6 Points criteria: fair, transparent,
flexible?
Are the points categories a fair
measure of skill?
83. Much has been made of the advantages of a
Points Based System in terms of the transparency and equality
generated by the formulaic application of points for attributes.
The Green Paper which introduced the system, A points-based
system: making migration work for Britain, stated:
Applicants will find the system simpler to understand
and the rules for entry clearer and more consistently applied.
It will be quicker and simpler for employers and educational institutions
to bring in the migrants they need, and there will be more certainty
about whether prospective migrants will be able to come to the
UK. The public will better be able to understand who we are allowing
into the UK and why, and have confidence that the system is not
being abused. It will also be more straightforward for entry clearance
officers and caseworkers to administer.[89]
84. Others welcomed the introduction of the system
for these reasons. John Cridland of the Confederation of British
Industry considered that the regular review of the skills requirements
and shortages in the economy by the Migration Advisory Committee
gave the points-based system "the merit of flexibility".[90]
Sir Andrew Green of Migration Watch UK told us that the points
requirement enabled the Government to "raise or lower the
threshold",[91]
and the Immigration Advisory Service welcomed "the change
from a subjective approach to an objective one by entry clearance
officers as many refusals based on a subjective assessment of
whether or not an applicants has the intention of leaving the
UK at the end of limited leave to remain were found to be wrong
and overturned on appeal".[92]
During our visit to India in October 2008 we heard similar sentiments
from international businesses.
85. Yet, these same characteristics introduce
a degree of rigidity and inflexibility. Attributes which fall
outside the Government's strict definition of what attracts points,
and how many points, cannot be acknowledged. This is exacerbated
by the fact that exceptional cases cannot be considered, and any
formulaic application of the rules provides little incentive for
immigration officers to exercise judgment on the circumstances
of individual cases. It is further compounded by the lack of any
right of independent appeal. It therefore becomes all the more
imperative that points are awarded in a way that recognises the
diverse nature of skills across widely differing industries, the
range of ways in which skills are learnt, and differences between
countries in terms of earnings attracted for the same skill.
86. In assessing whether an occupation is 'skilled',
the Migration Advisory Committee (MAC) has adopted a methodology
which combines five indicators: pay; qualifications; Office for
National Statistics classification; innate ability; and training
and experience. It describes its combination of 'top-down' and
'bottom-up' analysis as follows:
We have looked at factors that might indicate whether
an occupation is relatively skilled. These include qualifications
held by people within that occupation, average earnings and skill
level within the SOC2000.[93]
Other indicators of skill, such as on-the-job training or experience
and innate ability required to carry out the job to the appropriate
level, are important too, and were considered through our bottom-up
analysis.
For our purposes, we defined an occupation as top-down
skilled if at least two of three criteria are satisfied: 50 per
cent or more of the workforce are qualified to NVQ level 3 or
above; median hourly earnings for all employees is £10 or
more; and the occupation is defined as skill level 3 or 4 in the
SOC2000. Applying these criteria, 192 occupations out of 353 satisfy
our definition of skilled.[94]
In terms of the 'bottom-up' analysis, the MAC describes
the indicators of 'innate ability' and 'training and experience'
as follows:
On-the-job training or experience: this may
result in the job or occupation being skilled at level 3+, even
in cases where many job holders do not have formal qualifications.
