The interim cap- an update

The House of Lords Merits of Statutory Instruments Committee has today published its report on the interim cap for the Points Based System.

The interim cap is due to come into force on 19 July 2010 and last until March 2011. After this, the Government proposes to introduce, following consultation, the final system that is to apply.

As the Statement of Changes to the Immigration Rules is subject to the ‘negative resolution procedure’ in Parliament,  the rule changes are not automatically debated.  The interim cap has not yet therefore been debated though  it may be in future if an Early Day Motion is tabled and gathers enough support to secure a debate.

So far as the Committee’s conclusions on potential issues for Parliament to take up, they helpfully address the two issues JCWI focused on it its initial and supplementary submission.   

JCWI takes the view that  (aside from being generally pretty shoddy in content)  the equality impact assessment  the Government undertook does not comply with statutory obligations, and that the proposed mode of implementation of the system raises legal concerns. The Committee accepts that these are issues that theHouse might wish to consider.

On the equality issue the Committee notes:

Equality impact

11. The Equality Impact Assessment identifies no adverse consequences as a result of these changes (IA page 15). However, the Committee notes the view of the Joint Council of Welfare of Immigrants (JCWI) that the Equality Impact Assessment is flawed and does not comply with basic statutory obligations in relation to discrimination/promotion of equality (pp 30-32). This view is explained in detail in their written evidence….

In subsequent written evidence to the Committee, the Minister repeated that the Government sees no adverse equality consequences from the interim limit (Supplementary written evidence). The House may wish to satisfy itself that this is a fair assessment.”

On the means of implementing the Committee concludes:

Parliamentary Procedure

14. An important feature of these changes is that the actual limit imposed on applications for Tier 1 (General) applications is not in the Statement. The EM says that the limit to be applied to the Tier 1 (General) category will be published separately by the UKBA on their website (EM paragraph 7.5). This matters because the Statement is subject to formal Parliamentary scrutiny, but guidance issued by UKBA is not. UKBA has explained that the limit itself is to be set out in guidance to provide UKBA with flexibility in administering the limit from month to month (see Appendix 1). Shortly before the meeting with the Minister JCWI submitted details of a recent judgment dealing with substantive changes to immigration policy, which were not subject to formal Parliamentary scrutiny. The Minister said that she was aware of recent judgments on the issue, and that the Government has as a result decided to alter the way in which the Tier 2 changes are to be implemented, but not to make any further alterations in respect of the Tier 1 changes (Q 7). However, the actual limit imposed for Tier 1 (General) would seem to be an important matter, and the House may wish to consider further the Government’s reasoning for not putting the proposed Tier 1 (General) limit in the Rules themselves. For instance, the House may wish to examine whether under the proposed system Ministers would be able, if they wished, to set the Tier 1 (General) limit at zero, through an administrative act subject to no Parliamentary control. The House might also wish to consider whether the Government’s desire for flexibility could be met by setting an overall limit in the Rules themselves, with the UKBA then given the ability to vary the month-by-month quotas in order to provide the desired flexibility.”

You can download JCWI’s initial submission, its supplementary submission, and a copy of the House of Lords report from our home page under ‘what’s new’ available at We will be responding to the consultation on the ultimate cap.

About jcwi

Joint Council for the Welfare of Immigrants is a key campaigning voice in the field of immigration, asylum and nationality law and policy. It is completely independent from government funding, remaining entirely free from government influence. View all posts by jcwi

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