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How excited should we be about the new High Potential Individual visa?
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How excited should we be about the new High Potential Individual visa?

Since the announcement of the new High Potential Individual route as part of the UK Innovation Strategy, there’s been considerable buzz about what it will mean for graduates around the world seeking to move to the UK.

Until the new route is mapped out in a statement of changes to the Immigration Route, details are still thin on the ground, so this is mostly speculation. But here are some thoughts about how the visa might work and who might be able to get one. There are also some lessons to learn from similar routes that were introduced — and then abolished — in the not-too-distant past.

What to expect

The Home Office has stated that the High Potential route will be open to “applicants who have graduated from a top global university”. So what might that mean in practice?

The visa would be part of the Points Based Immigration System, an umbrella term for the UK’s business and study routes. The vision for these routes is simplicity and an objective, tick-box approach that, at least in theory, reduces the need for lengthy, subjective decision-making. For that reason, the definition of “top global university” will likely be determined by reference to a specific league table for global universities, such as:

A brief review of the above lists, which are dominated by universities from rich, developed countries, suggests that rankings-based eligibility would inevitably skew towards applicants from those countries or with the resources to study abroad in one of those countries.

Of course, if that is indeed how “top global university” will be defined, the breadth of eligibility also depends on where the cut-off will lie. Would it be the top 20 universities on the list? The top 50, or even 100?

The Innovation Strategy states that the government will also explore “the scope to expand eligibility to other characteristics of high potential”, though no further details have been provided so far. Historically, such characteristics have included things like:

  • High salary
  • Postgraduate degree
  • STEM degree (in science, technology, engineering or maths)
  • Age (i.e. younger migrants preferred)

Ultimately, we won’t know what the Home Office settles on until we get the statement of changes.

The good

The introduction of a new route is always good news because it offers another option for those seeking to move to the UK on a long term basis.

The route will be unsponsored. This means that a successful applicant will not be tied to a particular job, which means flexibility to change jobs or potentially even start their own business, if the rules permit self-employment. It also means fewer requirements to comply with, which is always a good thing and reduces opportunities for visa or extension refusals on technical grounds. 

Unlike the Graduate and Student routes, this category will be a route to settlement in the UK. In other words, there will be no need to switch into another category in order to get permanent residence: five years (presumably) on a High Potential visa will be enough. And unlike the Global Talent route, people won’t have to go through the cumbersome process of obtaining third-party endorsement before applying.

The bad

Largely unknown at this stage, but we can expect some devil in the details. Eligibility will depend largely on how “global ranked university” is defined and what other criteria may be set. 

Those hoping for a hyper-liberal new route for all graduates from around the world are likely to be disappointed. As with most of the UK’s existing immigration routes, it seems likely that the eligibility criteria will favour wealthy individuals and applicants from rich, developed countries.

The déjà vu

We’ve been here before…

The idea of an unsponsored route to settlement based on the applicant’s high skill or potential is not new. 

First, we had the Highly Skilled Migrant Programme (HSMP) which ran from 2002 to 2008. This was a visa for “highly skilled persons who have the skills and experience required by the United Kingdom to compete in the global economy”.

After a few years, the Home Office decided that too many people were qualifying for settlement under this route without necessarily working in highly skilled jobs in the UK. So, in early 2006, it extended the qualifying period for settlement from four years to five, even for people already in the route. This change was eventually held to be unlawful: the High Court found that those already in the route had a “legitimate expectation” that they would be able to settle after four, not five, years.

In the second part of 2006, the Home Office decided that the criteria for extensions were not robust enough (again, because many successful applicants appeared to be doing work that the powers that be did not consider to be highly skilled). It introduced a further points-based eligibility test, with points being awarded for age, past earnings, educational qualifications and English language proficiency. 

This, again, affected those already in the route, many of whom no longer qualified for further leave or settlement. Once again, the change was held unlawful.

…twice

Then we had the Tier 1 (General) route. This ran from 2008 to 2011 for new applicants, with settlement applicants for existing visa holders possible up to 2018.

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This too was a points-based, unsponsored route. If you are wondering whether any scandals resulted, you can pat yourself on the back because of course that happened.

Extension and settlement applications under Tier 1 (General) required the person to show an income above a certain threshold. The evidence required was fairly limited so it operated on a kind of trust system. That is, until 2015, when the Home Office started noticing discrepancies between the (high) income some applicants reported to claim points for Tier 1 (General) purposes and the (lower) income reported to HM Revenue and Customs for tax purposes.

This led to the mass refusal of Tier 1 (General) settlement applications for even the smallest discrepancies. This, too, was broadly held to be unlawful

Note, however, that this category was closed to new applicants in 2011 – years before the tax discrepancies came to light. This is likely because, once more, the kind of people who qualified for this route, or the jobs they ended up doing on arrival, wasn’t what the Home Office was expecting.

Are unsponsored routes cursed?

Yeah, they might be. 

These routes are created to attract the kind of mobile international talent the government keeps harping on about (“best and brightest from around the world”) and it seems that the people in charge of fleshing out the vision have a certain type of applicant in mind. 

She will be smart. She will be highly educated. She will move to the UK to do important, highly-paid work. She might cure cancer. She will replicate the success she enjoyed in her home country almost immediately upon setting foot on UK soil. She will not want to be burdened by a sponsor for she has many countries to choose from and if the route is too burdensome, she can simply move to another rich, developed country instead. [She will most likely be a he — Ed.]

Each time, however, the rules end up casting a wider net than the Home Office had in mind. They generally fail to take into account reasons why a highly-educated immigrant with genuinely high potential might struggle to find the same level of success in the UK on an arbitrarily-short timescale. These include workplace discrimination, cultural differences and a lack of existing connections and references in the UK.

Will it work this time?

These past failures will weigh heavily on the minds of those drafting the new rules. 

Balancing openness with safeguards, creating rules that are easy to follow but difficult to abuse, isn’t easy. Fingers crossed that this time some consideration will be given to the factors that make it more difficult for successful applicants to immediately live up to their high potential through no fault of their own. At the very least, it would be good if the Home Office didn’t try to change the rules at half time if it doesn’t like the score.

Similarly, here’s hoping that the High Potential route won’t be limited to only graduates from elite global universities. Ideally it would also be open to at least some people from countries without world-class universities or the resources to study abroad, but who nevertheless did exceptionally well academically — perhaps at the best university in their country — who might, with the right opportunities, one day cure cancer.

Alex Piletska is a solicitor at Turpin & Miller, an Oxford-based specialist immigration firm where she has worked since 2017. Alex undertakes a wide range of immigration work, including family migration, Points Based System applications, appeals and Judicial Review. You can follow her on Twitter at @alexinlaw.