For example, in occupation 5231motor mechanicsonly
40 per cent have formal qualifications at level 3 or above. Presumably,
a fraction of the remainder have acquired the requisite skills
via on-the-job training;
Innate ability: some occupations require skills
that cannot readily be taught or learnt what we refer to
as 'innate ability'. This, for many of us, implies a high level
of skill, even though many in the occupation may not have formal
qualifications. Consider, for example, occupation 3414dancers
and choreographers. Only 30 per cent in this occupation have formal
qualifications at level 3 or above. Yet there will be a limited
supply of individuals with the ability to become what most people
will regard as a skilled practitioner of this occupation.[95]
87. Professor Metcalf told us that pay, qualifications
and age constituted important objective criteria, whereas "it
would be very difficult indeed to measure both the nature of the
experience that people have had on an individual basis and innate
ability".[96] He
agreed, however, that "it may be that the calibration of
the points requires a little bit of tweaking periodically".[97]
88. However, witnesses suggested that, in the
search for objective criteria, the system risks allocating points
for form rather than substance. The Immigration Law Practitioners'
Association argued, for instance, that "the pursuit of perceived
'objectivity' has become the driver of the Points Based System
at the expense of other policy objectives. For example, it would
appear that significant skills tests such as work experience and
skills were sacrificed in this pursuit".[98]
89. The Government's own consultation in March
2006 on the new system asked which attributes were the most important
in determining points for Tiers 1 and 2. Of the 517 responses
received to the question "which attributes do you think are
the most important for Tiers 1 and 2?", attributes were ranked
as set out in the following table.
| Age
| English language
| Job Offer | Previous Salary
| Work Experience |
Skills |
Least | 27%
| 4% | 3%
| 34% | 0%
| 0% |
Less | 19%
| 7% | 5%
| 25% | 2%
| 2% |
Neutral | 39%
| 12% | 18%
| 32% | 10%
| 7% |
More | 13%
| 52% | 36%
| 8% | 47%
| 27% |
Most | 2%
| 26% | 38%
| 1% | 40%
| 64% |
The consultation paper concluded that "the
attribute considered most important by respondents is skills/qualifications,
followed by English language ability".[99]
This is an interesting conclusion, since the consultation in fact
asked about "skills" but in the analysis this has been
conflated with "qualifications"as we suggest
below, qualifications are not by any means an accurate measure
of skill.
90. The Immigration Law Practitioners' Association
commented on these findings, highlighting that "only 2 per
cent of those who responded considered age to be the most important
attribute and only 1 per cent considered previous salary to be
the most important. 64 per cent considered skills to be most important
and 40 per cent work experience". It argued that "the
attributes test for Tier 1 is based solely on age, previous earnings
and qualifications; it does not take into account at all the applicant's
skills or previous work experience".[100]
91. Given such concerns, we considered briefly
the appropriateness of the main points categories stipulated by
the PBS:qualifications; maintenance and salary; and English
language.
Qualifications vs experience
92. We heard compelling evidence that the emphasis
placed on formal qualifications by the Points Based System failed
to take into account jobs where skill cannot be gauged primarily
on qualifications. Under Tier 1, applicants must now hold formal
qualifications at the level of Master's degree or higher in order
to gain any points for qualifications. Under Tier 2, applicants
must hold at least NVQ level 3 qualification. There are no points
allocated under either Tier for training or on-the-job experience.
