Memorandum submitted by the Immigration
Law Practitioners Association (ILPA)
INTRODUCTION
1. ILPA is a professional association with
some 1,000 members, who are barristers, solicitors and advocates
practising in all aspects of immigration, asylum and nationality
law. Academics, non-government organisations and others working
in this field are also members. ILPA exists to promote and improve
the giving of advice on immigration and asylum, through training,
disseminating information and providing evidence-based research
and opinion. ILPA is represented on numerous government and other
stakeholder and advisory groups in including the UK Border Agency
Corporate Stakeholder Group, and the UK Border Agency Employers
Task Force. An ILPA working group meets regularly with those designing
and implementing the Points-Based system and UK Border Agency
officials have participated in ILPA training sessions and members'
meetings about the new system. ILPA regularly gives written and
oral evidence to parliamentary committees.
2. A selection of ILPA's broader work on this
topic is found in the previously submitted material annexed to
this report. The annexed material is all in the public domain
and ILPA consents to this submission being made public.
EXECUTIVE SUMMARY
3. In this response we concentrate on the
following matters from the terms of reference for the Committee's
enquiry:
— the impact on certain sectors of
phasing out sector-specific schemes, including the Seasonal Agricultural
Worker's Scheme and Sectors Based Schemes;
— the effect of the proposed changes
on the education, sports and culture sectors;
— proposed sponsorship arrangements,
including the impact of fees and greater responsibility on small
and medium enterprises; and
— the immigration-related provisions
of the Government's draft Citizenship, Immigration and Borders
Bill (when available).
4. We deal with these in four specific contexts:
— implementation, including the consultation
process and time-scale;
— maintenance and general grounds of
refusal and discrimination.
5. We have dealt with a number of matters
raised by other terms of reference in previously published submissions
(annexed hereto) and the final part of the text explains where
to find this information in the Annexes and highlights subsequent
developments.
THE CONSULTATION
PROCESS AND
IMPLEMENTATION
6. ILPA is concerned that the Government
ignored the findings of its consultation into the Points-Based
System and failed to consult at all on some of the most fundamental
aspects of the system.
7. By way of example, in the Command Paper "A
Points-Based System: Making Migration Work for Britain" only
2% of those who responded considered age to be the most important
attribute for Tier 1 Highly Skilled Migrants and only 1% considered
previous salary to be most important. 64% considered skills to
be most important and 40% work experience.[12]
Yet 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 (experience
being one of the key skill generators). ILPA does not believe
that Tier 1 enables the most highly skilled migrants to come to
the UK and is focussed more on young graduates.
8. The Government failed to consult on its
intentions to introduce the new mandatory grounds of refusal contained
in HC321, which it has already had to correct and/or amend several
times. For further information on this matter please see ILPA's
briefing and general comments appended hereto.
9. ILPA has highlighted that Tier 5 Youth
Mobility Scheme is expressly closed to young people from any country
that appears on the Government's visa national list.[13]
The Government failed to consult on this issue, which is of significant
national and international importance.
10. ILPA is concerned that the Government
has failed to take account of the responses to its Equality Impact
Assessments and that many aspects of the Points Based System are
discriminatory and/or will have a disproportionately negative
impact on a number of groups and communities. For further details
please refer to ILPA's responses to the relevant Equality Impact
Assessments and its response to the consultation on Tier 1 appended
hereto.
11. In general the Points-Based System is
being rolled out in great haste. In so doing the Government is
missing the opportunity to design and implement the very best
immigration system in the world. ILPA members report a lack of
confidence in the system and in particular those set out in the
following paragraphs.
12. UK businesses are not applying to become
sponsors under the Points-Based system in the numbers anticipated
by the Home Office. ILPA members report that businesses are confused
by the sponsor guidance notes which are incomplete do not understand
many of their obligations under the new system and do not wish
to take on the burden of controlling the immigration system to
the extent required, particularly in the absence of full and accurate
guidance.
13. The constant flow of publications, changes,
amendments and corrections is unsettling for applicants and those
advising them.
14. The new system is being delivered by
way of changes to the Immigration Rules, rather than through simple
to read guidance notes and this is overly complex, extremely difficult
to understand and requires parliamentary intervention to amend
errors.
15. The new system was heralded as "on-line"
based yet Tier 1 application form is still hard copy only and
the design and usability of the on-line sponsor application form
is unsophisticated.
