MAC Review Of The Shortage Occupation List: What This Means For The Creative Sector

The Migration Advisory Committee (MAC) issued its long awaited report following its latest review of the shortage occupation list (SOL). For those unaware the MAC is a highly influential independent body that is periodically instructed by the government to conduct reviews and make recommendations on UK migration issues, and by and large, the government tends to implement the respective recommendations. In summary what the MAC says often then goes.

The MAC has made some relatively far-reaching recommendations essentially to scrap the main elements of the SOL, if not the premise of the SOL entirely. There will be many thoughts among the community about what this means for the UK immigration framework as a whole but I will particularly focus on the MAC's recommendations for the creative sector. Before alarm bells ring too loudly the recommendations overall look reasonably encouraging for the sector and here's why.

The SOL and the Creative Sector

Firstly let's quickly turn to why the SOL has been important for the sector and the benefits it brings. Many creative roles are indeed on the SOL, such as artists, graphic designers, a large amount of film and tv production roles, and certain dance and musician roles. The SOL grants these roles certain benefits, namely under the Skilled Worker (SW) route reduced salary thresholds and a discount in visa fees, and separately but perhaps more importantly, it allows for streamlined use of the Creative Worker (CW) visa, which is an excellent visa route for those in the sector to bring in creative workers quickly and cost effectively for short term assignments.

Turning to the CW route, if a role is on the SOL this waives the need for a sponsor using the CW route to have to turn to the Creative Codes of Practice (the Code) to show they are not displacing a settled worker – for a SOL role the sponsor simply goes ahead and issues a certificate of sponsorship ticking the SOL box. If a role is not on the SOL, the Code outlines ways a creative role can be sponsored to show the local labour market is not being displaced, for example the Code allows for exemptions from advertising if an individual has a sufficient level of fame, is an integral part of a production or required for its continuity, or is engaged in a unit company. If a sponsor cannot justify along these exemptions, then the Code set out how and where to advertise a role. Essentially if the role is not on the SOL a sponsor needs to confirm how they conformed to the Code to show the local labour market was considered, which can prove to be burdensome. Many describe the Code as archaic and bureaucratic, a sort of dinosaur of the immigration rules, which certainly has some truths behind it, and it is also open for debate whether the Home Office itself fully understands the Code and its functionality for sponsors.

What the MAC is saying

Various representative bodies for the creative sector, as well as sponsors themselves, made representations to the MAC that removing creative roles from the SOL would create a bureaucratic nightmare for companies using the CW route, harkening back to the days of running advertisements for roles (the so-called resident labour market test) which is largely unworkable for a fast-paced moving sector such as the creative industry. The MAC indeed noted that most respondents to the SOL for the sector are not prioritising the salary threshold benefit or visa fee discount but rather the roles being on the SOL allows them to bypass the bureaucracy of the Code. In short, the MAC did indeed listen to these responses, summarising their findings as follows:

The MAC further concluded that should the government not implement these recommendations, "immigration arrangements for the CW visa would inadvertently be made more restrictive and costly." That certainly seems like a hint for the government to take action which the MAC subtly, or perhaps here, not so subtly, often expresses in their findings.

What does this mean in practice

Some guesswork may still be required as to how the government interprets the MAC's instruction to streamline the CW visa and update the sponsorship rules for CW visa to remove reference to the SOL, and to "allow employers to sponsor any occupation that is currently eligible for the SW route without having to perform a labour market test". A reasonably optimistic outlook, which does however seem likely for implementation, would be the abolition of the Code and alignment for the CW category with the SW category in the sense that there would be no formal requirement at all for a sponsor to show they are not displacing a settled worker. Some sort of hybrid arrangement could be introduced with some specific requirements still placed on CW sponsors but not as onerous or bureaucratic as before – this would generally however be received by the sector as disappointing. Having spoken to many in the sector the impression is that the current culture secretary seems very supportive of the sector and the communications from the government seem to back this up (see here and here, for example, with the creation of the Creative Industries sector vision). Given the MAC's recommendations and assessing the current government's support for the sector, the gloomy prospect of a sponsor having to navigate their way through the Code for every CW visa application seemingly has diminished though until we see the new rules, cannot be entirely ruled out.

Final thoughts

The concerns, perhaps even panic, among sponsors of the prospect of using the CW route and having to deal with the bureaucracy and complexity of the Creative Code thankfully appears to not be materialising. The CW route should remain a highly beneficial, fast and cost-effective route to bring individuals to the UK for short term temporary work in the creative sector. Of course the MAC recommendations have some negative impact – the discounted application fee for SOL roles using the SW route will be missed, especially by larger sponsors in the sector sponsoring numerous workers (but this follows the current government rhetoric of increasing the cost of the immigration system). We will also have to see how the MAC's recommendation for a minimum salary threshold for the CW route plays out as the nature of the industry does not necessarily align itself easily to minimum annual or hourly salary thresholds, given a large portion of the sector are freelancing and many of the CW sponsors are not in effect the employers of those they sponsor. We will have to wait to see final implementation of these recommendations by the government but those sponsors in the sector using the CW route should ultimately be able to find a large degree of comfort in the MAC report.

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