93. During our visit to Bangladesh in October
2008 the argument was put to us that points should be more directly
linked to the skills required for specific jobs, and that the
requirement for skilled workers under Tier 2 to have an official
qualification at NVQ level 3 should be relaxed for experienced
workers. We were told, for example, that chefs often had 'on-the-job'
experience rather than formal training or qualifications.[101]
This was emphasised also in formal evidence. The Chinese Immigration
Concern Committee argued that the Government's designation of
NVQ level 3 as a benchmark qualification to earn points was inappropriate
and did not reflect the skills required by the job. Its research
into the NVQ Level 3 Professional Cookery or the NVQ Level 3 Food
Preparation and Cooking "found that none of the courses contain
any unit or content on Chinese cooking".[102]
94. Similar concerns were reflected in the arts
sector. Louise De Winter of the National Campaign for the Arts
(NCA) told us "the big area of contention and a problem for
our artists is around qualifications. Obviously, you do not need
academic qualifications to be good at acting or dancing or playing
the violin".[103]
The NCA suggested that "there should be an alternative means
of accruing points, perhaps through training and experience".[104]
It stated that many international artists would not meet the points
required for entry under Tier 2, which are set at 50 points for
attributes including salary, 10 points for English language and
10 points for maintenance. It explained that:
This is because of the nature of qualifications and
earnings in various areas of the arts sector and not a reflection
of the talent of the artist in question: for example, a dancer
might be professionally trained, but not have any professional
qualifications.[105]
95. The Immigration Law Practitioners' Association
criticised the way in which points are awarded under Tier 1, particularly
the emphasis on qualifications. It stated:
A 22 year-old graduate with a bachelor's [now a Master's]
degree from a UK institution who has earned £23,000 in his
first 12 months of work experience would meet the attributes requirements
of Tier 1. Whereas a businessperson of 25 years experience, with
a global reputation and earnings of hundreds of thousands of pounds,
but who lacks a bachelor's [now a Master's] degree would not qualify
as "highly skilled" under Tier 1. Tier 1 is fundamentally
flawed in this regard and cannot cater for the different types
of highly skilled applicant. This is in contrast to its forerunner,
the highly skilled migrant programme, where points could be awarded
for extensive experience which would compensate for the lack of
degree.[106]
(At the time of this comment, Tier 1 required migrants
to possess a bachelor's degreehowever, this requirement
has subsequently been raised to a minimum of a master's degree).
96. The Minister for Borders and Immigration,
Phil Woolas MP, acknowledged that some people were highly skilled
but did not possess formal academic qualifications. He stated
that the system allowed "enough flexibility to meet the Einsteins
of this world" but did not suggest how points could be allocated
for experience or skill other than through a formal qualification.[107]
Maintenance and salary
97. All applicants are required to prove that
they are able to support themselves financially in the UK without
recourse to public money. To this end they must meet a maintenance
test which stipulates that they must hold a certain sum in available
funds in their bank account, based on a cost of living calculation
of £800 a month (or £600 outside London). The figure
is derived from British Council research on the cost of living
in the UK. The precise sum required varies depending on the Tier:
Tier 1 applicants are required to hold £2,800, since they
are able to enter the UK without a job offer, whereas Tier 2 applicants
need only £800, since they hold a job offer. For those applying
within the UK, the sum is £800; whereas for overseas applicants
it is £2,800. All applicants must prove that they have held
the sum continuously in their bank account for the previous three
months.
98. Sophie Barrett-Brown of the Immigration Law
Practitioners' Association (ILPA) argued that this would "have
the effect of having a poorly discriminatory effect against certain
nationals who are coming from developing countries and, therefore,
will not have the level of funds that nationals from more developed
countries will have".[108]
ILPA provided an illustrative example:
A Tier 1 applicant outside the UK must show £2,800
for themselves and £1,600 for each family member. For a typical
family of four this would therefore be £7,600. For an applicant
from Ghana for example this would be equivalent in real terms
to £83,600 (by the UKBA's own measures of relative income
values world-wide, which it uses for calculating the points for
the past earnings attribute).[109]
99. We heard similar concerns during our visit
to India in October 2008. UK Border Agency staff in Delhi told
us that, to that date, 65 per cent of refusals under Tier 1 had
been based on applicants not meeting the £2,800 per person
maintenance requirement. They said that there had typically been
two reasons for thisinsufficient savings by the applicant,
and/or poor documentation, and told the Committee that professional
salaries in India tended not to be as high as their UK equivalents,
making it hard for even highly skilled migrants to meet this criterion.[110]
100. The requirement that an applicant must have
held the sum in their bank account for the whole of the previous
three months has also come under fire. The Immigration Law Practitioners'
Association argued that "a single applicant who ordinarily
maintains a balance of £50,000 but on one day in the last
three months dropped to £2,799 simply due to the order in
which transactions were processed by his bank will fall to be
refused".[111]
The Joint Council for the Welfare of Immigrants calculated that
a Bangladeshi accountant/professor would take 18.7 years to earn
enough to meet the maintenance requirement for himself, a spouse
and three children.[112]
Evidence from the Canadian Education Exchange Foundation, which
manages teacher exchanges between the UK and Canada, argued that
it was unnecessary for the maintenance requirement to apply to
teachers who had been continuously, and continued to be, paid
a regular salary from their home institution:
The financial requirement seems unnecessary given
that these teachers remain e employed and paid by their Canadian
Boards of Education during the entire duration of the exchange
period.[113]
101. Similar concerns have been expressed about
the points requirement for previous salary under Tier 1. Points
are allocated on the basis of the salary previously commanded
by a migrants, as follows:
- £16,000-£17,999: 5 points
- £18,000-£19,000: 10 points
- £20,000-£22,999: 15 points
- £23,000-£25,999: 20 points
- £26,000-£28,999: 25 points
- £29,000-£31,999: 30 points
- £32,000-£34,999: 35 points
- £35,000-£39,999: 40 points
- £40,000 + : 45 points[114]
The Home Secretary announced in February 2009 that
the salary requirement would be tightened with effect from 1 April
2009, to a minimum of £20,000, thereby further reducing the
points available.
