained by the applicant having studied to degree level, both in the Isle of Man and within the previous 12 months. Leave to enter or remain is granted for a2 year period which is not extendable and does not lead to settlement. Tier 2 (Skilled Workerc) replaces the Overseas Labour Scheme. The Department of Economic Development (DED) has developed the guidance to allow local employers to register as Licensed Sponsors under Tter 2 and to allow the Licensed Sponsor to issue Ceftificates of Sponsorship (CoS) to skilled workers from overseas. These changes introduced the requirements for entry clearance and leave to remain

Page tl of16 under Tier 2 and points are gained by having a CoS from a licensed sponsor, qualifications and prospective salary, New applicants are also required to gain points by having an English language qualification and sufficient funds to suppoft themselves on first arrival. DED has had to devise processes for calculating points and issuing licenses to employers. It is estimated that 200 employers will become licensed under tier 2 and that 300 COSs will be issued annually, Tier 4 (studenE) is for persons studying in the Isle of Man and guidance has been developed by the Immigration Office to allow Isle of Man education providers (the IOM College, the IOM Business School and private schools) to apply to register as Licensed Sponsors in respect of Tìer 4 and to issue Confirmation of Acceptance for Studies (CaS) to overseas students. These changes introduce the requirements for entry clearance and leave to remain in this category, Points are gained by having a CaS, funding and ability to speak the English language. This replaces the previous requirements for students. Tíer 5 (Youth Mobility) replaces the'Working Holidaymaker'scheme which had been subject to some abuse. It is for young people from a limited number of named countries to come here, for a limited time, to work and experience the different culture etc. At present only young people from Australia, Canada, New Zealand and Japan can take paft in the scheme; this is because only these countries have reciprocal schemes for young British Citizens. Youth Mobility is the only the element of Ïer 5 which does not require the involvement of an Isle of Man sponsor. Leave to enter is limited to two years and does not lead to settlement. Tier 5 (Temporary Workerc) Guidance for this tier has been developed by the Department of Economic Development to allow a register of Licensed Sponsors to be compiled, Sponsors can be, for instance, a spofting body, a religious or charitable organisation or a Government approved scheme. Points are gained by having a Certifìcate of Sponsorship and funds, Leave to enter or remain is granted for the period of engagement and is extendable to undeftake fufther engagements but does not lead to settlement. These changes to the Immigration Rules also included the requirements for the paftners and children of points based system migrants. The various tiers wene implemented within the timescale set by Tynwald See lecommendation 1 above.

2.3 Overuiew of additional changes to the UK Rules Other changes to the UK Immigration Rules have been as follows:

a changes to the Rules for visitors, in particular to clarifli the activities which can be undeftaken by'Business Visitors'and to introduce other categories such as'sports Visitor'which will be relevant for competitors, coaches and officials for such events as the Commonwealth Youth Games,

a Ending of Retired Persons of Independent Means etc. This route allowed persons with strong links to the Isle of Man, for instance having family already resident here, and provided they could demonstrate access to a set level of annual income, to reside in the Isle of Man. Historically there has only ever been a handful of persons in this category in the Isle of Man and, as the United Kingdom (UK) abolished the route it was appropriate for the Isle of Man to do the same. After five years Indefinite Leave to Remain could be gained which allowed access to all public funds and, as most persons in this category were elderly, healthcare

Page 12 of 16 could be a s¡gnificant drain on public resources, Persons who are already here are not affected by the change which was also made in July 2009 . Specification of the activities which Business Visitors can undeftake. . Deletion of provisions for overseas doctors and dentists to undeftake their Foundation Training in the Isle of Man, This was due to the UK having introduced Tier 4 (Students) of PBS so that the Isle of Man could not, independently, allow overseas doctors in to commence training which they would not be allowed to complete in the UK. . Introducing a change to make it clear that any public funds payable as the result of a person's presence in the Isle of Man cannot be relied upon to satisff the 'maintenance and accommodation'requirements for an application for Entry Clearance. This is to ensure that a person granted Entry Clearance in any category does not immediately become a drain on the economy, . Other changes which do not directly affect the economy include the raising of the age of marriage applicants; extending the duration of spouse visas; introducing the power to remove, administratively some classes of person who had previously been liable to depoftation; deletion of the routes replaced by the PBS routes introduced so far; and some changes to the Immigration Rules relating to EEA nationals from Romania and Bulgarra. . The introduction of a licensing regime for sponsors under Tiers 2, 4 and 5 also allow for greater scrutiny of compliance, and the administrative conclusion of any licences in the event of non-compliance. 3 Reform of Cont¡ol of Employment legislation