16. The new system is being promoted as
providing greater clarity and being easier to understand and use,
both for migrants and sponsors. This is not the case. By way of
example the new application form for Tier 1 (General) highly skilled
migrants is some 66 pages long. The guidance is 41 pages. Similarly
we understand that the revised guidance for sponsors under the
other Tiers of the PBS is approximately 150 pages (not including
the actual criteria for migrants applying under those Tiers).
Whilst ILPA of course welcomes comprehensive guidance for applications,
the notion that Tier 1 (General) is more straightforward than
the Highly Skilled Migrant Programme is replaced is a misnomer.
17. There has been insufficient time for
key details of the scheme to be fully considered in the depth
required and policy on some issues is being determined in great
haste immediately prior to "go live". This has impacted
upon UK Border Agency's ability to publish information in advance
of Tiers/sub-categories being implemented. The actual documentary
requirements for the PBS are contained in the guidance and advance
publication of guidance notes prior to "go live" of
a category is critical to enable applicants to prepare and to
enable any feedback to be given before the guidance becomes operative.
Tier 1 (General) went live on 29 February (for applicants within
the UK) and the guidance was not released until 29th February.
Despite ILPA (and others) strenuously raising concerns on this
timing issue, Tier 1 Entrepreneur, Investor and Post-study worker
guidance was also not published until these sub-categories actually
opened, on 30 June 2008. This is unacceptable.
OBJECTIVITY (GENERAL)
18. ILPA does not consider that an immigration
system based purely on objective criteria can deliver the immigrants
the UK wishes to attract for economic, cultural and educational
reasons.
19. ILPA does not agree that the Points-Based
System is fair, transparent and objective. Under the system Entry
Clearance Officers decide who can and who cannot come to the UK
by reference to the evidence which the individual is able to produce.
The Immigration Rules now require an applicant to provide "specified"
documentation. The effect of this is that rather than demonstrating
that they meet an attribute criterion, such as proving that they
hold a degree, the applicant must in fact prove that they hold
a particular type of document regarding that attribute. For instance,
under Tier 1 a highly skilled applicant who original degree certificate
has been misplaced and whose university does not issue duplicates
will be refused a Tier 1 visa even if he produced an original
transcript of his degree results with an original letter from
his university which were accepted as genuine by the ECO.
209. ILPA is concerned that the pursuit
of perceived "objectivity" has become the driver of
the Points-Based System, at the expense of other important policy
objectives. For example, it would appear that significant skills
tests such as work experience and skills were sacrificed in this
pursuit. ILPA is further concerned that the pursuit of objectivity
has actually generated a "form over substance" approach
to consideration of applications. In extremis, "objectivity"
can create a focus on administrative ease rather than merit.
TIER 1
Term of reference of the enquiry: The implementation
of Tier 1 (highly skilled migrants).
Objectivity (highly skilled)
21. As stated above ILPA does not consider
that truly highly skilled individuals can or should be assessed
solely in terms of age, past earnings and qualifications.
22. Entry under Tier 1 (General) is not possible
without a bachelor's degree. There are many very highly skilled
individuals who do not possess a degree. They will not be able
to enter the UK at all under Tier 1 (General) and as many of the
most high profile examples are self-employed rather than employer
Tier 2/work permit schemes are also unsuitable for them (hypothetical
examples that have previously been advanced to illustrate this
point include Bill Gates and Nicole Kidman). A 22 year-old graduate
with a bachelor's degree from a UK institution who has earned
£23,000 in his first 12 months of work experience ever 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 bachelors
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,
before November 2006, where points could be awarded for extensive
experience (or indeed for an exceptionally high salary) which
would compensate for the lack of degree—particularly for
older applicants who began their careers at a time when university
education was less prevalent.
23. The documentation requirements under Tier
1 are confusing and unduly administrative and make the scheme
almost inaccessible for many people. For instance, in order to
evidence past earnings the applicant cannot rely solely on his
wage slips even if the caseworker accepts without any doubt that
the wage slips are genuine. The applicant must provide other evidence
such as bank statements or employer's letter evidencing exactly
what the wage slips state. ILPA members often report a refusal
decision where the caseworker has failed to appreciate that the
sum in the wage slip may differ from the sum deposited into the
individual's bank account for a whole range of perfectly acceptable
reasons. It is also not always possible for an applicant to approach
his employer for a letter to the Home Office that will lead the
employer to conclude that the employee wishes to leave the employment.