102. Several witnesses agreed that future salary
earnings provided an unfair measure of skill. The Highly Skilled
Migrants' Forum asserted that it could create a gender bias, since
female migrants tend to draw lower salaries than their male counterparts:
"if women working in the UK earn on average 12.6 per cent
less than men, it will be that much harder for a woman than a
man to hit the £35,000 salary joint extension threshold".[115]
The Joint Council for the Welfare of Immigrants agreed, noting
for example that the gender pay gap in India was around 40 per
cent in rural areas and 25 per cent in urban areas.[116]
103. We questioned the Minister for Borders and
Immigration, Phil Woolas MP, about the maintenance and salary
requirements. He advised that, in calculating previous earnings,
the Government intended to use inflators to reflect lower salaries
in certain countries. Neil Hughes of the UK Border Agency explained
that "for example, for Australia and New Zealand the multiplier
is one to one, so we just do a direct conversion. In somewhere
like the Ghana, Nigeria, Somalia, we use an 11.4 multiplier to
reflect the fact that earnings in that country are normally much
lower".[117] He
commented that he did "not think it will impact on developing
countries disproportionately because of the multipliers that we
use".[118]
104. The Government accepted that "saving
this money will be more difficult for people from poorer countries
but are satisfied that it is the right thing to do".[119]
However, Mr Hughes observed that the figures involved simply reflected
the cost of living in the UK: "the fact is, if you are coming
to the UK, I do not think your landlord, who you are going to
pay, charges you less because you are coming from a developing
country. I do not think the supermarket charges you any less for
a basket of groceries because you are from a developing country.
That is how much you need to survive in the UK".[120]
However, in a concession to concerns, the Government has allowed
'A' rated sponsors of Tier 2 migrants to provide a written undertaking
that, should it become necessary, they will maintain and accommodate
the migrant up to the end of his first month of employment.[121]
This is mirrored by a concession under the intra-company transfer
route which allows the sponsor to send a letter of undertaking
to support the migrant and their dependents.[122]
English language
105. The Points Based System requires applicants
to have a basic level of English language fluency. For applicants
under Tier 1 this is equivalent to C1 on the Council of Europe
Common European Framework of Reference; for applicants under Tier
2 it is lower, the equivalent of A1 (very basic conversation)[123]
on the same Framework. There are exemptions from the requirement
for employees under the intra-company transfer route, who only
have to meet the requirement if they intend to stay in the country
for more than three years. There is also a transitional exemption
for football players entering under Tier 5 who do not have to
meet the requirement for 12 months, after which they must pass
a test and transfer to Tier 2, should they wish to remain in the
UK. The language requirement for religious workers under Tier
2 is also set higher than that for other applicants, at B2 level.
Applicants can meet the English language requirement in one of
three ways. They can either be a national of a majority English
speaking country, pass an English test at a specified level, or
hold a degree that was taught in English and is equivalent to
a UK Bachelors degree or above.
