The Legal 500

In February 2005 the Home Secretary announced details of the government's proposed five-year strategy for asylum and immigration. It was stated that the driving force of this strategy was to achieve greater public confidence in the immigration system. After a period of consultation with immigration practitioners and people representing a range of sectors across the UK and overseas, the government has now published its response to this consultation within the Home Office paper ‘A Points-Based System: Making Migration Work for Britain' (the paper).

The paper states that the benefits of the new system will be:

• better identification and attraction of migrants who have most to contribute to the UK;
• a more efficient, transparent and objective application process; and
• greater compliance and less scope for abuse of the system.

As with the current system, the intention is for employers to first seek to recruit from the resident labour market and the expanded EU before recruiting from overseas. The system concentrates on bringing into the UK migrants who are highly skilled, or those who can carry out key jobs that cannot be filled from the domestic labour market or from the EU. Under the new system, the intention is that only those who are of benefit to the UK should be admitted, and, once here, greater emphasis will be placed on ensuring that they comply with the conditions of their leave.

A points-based approach

The new system, in common with a number of other countries, will take a points-based approach, awarded according to criteria within a five-tier framework. The five tiers will combine all the current work permit schemes, the Highly Skilled Migrant Programme (HSMP), the student rules, and temporary routes of admission such as the working holidaymaker scheme, into a single points-based system. For each tier, applicants will need sufficient points to obtain entry clearance or leave to remain in the UK.

Changes to the system

The actual process of applying for permission to work in the UK will now largely take place outside the UK in a single process, unlike the current system - where the employer makes the work permit application to Work Permits UK and the applicant then presents the work permit to a British mission abroad and applies for an entry clearance.

The new system is intended to be more transparent and objective, removing the situation where a work permit can be approved, involving time and expense for the employer, but subsequently the entry clearance application is refused. The new scheme will replace, in effect, over 80 distinct routes by which an individual may enter the UK.

There is, however, an argument that the current system works well and the requirements for each route are carefully tailored and readily understandable for specific applicants, eg student intern or working holidaymaker. Within the new scheme, individuals may qualify within two or more categories, which could be confusing. The paper states that the system will be simpler because self-assessment will be possible against objective criteria. Within the current HSMP scheme there is scope for self-assessment, but the scheme currently has a refusal rate of around 50%, proving that self-assessment is not necessarily an easy task.

Awarding points

Points will be awarded for attributes such as educational qualifications or earnings, as these are said to predict an applicant's future success in the labour market, and also for control factors such as funds and English language.

In addition, all applicants in tiers 2-5 will need to produce a certificate of sponsorship from an approved sponsor. This certificate will be taken as an assurance that the applicant is able to do a particular job or course of study - it will be the responsibility of the employer or educational institution to determine that this is the case. This may mean that on issuing such assurance, the sponsor may also be vouching that the applicant's standard of English is sufficient to qualify, thereby reintroducing the question of subjectivity into what is supposed to be a purely objective and transparent system.

Sponsors will be graded A or B according to their track record or policies. A sponsor must make an application to the Home Office to satisfy the requirements in each tier and must accept responsibility for the control of those applicants it sponsors. New sponsors will be risk-assessed on a case-by-case basis before being allocated a rating. As yet, no further explanation has been given of the sponsor's obligations to police the system.

It is also proposed that financial securities be required from those applicants who are seen to be high risk. There will be grounds for refusal, such as being subject to an existing deportation order, which will continue to apply. In addition, there will be stricter penalties for attempted use of forged or fraudulent documents.

The new system will be introduced in a phased manner tier by tier. As yet, no firm implementation dates have been announced but it is unlikely to be before 2008, due to the immense IT requirements of the system and its implementation throughout the world.

The system sets the criteria for nationals outside the EU and EEA to enter the UK to work, train or study. It does not affect those who come to the UK as family members or existing UK ancestry and European Community Association agreements. Visitors will remain outside the system and the maximum period of leave will remain at six months. Visitors will not be able to switch, while in the country, into any of the work tiers, nor will people at the end of their stay in a particular tier be able to switch into visitor status.

Immigration practitioners raised concerns over the initial strategy's intention to abolish appeals for work and study routes within a system where applications would be submitted in a wide variety of countries to entry clearance officers who, for the most part, have no prior experience of the work permit scheme or resident labour testing. The paper states that where a right of appeal has been removed and an applicant believes a factual error has been made in consideration of an application, they can request a review of the application by a senior officer, but it is unclear whether, in practice, this is an adequate substitute for a right of appeal. Practitioners have expressed the view that the right of appeal should only be removed once it can be independently assessed that there has been an improvement in the quality of decision-making at missions abroad and that the objectivity of the criteria has been tested.

Tier 1 - highly skilled migrants

Tier 1 will replace the current HSMP, which is already a points-based system. This tier is intended to encourage inward investment into the UK, both in terms of financial and human capital. Analysis has been carried out on current HSMP individuals with regard to their skills on entry to the UK, their success after one year in the UK and subsequent earnings, and this analysis has been used to design the proposed points model. The consultation response indicated that skills and English language were important and age and previous salary were less important. This has resulted in a more flexible approach to allow applicants with different combinations of attributes to achieve 75 points to enter the UK.