24. ILPA members are aware of occasions when
a Tier 1 caseworker has telephoned a large multinational organisation
to verify the evidence of previous earnings submitted with the
application and has simply asked the receptionist if the applicant
works at the entity, relying on information informally provided
by a receptionist who is unlikely to know the individual concerned
when making a decision.
25. There is grave uncertainty for Tier
1 applicants and indeed applicants under any immigration route
into the UK as to how they may secure Indefinite Leave to Remain
(ILR) in the UK. For almost three years ILPA has requested clear
and unequivocal guidance from the Home Office as to the level
of permissible absence from the UK without effecting their entitlement
to ILR. ILPA members report that the Home Office is refusing applications
for ILR where it deems that the individual has spent too much
time outside the UK in the qualifying period and it is wholly
inappropriate that such negative life-changing decisions should
be taken in the absence of clear guidance.
Maintenance
26. Under Tier 1, applicants are required
to demonstrate that they not only satisfy the appropriate attributes
tests, but that they also have sufficient funds to maintain themselves
and their families in the UK. As you may be aware the requirement
that an applicant can maintain and accommodate themselves and
any dependants is not new. However, historically it has been based
on the circumstances of the individual migrant, recognising that
what is "sufficient" depends upon each individual's
own expenses, lifestyle, and prospects. The new maintenance test
is arbitrary and impractical, creating perverse results. An applicant
outside the UK must demonstrate that they have £2,800 for
themselves and £1,600 for each family member (for a typical
family of four this would therefore be £7,600). Further they
must demonstrate that they have held such a sum for at least the
last three months. Moreover, they must demonstrate that that sum
has been in their account for every single day of the last
three months.
27. 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. This problem
of arbitrary documentary requirements will become even more pronounced
at the time of extensions, once applicants have successfully established
themselves in the UK for three years and have been clearly maintaining
their family throughout yet do not have the required form of evidence
at the time of application
28. The Government failed to consult on
the new maintenance test or give any advance warning, which resulted
in the Government having to issue an almost immediate transitional
measure for those already in the process of applying from within
the UK, to prevent such migrants from being unreasonably affected
by the change. It is notable that transitional arrangements were
only put in place for applicants within the UK. Many applicants
outside the UK are most seriously affected by the introduction
of the new maintenance tests; due to administrative delay by UKBA
in considerations of HSMP applications (now taking approximately
four months rather than the previous typical 4 week processing
time); applicants who submitted HSMP application (incurring fees)
several months ago on the understanding that they were applying
under the terms of the scheme in place at the time, only to find
that having at had their HSMP applications approved their entry
clearance applications will fall for refusal as they must now
meet additional maintenance requirements.
29. The test discriminates against those
highly skilled applicants from the less developed countries. For
instance, a highly educated, highly skilled surgeon from Ghana
who has reached the very top of his profession and who has maintained
and accommodated himself and his wife and two children all his
life, would have to show that he has held in his bank account
for at least three months, the sum of £7,600, which my the
UK Border Agency's own measures is equivalent in real terms to
£83,600, regardless of whether or not he has an offer
of a post in the UK at the time of applying. It is notable that
the skills (attributes' thresholds under Tier 1 (general) are
no different to those under the post November 2006 HSMP. ILPA
is concerned that highly skilled migrants who would have been
admitted previously, and in respect of whom there is, we understand,
no evidence or indeed research identifying that there has been
any failure to adequately maintain and accommodate themselves,
will now be refused entry based on arbitrary financial thresholds
and these thresholds, without any sound evidential basis, would
appear to operate in a discriminatory manner.
30. ILPA has provided further information
to the Government already on this matter and its belief that Tier
1 discriminates on the grounds of race, age and sex.[14]
The UK Border Agency may not agree with ILPA but it is of note
that their impact assessment does not address these matters. It
is also noteworthy that the deadline for comments on the impact
assessment came after the relevant Statement of Changes in the
Immigration Rules had been published.
SECTOR SPECIFIC
SCHEMES
Term of reference of the enquiry: The impact on
certain sectors of phasing out sector-specific schemes, including
the Seasonal Agricultural Worker's scheme and Sectors Based Schemes.
31. ILPA is very concerned that the Government
presently has no plans to activate Tier 3 or lift the restrictions
currently in place in relation to the Bulgarian and Romanian workforce.