106. NASSCOM welcomed the three-year suspension
of the English language requirement for intra-company transfer
employees, stating that there would be significant time and cost
implications in requiring them to pass a test on arrival.[124]
107. Some witnesses rejected the idea that knowledge
of English was necessary to work in the UK. The Chinese Immigration
Concern Committee stated that "there is little or no requirement
in command of English language to cook Chinese food. The kitchens
in British Chinese catering are traditionally organised and operated
in a Chinese language environment".[125]
This view was echoed during the Committee's roundtable discussion
held with community representatives in Sylhet, Bangladesh. Participants
argued that the basic education of many Bangladeshi chefs was
only at primary school level and questioned how chefs could be
expected to gain formal qualifications in English.[126]
108. The National Campaign for the Arts presented
a similar argument:
Some flexibility is also required for the English
language skills requirement, which, especially in the field of
dance for instance, is not essential to the migrant's ability
to perform in the job. (It is interesting to note that Rudolf
Nureyev is unlikely to have met the requirement had it been in
force in his day.) A more pragmatic approach, perhaps instituting
a test after a migrant has been here 12 months, would make more
sense, allowing the company and the individual time to invest
in assimilation.[127]
109. The trade union, Unite, argued that the
requirement introduced "bias in favour of migrants from English
speaking countries and against those from the developing world".[128]
Unite recommended that the Government restore funding to ESOL
[English for Speakers of Other Languages] courses in order to
increase access to English language learning within the UK. The
Chinese Immigration Concern Committee proposed "in-country
compulsory English classes for migrants, provided by the employer".[129]
110. The Church of England objected to the higher
level of English language required for religious workers under
Tier 2. The Government states that this is "because of the
need to communicate with worshippers".[130]
The Church of England argued that:
It is hard to see that this rule is an effective
or proportionate way to achieve any objective except to make it
harder for many Christians and other perfectly benign ministers
of religion to come here, and making it more difficult for the
churches to maintain their ministry to indigenous congregations
and migrant communities.[131]
It recommended that the language requirement be brought
into line with the (lower) requirement for other workers in Tier
2.[132]
111. We questioned the Minister for Borders and
Immigration on the reasons behind the 12 month exemption for footballers
from the English language requirement. Phil Woolas MP told us
that:
The football profession is covered by international
rules and the transfer window and the argument they put to us
was that the existence of the transfer window, which is not within
their power to change, required a different route for their members,
so we allowed a change to have "transferring country"
from Tier 5 to Tier 2 in that one case.[133]
112. Although we welcome the aim of transparency
and the introduction of objective criteria under the Points Based
System, measuring skill primarily on criteria such as past earnings
or academic qualifications gives undue priority to easily-quantifiable
attributes and ignores ability or experience. For instance, it
seems spurious that a Master's graduate fresh from university
on their first job should qualify as a 'highly-skilled migrant'
under Tier 1, whereas a businessperson of 25 years' global experience
and earnings of hundreds of thousands of pounds but without a
Master's degree would not.
113. In particular, the overemphasis on formal
qualifications at the expense of professional experience or training
is arbitrary and unfair. Practitioners of several very skilled
professions under Tier 2such as ballet dancers, chefs or
musiciansoften do not hold formal qualifications. Rather
than including such professions on a shortage occupation list,
the Government should draw up a list of high-level training or
professional experience, by sector, which it will accept as a
substitute for academic qualifications.
114. With respect to the maintenance requirement,
we agree with the Government that there is no circumventing the
fact that there is a set cost of living in the UK, regardless
of whether meeting that cost is more or less onerous on migrants
from different parts of the world. We therefore consider that
requiring migrants to be able to support themselves at the rate
of £800 for each month they are in the UK is not discriminatory,
and that it is reasonable to measure this by setting a maintenance
sum which migrants must demonstrate that they have saved prior
to entry.