However, the points model does not take into account individuals who may have significant achievements but not educational qualifications or earnings, eg artists or actors. Although such persons may qualify under tier 5, this tier does not provide a route to settlement and they may wish to live in the UK on a long-term basis.

The model demonstrates that a person who is highly qualified, ie a PhD graduate, does not need to show high previous earnings to qualify to gain entry to the UK. This model takes into account employer's wishes to recruit employees on the basis of their potential and not just past experience.

In addition, within tier 1, there will be an enterprise category for persons intending to establish themselves in business, innovators or those with substantial funds to invest in the UK. However, one of the control factors is going to be English language and although the government states it is seeking to attract persons who are to be of benefit to the UK economically, it is possible that many investors will not meet the English language requirement, thereby restricting their entry to the UK under this category and depriving the UK of substantial potential investment.

Tier 1 is the only tier which does not require a sponsor and therefore the only one accessible to sole traders or companies wishing to start up in the UK. It is possible that such an individual, without a UK sponsor, may not meet the criteria of tier 1 and there is no other option available to them, thereby depriving the UK of their skills.

A further category within tier 1, the post-study category, will allow overseas students who have studied at UK institutions to apply to work in the UK for 12 months after the completion of their studies.

Tier 1 is a route to settlement and successful applicants may be accompanied by dependants. Currently, the proposal is for an initial grant of two years, at the end of which there will be a reassessment of points and the applicant must have gained a significantly skilled job or appropriate earnings for an extension to be granted. The paper states that consideration is being given to granting settlement to the most successful after two years.

Tier 2 - skilled workers with a job offer

Tier 2 will be an employer-led scheme for medium-and high-skilled applicants with a job offer, and will also be a route to settlement. Applicants will need to have a job offer with an employer registered by the Home Office as an approved sponsor. The job will either have to be in an occupation identified as shortage by the Skills Advisory Body, have passed a resident labour test or qualify as an intra-corporate transfer (ICT).

Employers wishing to bring applicants into the UK under tier 2 will act as their sponsor and issue a certificate of sponsorship, to include the job title and salary. By producing the certificate of sponsorship, the employer is guaranteeing that the applicant:

• intends and is able to perform the duties of the role;
• that the salary to be paid is the market rate for the position;
• that the job is at NVQ skill level three or above; and
• if appropriate, the job has been advertised in the UK.

A job offer in a shortage occupation will automatically be awarded 50 points, the minimum required to qualify under tier 2, as will an ICT, for which the period of previous employment with the firm abroad remains at six months. For an ICT, the role must be at a minimum skill level of NVQ3 and paid at the UK salary rate, but the subjective requirement that the worker must demonstrate company-specific knowledge will be removed. However, there will be further surveillance and checking that the salary detailed on the sponsorship certificate is actually paid to the employee.

The resident labour market test will work through the existing Jobcentre Plus channels, but will not apply to jobs above a certain salary. No indication has been given of this benchmark. It would seem inappropriate for many senior level professional and banking positions to be advertised via a job centre, but until the salary figure is announced and the way in which the labour test will work it is difficult to assess how the test will work in practice.

Once admitted to the UK under tier 2, workers will be able to change employers within the UK but will be reassessed and will require a further certificate of sponsorship for the new employer. Workers will need a minimum of five years' residence, as introduced from 3 April 2006, to qualify for settlement. The paper states that the initial period of leave will be linked to the length of the contract, up to a maximum period which has not been announced as yet. Sportspeople, overseas government employees and ministers of religion will also fall within tier 2, but the skills and attributes required will be adjusted to ensure that categories such as ministers of religion will qualify. Until details of these adjustments are announced it is impossible to say whether these will be sufficient to accommodate these categories.

It is envisaged that tier 2 will be the most widely used tier by large international organisations wishing to move their employees to the UK. It will, of course, be to the benefit of these employers if the scheme is simpler and more transparent, but the day-to-day operability of the scheme is of major concern. Currently, applications are processed through Work Permits UK, with which many employers and representatives have developed good working relationships. It is feared that applications submitted in a wide variety of different countries and a number of time zones will create difficulties that the current procedure avoids.

Tier 3 - low-skilled migration

Following EU enlargement, when ten new countries joined the EU, the government felt that there was no longer a need for low-skilled migration schemes for non-EEA nationals. Since May 2004, around 329,000 workers from the EU accession countries have registered to work in the UK. The proposals set out in the initial strategy document resulted in a strong response, in particular from the agriculture and hospitality sectors, but it remains the situation that, wherever possible, workers should be recruited from within the UK and the EU before looking elsewhere.

Going forward, new quota-based, low-skilled schemes may be set up only for countries with which the UK has effective returns arrangements. These will only be temporary schemes in response to labour shortages. Such schemes will be run by an operator, with entry being granted for a maximum of 12 months. Dependants may not accompany the worker and there will be no right to switch into any other category. The government is also considering options such as compulsory remittances, requiring open return tickets and biometric data capture to ensure that workers return at the end of their stay.

