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Global Mobility: Essential Best Practices

Migration and the Veil of Ignorance

Migration and the Veil of IgnoranceFifteen years ago I wrote a university dissertation on the social contract, looking at how the works of a number of writers had shaped the relationship between the state and society.  The works of Hobbes, Locke and Rousseau became my bedtime reading for a while.

As interesting as it was, practically speaking it hasn’t been my most useful learning and I’ve tried in vain since then to put it to some – any – practical use.

I thought I’d cracked ‘Lost’ when two of the characters were called Locke and Rousseau. I was wrong and my housemates thought I was pretentious.

A few years ago, in a private meeting, I told a prominent politician that he had wrongly attributed the phrase ‘nasty, brutish and short’ to Shakespeare. I swore it was one of Hobbe’s lines. Again I was wrong and I’m pretty sure I looked pretentious.

This is my last try at using that learning in real life.

The Migration Advisory Committee (MAC) is asking business to tell them how the UK’s corporate visa policies should be reformed.  Employers have until 25 September to respond to their consultation.

Technicalities aside, the thrust of the  review is very simple.  The government is adamant that fewer skilled workers should be given visas, so who should still be allowed in and to stay here?

This is where my tenuous link begins.  In 1971 John Rawls wrote ‘A Theory Of Justice’. He asked what sort of society would be fairest if we have no idea what our place would be in society? He called this thought experiment the veil of ignorance.

The MAC’s review of Tier 2 is asking HR managers, lawyers and others in global mobility to perform a similar exercise.  We have to accept that getting a Tier 2 visa will become much harder – the Prime Minister himself has made that clear – so who should get them?

The easiest answer to give would be ‘my people’.  That is fine if you know with absolute certainty who your people are; it is less helpful if we apply the veil of ignorance.  After all, you might be bringing in explicitly niche or high paid people this year, but what happens next year when you take a new job and are expected to bring in an accountant and a software developer?

So how do we approach the problem from behind the veil?

To begin with you need to set guiding principles.  In my view that means a system that is fair and that optimises the value accrued by the policy.

You can make the policy fair by creating a transparent and level playing field.  That means objective and robust criteria.  Leaving decisions to the whims of a faceless official is inherently unfair.  A system that can be abused by a few at the expense of law abiding users is also unfair.

Optimising the value of the policy doesn’t just mean getting the best people in.  It means enabling the entry of the people who will make the biggest difference.

A senior hire in a big firm could make a big contribution.  But would their contribution necessarily be bigger than the contribution of a more junior hire who’s skills will help a smaller firm grow?

We also need to think about new graduates.  If a global firm recruits a dozen new graduates  some of them may fall by the wayside, but others may go on to lead the business one day.  But the benefit is bigger than those individuals – their ability to enter might dictate whether the company base their graduate programme in the UK at all.  The entry of 12 foreign graduates might mean that opportunities are created for another 30 young British people.

So, how would I do it?

Firstly you need to find a sensible way to identify the people who will typically make the biggest difference.  There are all sorts of ways you can do this.

You could have officials interview people and make a call, as they do in the US.  You might have employers write down their own reasoning, as they did when the UK operated work permit policy.  Again though, these subjective systems do not give certainty and can lead to perverse outcomes.  Objective and transparent criteria is fairer.

That objective criteria might include qualifications, experience, professional status, age (indicating space to grow) or earnings.  Qualifications indicate value but most using Tier 2 already have degrees.  Experience is also a useful indicator but it is hard to objectively evidence and easy to abuse – it isn’t difficult to lie on  CV.  Younger people may have more time to develop but that is not to say that they will.

Nevertheless you could create a system where these attributes are traded off against one another.  Younger people with a degree could score as many points as a higher earning older worker.  The problem is we’ve been here before – the Tier 1 General visa category was closed down in part because the Home Office found too many people who were awarded visas but subsequently made a sub-optimal economic contribution, in their view at least.

My view is that salary is the best baseline indicator.  Most economists accept that salary is the best and clearest indicator of a person’s skill and likely contribution.  If the number of entrants needs to be reduced the simplest and most economically justifiable response would be to increase minimums salary requirements.

But it is not that simple.  Again, What about the entry level graduates?  What about the lesser paid programmer who will be the difference between a start up succeeding  and failing?

This calls for reasonable exceptions.  You could, for instance, also accept workers with a lower salary if they have a place on a place on a graduate programme.  You could also allow start ups and other smaller companies to pay a lower salary to a small proportion of skilled non-EU workers without fundamentally undermining the drive to reduce numbers.

I would also want to account for jobs where the skill of a worker is not necessarily commensurate to their economic value.  Scientists are the obvious example  and are already given preferential policy treatment.

There will be other groups.  You could argue that NHS staff fall are similarly underpaid, although that is a much bigger discussion.  I expect charities can’t afford to pay high salaries either.

I would argue that IT workers entering for short periods need not be paid exorbitant sums.  They come in, do their job quickly and leave without impacting national migrations statistics.  Their pay should still be fair, of course.

Some would still miss out of course.  I like the idea of a small number of places being put aside for those who would have qualified if today’s policy were still in place.  Those places would be available though a lottery.  I don’t necessarily like leaving public policy to chance, but it feels preferable to completely excluding people.  There is also a certain fairness to a lottery, so long as you can only buy one ticket per person.

Where would this take us?  Lower numbers, a fair system with objective criteria and a method for selecting the most important contributors.

Did Rawls ever expect his veil of ignorance to be applied to such a narrow area of public policy?  Probably not.  Does this still seem a bit pretentious?  Probably yes.  But I do think it is a useful tool.

I also refuse to believe that the writers on Lost accidentally named two of their characters after political philosophers, regardless of what my housemates said at the time.

 

By Ian Robinson, Fragomen LLP

Find out more at www.fragomen.com

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