115. We welcome the Government's assurances
that salary requirements will be adjusted to allow for the varying
earning capacity of different countries using inflators. This
is important to guard against discrimination against migrants
from developing countries.
116. We accept that there are a small minority
of specialised professionssuch as chefs in international
restaurants, or international artistsin which knowledge
of the English language may not be vital to the core tasks of
the job. We are nevertheless of the view that knowledge of English
is necessary for living in and integrating into British society,
and do not therefore consider it unreasonable for the Government
to make a basic level of English language a prerequisite for migration
to this country.
117. We are at a loss to understand why specific
exemption from the English language requirement has been made
for footballers and not for any other occupation which requires
international mobility. Although we acknowledge that the business
of international transfers is transacted quickly, and that players
themselves may have little control over their move, we do not
consider a basic level of competence in English to be beyond the
reach of footballers, either in terms of ability or of time. We
therefore conclude this to be a case where money has spoken louder
than merit and urge the Government to reverse its exemption.
118. We agree with the Government that it
is reasonable to expect ministers of religion to possess a higher
than basic level of English language in order to communicate with
their worshippers, and consider that their fluency in English
ought to be on a similar level to that required from academics
and other similarly skilled migrants.
119. We note that there is value in the proposition
made by the Chinese Immigration Concern Committee and Unite that
English classes could be provided in-country, but we consider
that this should be an additional, not an alternative, requirement.
We recommend that the Government give consideration to how better
provision of language teaching for migrants could be made in the
UK, including placing a heavier responsibility onto employers
to facilitate and pay for it.
89 Home Office, A points-based system: making migration
work for Britain, Cm 6741, March 2006, p.1 Back
90
Q 108 Back
91
Q2 Back
92
Ev 151 Back
93
Standard Occupational Classification 2000 Back
94
Migration Advisory Committee, Skilled, Shortage, Sensible:
The recommended shortage occupation lists for the UK and Scotland,
September 2008, p.13 Back
95
Migration Advisory Committee, Skilled, Shortage, Sensible:
The recommended shortage occupation lists for the UK and Scotland,
September 2008, p.91 Back
96
Q 393 Back
97
Q 392 Back
98
Ev 97 Back
99
Home Office, A points-based system: making migration work for
Britain, Cm 6741, March 2006, p.44 Back
100
Ev 96 Back
101
Annex A [India and Bangladesh visit notes] Back
102
Ev 89 Back
103
Q 323 Back
104
Ev 172 Back
105
Ev 172 Back
106
Ev 97 Back
107
Qq 419-420 Back
108
Q 54 Back
109
Ev 209 Back
110
Annex A [India and Bangladesh visit notes] Back
111
Ev 98 Back
112
Ev 240 Back
113
Ev 257 Back
114
UK Border Agency website: http://www.ukba.homeoffice.gov.uk/workingintheuk/
Back
115
Ev 79 Back
116
Ev 241 Back
117
Q 425. The UK Border Agency provided a list of the multipliers
it uses: Ev 249. Back
118
Q 427 Back
119
Ev 247 Back
120
Q 426 Back
121
Ev 247 Back
122
Q 149 [John Cridland] Back
123
UK Border Agency Tier 2 Policy Guidance describes the standard
as "being able to understand and use familiar everyday expressions
and very basic phrases, to introduce himself/herself and others,
and to ask and answer questions about very basic personal details",
UK Border Agency, Tier 2 of the Points Based System - Policy
Guidance, March 2009, version 03/09, p.31 Back
124
Ev 122 Back
125
Ev 90 Back
126
Annex A [India and Bangladesh visit notes] Back
127
Ev 172 Back
128
Ev 109 Back
129
Ev 90 Back
130
UK Border Agency, Tier 2 of the Points Based System - Policy
Guidance, March 2009, version 03/09, p.31 Back
131
Ev 235 Back
132
Ev 237 Back
133
Q 456 Back
|