Concerns have been raised by certain sectors regarding the phasing-out of some low-skilled routes and the future establishment of operator-led schemes. It is considered that the denial of settlement and the ability to switch for these workers may lead them to disappear into the illegal labour market on the expiry of their leave to remain in the UK. It has been questioned whether it is fair that those who are admitted to take on the most unpopular jobs are declined the right to family life. But it should also be borne in mind that it has never been easy for a low-skilled worker to enter the UK, so the new tier is not actually so much of a deviation from the current rules.

One category of worker that does not, in the vast majority of cases, fit into the five-tier scheme is that of the domestic worker, who has worked abroad for a number of years within the family of an international assignee who is being transferred to the UK. It is not unheard of for an employee to turn down an assignment on the basis of disruption to family life. These are highly skilled individuals, the like of which the government wishes to attract to the UK, and the exclusion of their domestic help or nanny may lead them to choose a country other than the UK.

Tier 4 - students

Tier 4 will be divided into three categories to reflect different types of studies, which will include a study through work category to reflect the increase of courses involving work experience or a placement. With the exception of those under 16, most students will be able to bring their dependants and will be entitled to work part-time in term time, and full-time in vacations as under the current rules.

On making an application, each prospective student will be required to produce a valid certificate of sponsorship from an educational institution at which the student has been offered and has accepted a place on a course of study. The certificate of sponsorship will act as an assurance that the student intends and is able to follow the relevant course of study and will replace the current assessment of this by an entry clearance officer or caseworker who may not be qualified to do so.

The period of leave granted will then be tied to the sponsoring institution and will be granted for the length of the course up to a maximum, including reasonable time to wind up their affairs and graduation ceremonies. Should the student wish to change sponsor or extend the length of their leave, a new in-country application will have to be made. Changes of course at the same institution will be allowed.

To appear on the list of approved sponsors, institutions will need to demonstrate that they are a bona fide learning provider accredited by a recognised body. The Home Office is working with the Department for Education and Skills with regard to this to seek out bogus colleges and students looking to abuse the student route. Sponsors will be required to report non-enrolment or students who abandon their studies.

Tier 5 - youth mobility and temporary workers

Youth mobility

This category will effectively replace the working holidaymaker scheme, the au-pair placement scheme and the British Universities North America Club (BUNAC), and will allow nationals aged 18-30 to come to the UK for up to 24 months. Participants will be limited to working for 12 months out of the 24 granted and will not be allowed to bring dependants or switch into any other category once in the UK.

The government will be looking to participating countries to agree to the terms of the scheme. There will be country-specific limits and some reciprocity for British nationals will be expected.

Each applicant will need to produce a valid certificate of sponsorship issued by their own government. The UK will expect overseas governments to pre-check potential applicants, making sure that they are aware of the terms of the scheme and the consequences of non-compliance.

Tier 5 also creates five sub-categories with their own criteria and sponsorship arrangements. The maximum period granted will be 24 months, switching will not be allowed and dependants will only be admitted if the main applicant is granted more than 12 months' leave.

The sub-categories are:

Creative and sporting

This covers people entering the country as sportspeople, entertainers or other creative artists for short periods of time. Sponsors could be record companies, promoters, tour managers, sports clubs, governing bodies etc. They will have to vouch that the entertainer or sportsperson is seeking entry to perform, tour, compete or take part in a specific event or series of events, that they provide no threat to the domestic labour market and there is no intention to do other work or remain in the UK. The maximum period of leave will be 12 months.

Voluntary

The sponsor must be a charity or non-charitable benevolent or philanthropic organisation as defined by legislation. Sponsors will need to vouch that the proposed work by the applicant is directly related to the purpose of the sponsoring organisation, the work is not subject to the national minimum wage and does not constitute a permanent position. The maximum period of leave will be 12 months.

Religious

The sponsor could be the synagogue, mosque or church and will cover religious workers in a non-pastoral role. The maximum period of leave will be 24 months.

Exchange

This sub-category will cover applicants coming through approved or accredited exchange or development programmes. The sponsor would be the organisation running the accredited scheme - for example, the British Council. The maximum period of leave will be 12 months.

International agreement

The UK government is obliged to allow certain people into the country as a result of various international agreements, such as the General Agreement on Trade in Services (GATS) or (for servants in diplomatic households) the Vienna Convention on Diplomatic Relations (VCDR) 1961. The sponsor would be the client or employer in the UK or, in the case of servants, the diplomatic mission. The maximum period of leave will be 24 months.

Summary

The government paper is a policy document setting out a strategy and approach to immigration control for the next five years. However, theory and practice are two completely different issues. There has been no analysis of the impact a points system will have on migration or whether the numbers of migration in each category will increase, and the subsequent effects this may have on the system or the UK's economy. It is to be hoped that the system will be robustly tested before full implementation, rather than risk a complete loss of faith in it.

 

 

By Julie Speed, Magrath & Co. E-mail: julie.speed@magrath

For more information please visit www.magrath.co.uk.