3.1 Relevant recommendations Relevant recommendations are as at (2) (a) (iii) and (iv)

3.2 Recent DTI I DED initiatives In December 2008 the then DTI published a consultation document entitled "Review of the Control of Employment Regulations 1993"which declared an intention to modernise both the Control of Employment Act 1975 and the Control of Employment Regulations 1993 made under it. The Depaftment planned initially to review the existing Regulations with the aim of bringing forward new Regulations in 2009 and then to review the Act itself, This was on the grounds that: . new Regulations could be introduced much more quickly than new primary legislation, thus speeding delivery of improvements; and . a significant number of reforms could be achieved through the alterations to the secondary legislation, Consultees were invited to comment on a number of possible changes. These comprised a number of possible changes to the principal Regulations made under the Act, while in addition there were also proposals to create a new series of exemptions from the legislation. (Note that while the consultation document was entitled Review of the Control of Employment Regulations 1993 any new exemptions have to be created by Order, a different form of secondary legislation, and not by Regulations). Thus two separate instruments are technically required to modernise the secondary legislation.

Page 13 of16 It is of note that because the Department was aware of the Select Committee on Immigration's interest in making the ability to speak the English language a factor in the issue of a work permit (the only recommendation of the Select Committee that could be dealt with by way of Regulations as opposed to the primary legislation) the oppoftunity was taken to seek consultees'views regarding the broad matter. Following the expiry of the consultation process the Department reviewed comments received from consultees and considered the possible contents of new Regulations and a new exemption order. However, following receipt of additional legal advice it became apparent that the enabling powers in the primary legislation would impose some significant constraints on the contents of new Regulations. Therefore the Department took the decision to proceed with the Exemption Order only and to defer the making of new Regulations until after the primary legislation has been revised and the appropriate regulation making powers had been strengthened.

3.3 The Control of Employment (Exemptions) Order 2009 The Department published its proposals for a series of exemptions in November 2009 and in December 2009 the Control of Employment (Exemptions) Order 2009 was approved unanimously by Tynwald. The Order was intended to make the Island an easier place to do business, whilst at the same time continuing to protect the fundamental interests of Isle of Man Workers, The broad objectives of the Order were: to give employers a reasonable amount of flexibility regarding use of temporary and intermittent workers; to remove a requirement for permits for employments that do not impact on IOM Workers at all; and to begin to align the legislation more closely to the needs of the economy while continuing to protect the overall interests of IOM Workers, Paft 1 of the Schedule to the order exempted 13 separate categories of temporary and intermittent employment while Paft 2 of the Order exempted 3 fufther miscellaneous categories of employment, The Depaftment estimated that in total the order would exempt approximately 2,500 - 3,000 employments each year from the requirement to have a work permit, the great majority of them in two categories; these were employment for up to 10 days in a year and employment by an international group for up to 48 days a year' 3.4 Plans for a new Bill and new Regulations At the time this report was in preparation DED was about to to release a consultation document containing proposals for a new Control of Employment Bill which will replace the Control of Employment Act 1975 and for new Regulations to replace those made in 1993. Amongst other things the consultation document seeks views on all of the proposals of the Select Committee on Immigration. The 2011 Report of the MPG will report on consultees'views and progress to modernise the legislation.

3.5 Departmental guidelines / guidance material In addition to legislative changes the then DTI made changes to the guidelines it issues to the Work Permit Committee. New applications for permits in sectors where IOM Workers are plentiful are being scrutinised more closely. In addition, steps were taken to ensure the Work Permit Committee is given up to date information on economic trends. The MPG was advised of these changes.

