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Government policy on visas for non-EEA workers on inshore fishing vessels
Points based system
Nationals of states outside the EEA do not enjoy EU free movement rights and are subject to the rules of the UK’s points based system for immigration. There are five ‘tiers’ to the points-based system. Tier 2 (General) is the main visa category for bringing skilled non-EU/EEA workers to the UK. Generally speaking, the Tier 2 visa only caters for jobs that are classed at ‘graduate level’ (RQF level 6) or above and which pay a minimum of £30,000 per year, and for jobs which are on the official Shortage Occupation List. Tier 3, for low-skilled workers, has never been used. It has always been assumed that any need for low-skilled workers can be met from within the UK/ European Economic Area (EEA) workforce.
Appendix J to the Immigration Rules sets out the skill level and appropriate salary rate for jobs under Tier 2. Despite the demands of their difficult and often dangerous job, fishing vessel crew members are not deemed to be sufficiently skilled to fall under the ambit of Tier 2. Their work (and that of many other industries) is therefore considered ‘lower-skilled’ work for the purposes of UK immigration law.
A non-EEA national looking to come to the UK to take up a confirmed offer of work on a fishing vessel based in the UK and working outside UK territorial waters must have a transit visa. A briefing by Seafish, a non-departmental public body sponsored by the Department for Environment, Food and Rural Affairs, explained:
Non-EEA workers can come to the UK on transit visas to join ships that are currently in the UK, and which operate outside of UK territorial waters (12 nm). Because these fishers are joining ships that operate outside the UK, they do not fall under the scope of normal immigration rules, which means they do not need permission to work in the UK. However, they do need permission to enter the UK to join the ship – effectively to transit. To get permission to transit through the UK to their ship, they must obtain permission to join the ship, either by way of a visa issued overseas, or with the permission of an immigration officer at the UK border. Those provisions are necessary to allow international vessels to change crew, thus allowing fresh crews to arrive in the UK to join ships and outgoing crews to leave ships and return to their home country.
Within the fishing industry, the arrangements mean UK vessels operating outside 12 nm have been able to bring in non-EEA fishers without prior permission to work. This is a perfectly legitimate use of the immigration system.
Non-EEA nationals cannot come to work on vessels that operate wholly or mainly within the 12 nm limit (sometimes known as inshore vessels) under the transit visa provisions. People who work – or employ people to work – on inshore vessels after they have come to the UK on a transit visa, or sought to enter at the border to join a ship, are breaking immigration law.
[Seafish, ‘Working on UK fishing vessels: the legal framework and support for fishers’, November 2017]
The Immigration Act 1971 section 8 permits a crew member of a ship arriving at a place in the UK, under an engagement requiring him or her to leave on that ship as a member of the crew, to enter the UK without the leave of an immigration officer. A recent, detailed overview of the immigration rules covering foreign citizens in the UK fishing fleet published on the Free Movement website commented “[t]his is a sensible provision, since it sidesteps the need for our overstretched Border Force to process leave to enter decisions for every single non-EEA crew member arriving throughout the UK on a daily basis on all manner of vessels (and aircraft), upon which they then intend to depart.”
 Three exceptions apply: there is in force a deportation order made against the crew member; the crew member has at any time been refused leave to enter the UK and has not since then been given leave to enter or remain; or an immigration officer requires the crew member to submit to examination.
 Free Movement, ‘Briefing: the immigration rules covering foreign citizens in the UK fishing fleet’, 15 May 2018 (now behind a paywall)
The problem of geography
The Home Office policy is set out in its modernised guidance document ‘Seamen’. It imposes a significant restriction on the reliance on section 8 – fishing vessels with non-EEA nationals must operate outside of the UK’s territorial waters. As explained by lawyer Darren Stevenson in his briefing on the Free Movement website, this creates a “key problem for the industry” and a “unique issue in UK immigration terms”:
Much of the UK’s fishing fleet operates in the north east of Scotland. Vessels operating from these ports, if they wanted to fish outside territorial waters, need to sail 12 miles out to sea in most directions and would then be outside the UK’s territorial waters.
By contrast, a vessel operating from Lochinver on the north west coast of Scotland might need to sail 30 miles or more to leave territorial waters. Even then the vessel would be in the Atlantic Ocean, which is a far more challenging and dangerous area, generally, than the relatively shallow North Sea.
Of even more importance is that prawn trawlers, for example, operate on the basis that they drag a trawl net across the seabed to catch prawns, so only certain parts of the sea can be fished. The sea of the west coast of Scotland, containing the Sea of the Hebrides, the Little Minch and the Minch, is a particularly good fishing ground for langoustines, but these areas are all within territorial waters. So too is most of the sea around Northern Ireland. Prawn trawlers have some of the highest demand for non-UK crew.
This then creates a key problem for the industry. In some operational areas it is possible to engage non-EEA crew and in some it is not. The difference is down to geography.
Whilst the UK’s immigration laws do not allow for regional variation, Stevenson highlights that this is a fact of crewing regulation and that the ability to recruit non-EEA crew members is determined by geography. [Free Movement briefing, above]
Government response to industry’s concerns
The issue of visas for non-EEA citizens in the fishing industry was debated in the Chamber on 11 July 2018.
[Fishing Industry: Visas for Non-EEA Citizens, HC Deb 11 July 2018 c1077-85]
Responding for the Government, the Immigration Minister Caroline Nokes said “I am hearing clearly the message that the fishing industry, particularly in Scotland and Northern Ireland, faces particular workforce challenges, and I will be reflecting further in the near future on the case for a scheme to meet the industry’s labour needs.”
The Minister chose to emphasise two points. Firstly, she referred to the Government’s decision to commission the Migration Advisory Committee to report on the economic and social impacts of the UK’s departure from the EU and on how the UK’s immigration policy should best align with the Government’s industrial strategy. The MAC’s report is due in the autumn.
Secondly, the Minister argued “migration cannot be the primary—and certainly not the only—solution to skills and labour shortages in any part of the economy.” Whilst she predicted that the Government will take “a fresh look at how immigration policy operates to meet labour needs at lower skill levels”, she maintained that the underlying objective will be reducing dependence on migrant labour.
Ms Nokes acknowledged that such long-term planning is not the response the industry is hoping for:
I am very aware that these are issues for the future and that the Scottish and Northern Ireland fishing industries are pressing for a more immediate response to their labour needs now. It is not the only industry that is doing so, and the Government must act even-handedly, but, as I have said, I will be reflecting carefully on the case put forward and the practicalities involved in delivering a workable solution.
Key statistics and trends in the UK sea fishing industry, including landings, employment, fleet size, trade, sustainability and comparisons with EU countries.
This briefing provides an overview of the progress of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2019-21. The Bill has now completed its passage through Parliament.