Points of entry

The new points-based system (PBS) for immigration is based on an Australian-style points system and is the biggest immigration shakeup for 40 years. It will be introduced gradually over the next few years, replacing the current system.

Underpinning the new migration system is a five tier framework:

• Tier 1: highly skilled individuals such as scientists and entrepreneurs;
• Tier 2: skilled workers with a job offer to fill gaps in the UK labour force;
• Tier 3: limited numbers of low skilled workers needed to fill temporary labour shortages;
• Tier 4: students;
• Tier 5: youth mobility and temporary workers – people allowed to work in the UK for a limited period to satisfy primarily non-economic objectives.

Tier 1 was launched on 29 February 2008; tiers 2 and 5 will come on stream in the third quarter of 2008; and tier 4 will follow at the beginning of 2009.

Sponsors’ licences and certificates

All prospective migrants intending to apply to enter the UK to work or study will require a sponsor. This requirement does not apply to nationals of the European Economic Area (EEA), or to migrants in the highly skilled tier (tier 1). The sponsors will be UK based employers, colleges and universities.

In order to become a sponsor, employers, universities and colleges need to be licensed by the Border and Immigration Agency (BIA). The licensing of sponsors is one of the key changes. Initially the system will not enable sponsors to gain a licence to bring in students. This part of the system will be introduced at a later date. The pilot sponsors’ registration commenced on 1 March 2008; the full launch is anticipated in June 2008.

Once licensed, sponsors will be able to issue a certificate of sponsorship (formerly work permit) in the form of an electronic reference number to the prospective employee/student. In the past it was the Home Office that issued work permits after it assessed work permit applications. Under the new system it is the sponsors/employers who must make sure that the procedure is followed, that they were unable to recruit within the UK and the EU, and that the foreign candidate has required qualifications and experience.

All prospective migrants in tiers 2-5 will need to obtain a certificate of sponsorship from a licensed sponsor before they apply for entry clearance at the British Embassy in their home country. The certificate will act as an assurance that the migrant is able to do a particular job or course of study. It thus places a greater onus on sponsors to ensure foreign nationals satisfy entry criteria and comply with the conditions of their immigration permission, backed by increased penalties. It is therefore critical that employers understand the requirements and implement processes to ensure compliance. A sponsorship certificate is not a guarantee that a visa will be issued.

As a condition of keeping their licence, employers will need to maintain specific records of all foreign nationals they sponsor, and alert the BIA if the migrant worker does not comply with their immigration conditions – for example if they disappear or do not turn up for their job or course. Any sponsor that does not comply with this requirement may have their licence withdrawn or the sponsorship suspended for investigation by the BIA. In practice, employers who employ foreign workers must ensure that they themselves are aware of the requirements imposed on them and have effective procedures implemented to comply with these requirements. Employers in this position can either train someone within their HR department or may elect to use a lawyer to handle their affairs under the PBS.

A system of civil penalties has also been introduced for those who employ illegal migrant workers as a result of negligent, or less than diligent, recruitment and employment practices. There will be a maximum fine of £10,000 for each illegal worker found at a business. These measures took effect on 29 February 2008.

Highly skilled migrants

The first phase of the new PBS was launched on 29 February. From this date tier 1 (general subcategory) applicants already in the UK can apply. Applicants in India will be able to apply from 1 April and applicants in the rest of the world in summer 2008. The remaining sub-categories of tier 1 (entrepreneurs, investors and post-study workers) are expected to be introduced by the end of the second quarter of 2008.

General subcategory
From 29 February 2008, only migrants with leave to remain in the UK in certain immigration categories are permitted to switch their immigration status to tier 1 (general) without leaving the UK. Applicants have to obtain at least 75 points on the basis of their qualifications (minimum being a bachelor’s degree), and earnings in the past 12 months. Additional points are gained if the earnings or qualifications were gained in the UK, and for age (no points for applicants over age 32).

Entrepreneurs subcategory
Migrants in this subcategory will be unable to seek employment and must take over, join or establish a UK business. They must gain 75 points and can achieve this if they have access to £200,000 (25 points), have their money held in a regulated financial institution (25 points), and have the money disposable in the UK (25 points).

Investors subcategory
Migrants in this subcategory must gain 75 points and can achieve this if they have money of their own, held in a regulated financial institution and disposable in the UK, amounting to no less than £1 million (75 points), or if they own personal assets which, taking into account any liabilities to which they are subject, have a value exceeding £2 million and have money under their control held in a regulated financial institution and disposable in the UK amounting to no less than £1 million (75 points). This may include money loaned to them, provided the lender was a financial institution regulated by the Financial Services Authority.

