Pinoys to contest UK rules on migrant carers

INQUIRER.net
Posted date: August 31, 2009

MANILA, Philippines — Are overseas migrant workers eligible to apply for permanent settlement after five years of continued stay in the United Kingdom even if there are gaps in their employment and stay in the UK due to changing UK migration policies?
Yes, according to an alliance of Filipino migrant organizations in the UK. And Kanlungan is set “to file a legal challenge at the British High Court to obtain a definitive ruling on the issue.”

In a statement issued from the UK, Kanlungan chairman Benny Clutario said the UK Border Agency which is in charge of migration issues has been turning down such applications from thousands of overseas senior care workers who have gaps in their visas.

Clutario pointed out that the UK Border Agency should not be refusing these applications because the gaps were a direct result of retrospective changes in immigration rules between 2006 and 2008, and not because of any violation of immigration laws by migrant workers.

He said his organization is seeking a judicial review (a type of court proceeding in the UK judicial system in which a judge reviews the lawfulness of a decision or action made by a public body) on the issue.

"When migrants lose their visas, this does not automatically result in all these workers leaving the country. It almost certainly translates into a significant number of workers staying in the UK as undocumented migrants. Sadly, they become undocumented not by choice but because of misguided policies and mismanaged immigration," he said.

Kanlungan thus called on senior care workers who have experienced gaps in their visas due to changes in immigration rules to come forward and provide evidence.

"The more senior carers involved in this legal action, the better the chance for success," Clutario stressed.

Kanlungan member-organizations include Bahay Kubo Housing Association, Lingap, Philippine Theatre UK, Kadamay UK, and Migrante UK.

The changing UK rules

In 2006, the UK government changed the requirement for applying for permanent settlement from four years to five years, and applied this retrospectively to all migrants. Thousands of senior care workers were caught by this change and had to re-apply for an extension of their work permit and visa for at least another year.

In 2007, the UK government imposed new requirements for renewals of work permits and visas for senior care workers, requiring them to have skills and qualifications at National Vocational Qualification (NVQ) Level 3 which is roughly equivalent to a university degree and a minimum salary of 7.02 pounds per hour. As a result, over 3,500 work permits of senior care workers were not renewed.

The new rules were challenged by Kanlungan and other migrant organizations and trade unions in Britain. So in 2008, the UK Border Agency issued transitional measures. The following concessions were granted:

* Those senior care workers who had their work permits approved prior to December 31, 2003, and who remained with the same employer for their existing work permit, would be granted an exceptional extension for a maximum of 12 months, provided the permit holder had not left the United Kingdom. The skills criteria and the required salary of 7.02 pounds would be waived.

* Those who had arrived in the UK after December 31, 2003 (and who had not left the UK), would only have the skills criteria waived. Work permit renewals with the same employer or with a new employer would still require that the employer pay them 7.02 pounds per hour.

In March 2008, the government gave further concessions for those who had lost their jobs, their work permits, and their leave to remain due to the rule changes. They issued guidelines allowing them to apply for a new work permit, with employers paying 7.02 pounds per hour, as long as the application was made within six months of the date they lost their right to remain in the UK.

Many senior care workers, with gaps in their visas within their five years of stay in the UK, have tried to apply for indefinite leave to remain. However, they have been refused by the Home Office and were told that they should fill the gaps in their visas and re-apply when these gaps have been completed. Then again, there are some who until now have not managed to get new employers willing to pay them 7.02 pounds an hour and who are therefore, now here as undocumented migrants.