Choosing to immigrate to the Isle of Man from South Africa17/11/2023
Immigration and the English language requirement18/12/2023
The law governing immigration to the Isle of Man, and British nationality and passports for its residents, changes very regularly, and at Kinley Legal we are constantly monitoring the changes, to see how they might affect our clients and the economy.
This is our review of some of the most recent changes that have occurred, together with an explanation of why the structure of immigration legislation has become so complex.
This is an updated version of this article (30 November 2023), following publication of the Tynwald Order Paper for the December 2023 sitting.
Closure of Worker (Seasonal)
New Immigration Rules (with effect from 9 November 2023) came in unexpectedly, closing new applications to the Worker (Seasonal) immigration route with immediate effect. This route allowed certain people working in hospitality and food production to enter the Isle of Man to work for a maximum period of 9 months, with no English language requirement, and a streamlined version of the Resident Labour Market Test.
The reason for the closure of the route is unclear, although according to the explanatory note to the legislation, in part due to “concerns raised regarding the welfare of some migrants entering the Island under the route“. In our view, it has been moderately successful, and the route is no more subject to abuse than any other. The notice published on the Isle of Man Government website says that that this route, introduced in February 2022, was only introduced on a temporary basis (which was not our understanding at the time).
Unfortunately, we believe this step will affect the world cuisine industry in the Isle of Man particularly hard, at a time of year when employers were starting to recruit their staff for the 2024 summer season. Many kitchens work in languages other than English, and chefs do not necessarily have the high level of English language ability required for other work visas.
Confusingly, another set of Immigration Rules (with effect from 24 November 2023) had already been approved and published prior to 9 November 2023, meaning that when they came into force, they appeared to reverse the changes from 9 November 2023 and the Worker (Seasonal) route was reinstated in the Immigration Rules. A further version of the 24 November 2023 rules was uploaded on 29 November 2023, again closing the Worker (Seasonal) route. It will be interesting to see what happens if anyone applied for the route between 24 and 29 November 2023.
Immigration Service on the move
In another change, on 11 October 2023 the Immigration (Isle of Man) (Amendment) Order 2023 was made. This is an Order in Council which enables the transfer of immigration functions from the Cabinet Office to the Treasury department of the Isle of Man Government. The transfer is due to happen on 16 January 2024, by order of the Treasury Minister. It is likely that responsibility for nationality and passports will also be transferred, although these do not require an Order in Council.
When it happens, the transfer of functions between Isle of Man Government departments should not affect immigration, nationality and passports matters too much, although it will necessitate the revision of all application forms and guidance documents. It is unclear why the Treasury is thought to be the appropriate place to site these functions. Perhaps the Treasury Minister will have a keener eye on the financial bottom line, and may even question why the UK gets to retain 100% of Isle of Man immigration fees paid by overseas applicants, and the Isle of Man receives nothing?
How immigration law is made
he vast majority of Isle of Man primary legislation is created as Acts of Tynwald, the Isle of Man’s parliament, all of whose members (except for the Bishop of Sodor and Man, and the Attorney General) are directly or indirectly elected. Secondary legislation, such as Regulations and Orders, are then typically made by the Minister of the appropriate Isle of Man Government Department.
The way in which immigration legislation works in the Isle of Man is rather unusual. Instead of creating its own primary legislation, the Crown makes Orders in Council, which apply a version of the UK’s primary immigration legislation to the Isle of Man, with amendments. Orders in Council are UK Statutory Instruments. Not all UK immigration legislation is applied (for instance, the Minister in the Isle of Man has no asylum powers). Tynwald and the Isle of Man Government therefore have no role in the legal process for adopting primary immigration legislation in the Isle of Man, although it is a longstanding principle that the UK should not legislate for the Isle of Man without consent.
So who writes the rules?
The Immigration Rules form the main body of immigration legislation, and are created as secondary legislation (known as Statutory Documents) by the Isle of Man Government. Once approved by the Council of Ministers, changes in the Immigration Rules are laid before Tynwald. They are merely subject to a negative vote procedure, which means in practice that Tynwald does not scrutinise the changes.
The logic as to why the UK has retained the ultimate power over Isle of Man immigration legislation stems from the principle that, while the Isle of Man is internally self-governing and can make its own domestic laws, the control of borders is an external issue, retained by the UK in much the same way as maritime legislation or the law in relation to British citizenship.
However, to us at least, the way Isle of Man immigration law is made seems profoundly undemocratic.