Page 14 of 16 DTI/DED also revised its main guidance booklet on three occasions in 2009/10 in order to keep employers and workers up to date with both changes in legislation and policy.

4 Migration data Recommendation 2 (a) (v) recommended that the MPG "explore the options for improving migration data including the possibility of establishing a database". Specific initiatives commenced to date which are of relevance are as follows: . Restructuring of Government will result in the integration of Income Tax and NI collection. The end result of these changes should be better provision of information on people coming into and leaving the Island, . The Depaftment of Economic Development is also taking forward work on NI issues relating to work permits. . The introduction of Tier 2 of the Points Based System (PBS) has lead to a mini database of workers from outside the European Economic Area whilst in addition immigration will have similar information in respect of other PBS tiers. As regards the suggestion of a database The Committee will look to progress this matter and to detail progress in its next repoft. 5 Related tasks not charged to the Committee

5.1 Economic Development Committee In recommendation 2 (b) the Economic Development Committee to identiñ¡ ways in which the impact of immigration on the economy can be monitored and to repoft back to Council, The work of the Economic Development Committee has now been passed to the new Depaftment of Economic Development, and such suitable measures are being identified.

5.2 DSC Child Benefit Recommendation (6) was that "fáe review of Child Benefit payments undertaken by the Depaftment of Health and Social Security be conducted on a regular basis'i Section 8.2 of the Tynwald Select Committee repoft looked at the issue of migrants' access to social security benefits, Page 57 of the repoft revealed that the DHSS undeftook a check to ensure that there was a correlation between Child Benefit payments and school registrations and that some cases of overpayment where a child was no longer on the Island had been revealed. The DHSS has confirmed to the Working Group that it has made a commitment to undeftaking a review of Child Benefit payments on a regular basis. The most recent suruey conducted was in 2009 revealed a handful of anomalies but no widespread fraud. A fufther suruey is planned,

5.3 DHA criminal records Recommendation 7 was that "the Depaftment of Home Affairs should vigorously pursue the matter of access to criminal records, both in the United Kingdom and Europe, and repoft to Tynwald by July 2009."

Page 15 of 16 The current situation is that the continues to have access to national criminal records through the . The Constabulary also has access to information on convictions relating to ceftain European countries through the Criminal Records Office (ACRO). The Depaftment of Home Affairs and the Isle of Man Constabulary are continuing to work closely with the Ministry of Justice, the UK Criminal Records Bureau, Disclosure , Access , the Channel Islands and ACRO to secure access to criminal record data sources from European and other jurisdictions worldwide. Following a statement by the Minister of Home Affairs to Tynwald in January 2010 about this matter the Minister made a fufther statement on 13th July 2010 on progress being made by the Depaftment in response to the Select Committee's recommendation, the following being an extract from the speech: The Isle of Man Constabulary continues to have access to national criminal records, through the Police national computer, and also has access to some European conviction information through the Cnminal Records Office. Comprehensive access to European and worldwide convidion information remaÌns the target and a priority for alljurisdictions. In the meantime, the Island's position continues to mirror that of the Ufi Jersey and Guernsey anQ whilst effotts are continuing to be made in these matters, progress remains slow due to the complexity of the issues involved. In Februaty 201Q following UK legislative changes introduced by the Safeguarding Vulnerable Groups Act 2006, this Hon. Couft approved a motion to change the current vetting arrangemenb on the Island. These changes primarily are aimed at providing a professional standard of vetting linkd to safeguarding vulnerable people on the Island and formalised a relationship between the Department and the Criminal Records Bureau in the UK. Paft of the impact assessment and rationale behind this was the ability for the Island to link into the Criminal Records Bureaub research and development work to access European and worldwide conviction information. The Depaftment is fully aware of the changes to the UK Vetting and Barring Scheme, announcd by the UK Home Secretary Theresa May, and, Ìn this connection, until the remodelling of the UK Vetting and Baring Scheme has taken placq aspects of the Scheme which are already in place will remain and no further elemenß of the Scheme will þe introduced. I hope Hon. Members will appreciate that this matter is being addressed but improvements in access will take time to deliver.

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