Q The government’s new points-based immigration system is described as the biggest overhaul of UK immigration in 40 years. Are the changes really that significant?
A The government’s intention to introduce a points-based system was first announced in February 2005. It undertook an extensive consultation exercise between July and November 2005 to get feedback on the core ideas. The Command Paper, published on 7 March 2006, provides the first detail on how the new system will be organised and work in practice.
The 80-plus routes which currently enable non-European nationals to work, study or train in the UK will be abolished and replaced by the points system. The current work permit scheme will disappear and applications to work in the UK will be considered by British diplomatic posts overseas, rather than in the UK. Employers will have increased responsibilities to co-operate with the Home Office on immigration compliance issues. The new system will fundamentally alter the way applications are made and processed.
Q When will the system be introduced?
A The changes will be introduced gradually – the government does not anticipate the entire system being operational before spring 2008.
Q How will the new system be arranged?
A It will be divided into five tiers:
- Tier 1 effectively replaces the current Highly Skilled Migrant Programme, and enables migrants with high-level skills to enter the UK with or without a job offer. Points will be awarded for academic qualifications, previous earnings, and age (if under 32). It will also cover businessmen, entrepreneurs and investors under an enterprise category, although details are not yet available.
- Tier 2 replaces the current work permit scheme and will be available to skilled workers with a job offer from a UK employer who is on the Home Office’s list of approved sponsors. The job will either have to be in a recognised shortage occupation, or pass a test to show that the applicant is not displacing an EU worker. However, it is unclear exactly how or in what circumstances employers will have to advertise a non-shortage role. Migrants under tiers 1 and 2 must have English language skills (although the level and means of assessing is not determined). Only entrants under tiers 1 and 2 will be eligible to apply for permanent residence after five years, although the Home Office is considering allowing some tier 1 entrants to qualify after two years.
- Tier 3 will provide limited numbers of low-skilled workers needed to fill specific temporary labour shortages.
- Tier 4 will provide entry for students coming to study in the UK.
- Tier 5 will cover youth mobility and temporary workers, replacing the current working holidaymaker scheme.
Q What is the significance of sponsors being rated an ‘A’ or ‘B’ sponsor under the scheme?
A Although applications will continue to be employer-led, the application itself will be filed by the individual to a diplomatic post overseas. All applicants under tiers 2 to 5 must provide a certificate of sponsorship from a UK sponsor, which acts as an assurance that the applicant is able to do a particular job.
An employer must be approved by the Home Office before it can issue a certificate, and will have to show it meets certain requirements and has been checked by the Home Office. An employer will be ranked ‘A’ or ‘B’ according to its track record and policies on employing foreign workers.
An ‘A’ ranked employer can expect a ‘light touch’, while ‘B’ ranked sponsors (who have a poor track record or need to improve their policies) will be subject to more scrutiny.
No detail currently exists as to how employers will achieve rankings, how often they will be audited or the impact of losing an A rating on future applications by that employer. However, it is clear that an employer will have an important compliance role in ensuring that the departure of all employees is notified to the Home Office.
Q Individuals were previously required to have lived in the UK on a legal basis for four years until they qualify to obtain indefinite leave to remain. This has now increased to five years. What are the implications?
A Unless an overseas national is eligible for and has submitted the application for settlement on the basis of four continuous years in the UK by 3 April 2006, they will have to complete another year in the UK. This means that the qualifying period for naturalisation – the process by which one can obtain British citizenship – has effectively been increased from five to six years.
Q When will further detailed guidance on the scheme be provided?
A Although work is under way, there is no firm timetable in place. It will be a case of simply watching and waiting.
By Caron Pope, partner and head of business immigration, Reed Smith UK