Post-study work subcategory
This subcategory, granted for a maximum of two years, will provide a transitional route enabling high-calibre graduates from eligible UK institutions – in whatever subject – to transfer into sponsored work (tier 2 when implemented), and other highly skilled categories. It will subsume the International Graduates’ Scheme and the Fresh Talent: Working in Scotland Scheme. Applicants must gain 75 points and can achieve this if they successfully obtained a UK recognised degree at bachelor’s level, postgraduate level, or a UK postgraduate certificate or diploma, or an HND from a Scottish institution (20 points). An additional 20 points can be gained if a UK institution is a UK recognised or listed body or on the tier 4 sponsors register (once implemented). A further 20 points can be obtained if the qualification was gained whilst in the UK with a student leave (tier 4 once implemented), or as a dependant of someone with valid leave in an immigration category permitting the bringing in of dependants. Finally, 15 points are obtained if the application is made within 12 months of obtaining the eligible qualification.

All tier 1 applicants (except investors and post-study) must show that they have sufficient English language competency. Additionally (except investors), they must have access to a certain level of funds to maintain and accommodate themselves and any dependants while in the UK. Tier 1 migrants are free to seek employment anywhere in the UK, and employers are able to take on such migrants, without having to issue a certificate of sponsorship. Point scoring The full extent of the impact of these wide ranging changes on all parties remains to be seen. Clearly highly skilled migrants from certain countries will find it easier to score the necessary points to enter the UK, while migrants from other countries, including non-English-speaking countries, will be at a disadvantage, as the English language requirement is a considerable barrier. Those with access to sufficient resources will be able to enter the country on the basis of their resources, and will not need to be proficient in English. There will also be some migrants already in the UK who will not be able to extend their stay under the new system and will be forced to leave. It is too early to assess the success or failure of the new system, but it is inevitable that the changes will make things more complex for employers and immigration lawyers. We will have to live through these changes and at some later stage will be in a position to assess fully whether the new system has been an improvement.

Damir Duheric is a senior solicitor with Morton Fraser Solicitors, specialising in immigration law t: 0131 247 1292 e: damir.duheric@morton-fraser.com

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CASE STUDY: THE FINAL HURDLE

The following hypothetical case scenario illustrates the onus on an employer to make sure that a prospective employee satisfies all the entry requirements:

An oil company (fictitious), Drilling & Co, based in Aberdeen, needs to employ a field engineer specialising in drilling. They advertised in a specialised magazine, on their website and on the “Eures” website targeting the workforce within the EU. However, after a month they had not received a single application. They then identified Mr Lee, a Japanese citizen living and working in Japan, who had the necessary experience, education and knowledge. Drilling & Co offered him the job and began the process of obtaining a work permit. Drilling & Co found out that under the new PBS, to begin this process they needed to apply to register with the Border and Immigration Agency as a sponsor. They did this online. They then found out they needed to post evidence to BIA to show that their company existed, and was involved in trading. They had 14 days to gather and submit this. Next, they finally received confirmation from BIA that they were registered sponsors and that they had been granted registration in the category grade A. They also received a bundle of documents explaining their duties.

They could now issue Mr Lee a certificate of sponsorship (formerly work permit). They sent the certificate to Mr Lee in Japan and advised him to go to the British Embassy to apply for a visa. There he was asked to complete an application form, pay the fees and supply any evidence he might have. He did this. A week later he was asked to attend an interview with an entry clearance officer. The entry clearance officer was from the UK and conducted the interviews in English. He asked Mr Lee many questions, some of which seemed irrelevant. Mr Lee was then asked to wait in the waiting room. Two hours later he was given a letter written in English saying his application was refused, as he had not provided sufficient evidence of his previous experience and his command of English was not satisfactory to enable him to work in the post for which he sought entry clearance.

Mr Lee had already given notice to his current employer in Japan. He informed Drilling & Co of what had occurred. The HR department could not understand this outcome. They contacted an immigration solicitor who advised them that there was no longer a right of appeal, although there was a possibility of asking the Embassy to review their decision. The solicitor also advised that the only legal way to challenge this decision was to apply for a judicial review in the Court of Session, which would be a quite complex and costly legal action.