32. ILPA's members are reporting that many of
their business clients are facing severe difficulties already
in recruiting workers in the agricultural and catering sectors.
33. The principle that highly skilled workers
should have a route to settlement while others should not risks
replacing "highly desired skills", those that the UK
needs, with "highly skilled". More fundamentally, failing
to provide a route to settlement may leave these workers more
open to exploitation and abuse. The government has agreed to retain
the existing domestic worker category, with its route to settlement
for two years and then to review it, rather than to abolish it
as part of the introduction of the Points-Based system in recognition
of the need to provide protection for these very vulnerable workers.
The question of the extent to which the more general principle
that the highly skilled should have a route to settlement while
others will not, creates risks of exploitation is worthy of study
by the Committee in this enquiry.
EDUCATION, SPORTS
AND CULTURE
SECTOR
Terms of reference of the enquiry: The impact
of the proposed changes on the education, sports and culture sectors
34. The Points Based System fails to address
the UK's desire to attract the very best individuals in the sports
and entertainment industry.
35. The system does not cater for writers and
artists in any way, who until 30 June 2008 had their own immigration
category because of the very exceptional and specific nature of
their work. Those whose contributions are measured in terms of
creativity and culture have been over-looked in the new system
in favour of box-ticking economic assessment criteria. Financial
contribution can be more easily measured and therefore appeals
to the "objectivity" focus of the PBS, whereas the arts
arguable make a more profound and important contribution to the
richness of life in the UK but are more complex administratively
and evidentially to measure
36. Tier 5 temporary workers will not enable
artists of international repute to enter the UK easily. Such artists
who may be entering the UK for promotional reasons must be permitted
easy access to the UK in order for the UK to remain a world leader
in cultural and artistic matters.
SPONSORSHIP
Term of reference of the enquiry: proposed sponsorship
arrangements, including the impact of fees and greater responsibility
on small and medium enterprises.
37. Many ILPA members report that the Sponsor
Registration process is inadequate and unclear.
38. The sponsorship licence application process
requires the potential sponsor to demonstrate their immigration
compliance record. Given the parallel introduction of civil penalties,
potential sponsors are required to carry out internal audits of
their employees and systems to ensure that risk of financial penalty
is minimised.
39. There is insufficient published information
relating to the documentation required to support the sponsorship
licence application process, the application process in itself
and the obligations and criteria that the potential sponsor ise
required to meet once Tier 2 goes live.
40. Potential sponsors are reporting difficulties
in assigning the central positions of Authorised Officer, Key
Contact and Level 1 User because there is no detail as to how
the scheme will work in practice. Although the duties and responsibilities
of each of these positions have been detailed, the penalties for
failing in these responsibilities has yet to be clarified. Without
such clarification, potential sponsors cannot allocate the positions
internally.
41. As part of the sponsorship licence application
process, potential sponsors are required to demonstrate how they
will meet new obligations of Tier 2 sponsorship. The UK Border
Agency has failed to take into account commercial reality when
setting out timelines for the new system. In particular, the requirement
to report on personal and work changes of sponsored employees
require significant amendments, purchase and development of Human
Resources Information Systems. This, in turn, requires internal
budget allocation which, in most cases, requires the potential
sponsor to seek additional internal financial resources. This,
and the development work required, takes time which is reflected
in the current low take up of sponsorship licences. There is real
fear that the UK Border Agency does not have the resources to
meet need and issue sponsorship licences before the Tier 2 go
live date once potential sponsors have completed the internal
work required before the sponsorship licence application can be
submitted.
42. The industry Codes of Practice that
are detailed in UK Border Agency guidance on the new system have
yet to be published and, therefore, sponsors are unclear as to
the criteria of the new system.
43. Through its working party on the Points-Based
System have consistently lobbied UKBA to review all aspects of
the sponsor system. Sponsors were not warned that the system would
be so onerous and time-consuming in terms of their involvement.
Sponsors were not warned that they would have to report on their
migrant workers and ILPA members report that they sense considerable
distaste from the business community that "good behaviour"
in terms of reporting illegal migrant activity, or perceived illegal
migrant activity will mean a reduction in civil penalties.[15]
44. ILPA is opposed to the introduction
of any maintenance test for Tier 2. Our understanding is that
the rationale of the Tier 2 maintenance test is to ensure that
foreign nationals have sufficient personal financial resources
to live in the UK in the first month after their arrival and prior
to receiving their first salary from the UK sponsoring employer.
