Legal opinion: Points-based immigration system will create more problems than it solves

Immigration minister Liam Byrne announced on 18 April 2007 the timetable for the introduction of the initial points-based system, which is to replace the current existing forms of permission for entering the UK.

The first change will be the introduction of ‘Tier 1’, to be launched at the beginning of 2008. Tier 1 is supposed to cater for highly skilled migrants.

If it ain’t broke…

The first question is, why? What is so wrong with the current system that it needs this complete change? Part of the government’s argument has been that there are more than 60 routes into the UK. While these include less well known headings such as Japan Youth Exchange and research students to MPs, the vast majority of applications are filed under rules relating to work permit employment and students.

Is the government bowing to international (US) pressure – as there is also entry into the UK under grounds of representing a religious order?

A further government criticism of the current system is that there are (potentially) two separate applications that may need to be processed. Therefore, it says, there is duplication and delay.

Not only are two applications (initial permission and then additional visa/entry clearance) not always necessary, they actually deal with completely separate points.

Byrne also said: “With the exception of an elite group of highly skilled migrants, all other foreign workers or students will need a UK sponsor to vouch for them, and help us make sure they are playing by the rules.” Surely, two separate applications provide the government with sufficient opportunity to not only verify applicant details but also to log sufficient information for travel purposes?

It appears it will no longer be enough for an employer to make the work permit application (and comply with existing Section 8 (illegal working) legislation. One implication is that colleges/universities are now expected to take more interest in their international students than their UK counterparts. Racial discrimination anyone?

Route-in maintenance

A key element to the changes has been the comment “there are far too many routes of entry into the UK this will be simpler”. There is a precedent for this approach – the Highly Skilled Migrant Programme (HSMP). 

This points-based category was revised in November 2006 and, as a result, the points scoring areas have been reduced from six areas to four, and the criteria have – supposedly – been made clearer. So clear, in fact, that in February this year, the government released figures stating that, since the introduction of the new criteria, two-thirds of applications had been rejected on technical grounds – clearly, not everyone understood that when the HSMP called for a ‘tax return’, it actually meant a P60 (a definition even the Inland Revenue disagrees with).

Serious consequences

No system is perfect, but what we have suits the needs of most applicants. The vast majority of employment permission applications are filed and considered from within the UK and dealt with by officers who are contactable. Under the new regime, the decision is now an immigration decision overseas. Given that some new HSMP applications were rejected on technical grounds (due to the incredibly poor drafting of the guidance notes), it is to be expected that there will be similar issues again.

The consequences, however, are now more serious. To reapply under the new regime, an applicant would need to declare that they have had a visa application previously refused, which will automatically make their next application far more difficult. This cannot be an improvement.

Government assumptions under the spotlight

  • Assumption: Too many existing routes. Not all applicants who can come to the UK now would meet the new criteria.
  • Assumption: Duplication of effort with two applications. Not always, and there are good reasons for the economic and immigration decisions to be separate.
  • Assumption: Clarity of new process. Problem: See February statement on new HSMP criteria.
  • Assumption: Applications filed and decided overseas with no opportunity for contact.Problem: Of course, immigration officers never make mistakes.

By Gavin Jones, special counsel and head of immigration, Taylor Wessing

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