House of Commons - Managing Migration: The Points Based System

Managing Migration: The Points Based System - Home Affairs Committee Contents

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 5231—motor mechanics—only 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 3414—dancers 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 degree—however, 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 this—insufficient 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 2—such as ballet dancers, chefs or musicians—often 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 professions—such as chefs in international restaurants, or international artists—in 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