45. The employer needs to undertake a rigorous
application process to gain a licence to sponsor under Tier 2
and will, thereafter, be subject to audit at any time. In issuing
the licence, the UK Border Agency will be confirming the trustworthiness
of the employer and its suitability to issue certificates of sponsorship.
As such, the maintenance test of Tier 2 suggests that the UK Border
Agency will be approving sponsorship licence applications for
employers that they believe will not financially support their
foreign national workforce in the first month of arrival in the
UK. The maintenance test, therefore, significantly undermines
the sponsorship licence application process and rationale. It
also serves no social purpose as foreign nationals who have entered
the UK under Tier 2 will not be permitted to claim public benefits
in any event.
46. Many UK employers currently financially
support their foreign national workforce on first arrival in the
UK in many ways: provision of accommodation; payment of immediate
allowances; golden handshake on arrival etc. Requiring the individual
to have a minimum credit amount in their personal bank account
prior to a successful entry clearance application will, in many
cases, require the UK employer to transfer funds to the individual
prior to the UK employment commencing. This in itself represents
a significant risk to the UK employer but, most importantly, encourages
non-compliant activity because the employer loses the valuable
link between salary/allowances and immigration status (ie that
UK salary/allowances will only be made on satisfactory production
on valid work authorisation). As such, the maintenance test of
Tier 2 undermines the immigration system as a whole. Finally,
the maintenance test is flawed in any event as there is no guarantee
that the foreign national will be in a position to access the
evidenced funds within the first month of arrival in the UK if,
for example, there are currency exchange controls applicable in
the country of origin. For these reasons, the Tier 2 maintenance
test is both wholly inappropriate, undermines the new system and
represents a significantly onerous obligation on the employer
who will have already undertaken a significant assessment with
regard to sponsorship suitability by the UK Border Agency.
CITIZENSHIP IMMIGRATION
AND BORDERS
BILL
Term of reference of the enquiry: the immigration-related
provisions of the Government's draft Citizenship, Immigration
and Borders Bill (when available).
47. ILPA is unable to comment on this at
this time because we have not seen the draft Citizenship, Immigration
and Borders Bill. ILPA would refer the Committee to our response
to the UK Border Agency consultation on Simplification, our submissions
to Lord Goldsmith's Citizenship Review and our response to the
UK Border Agency's A Path to Citizenship consultation, all of
which are appended hereto.
MATERIAL RELEVANT
TO OTHER
TERMS OF
REFERENCE IN
PREVIOUSLY PUBLISHED
WORK
48. ILPA would like to take this opportunity
to bring to the attention of the Committee our existing material
relating to the points based system, which are annexed hereto.
— Migration Advisory Committee Call
for Evidence—Response of the Immigration Law Practitioners'
Association April 2008
— Equality Impact Assessment: Points
Based System Youth Mobility Scheme (Tier 5) ILPA Response March
2008
— ILPA response to consultation on
Path to Citizenship Green Paper May 2008
— ILPA's response to the Equality Impact
Assessment: Points-Based System Highly Skilled Tier January 2008
— ILPA Briefing for the Joint Committee
on Human Rights Changes to the General Grounds for Refusal in
the Immigration Rules to be introduced by Statement of Changes
in the Immigration Rules HC 321 February 2008
— Points Based System fees—ILPA
response to consultation 9 November 2007
— Lord Goldmith's Citizenship Review:
The Different Categories of British Nationality ILPA submission
December 2007
— Consultation on Simplifying Immigration
Law ILPA Response August 2007
— ILPA Briefing on a Points-Based System:
Making Migration Work for Britain March 2006
We should be pleased to make any of the ILPA
reports and responses to which reference is made in this submission
available to the Committee.
July 2008
12 Page 44 "A Points-Based System: Making Migration
Work for Britain" March 2006. Back
13
See ILPA's Response to the Equality Impact Assessment: Points
Based System Youth Mobility Scheme (Tier 5)-March 2008 and the
Government's Tier 5 "Statement of Intent"-June 2006. Back
14
See ILPA's response to the Equality Impact Assessment on Tier
1 (January 2008), annexed hereto. Back
15
See "Comprehensive Guide for Employers" February 2008. Back
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