Following the evidence given on 17 July 2008,
we now submit a supplementary memorandum, to further clarify matters
raised during the evidence and providing additional relevant information
to assist you.
ILPA was founded in 1984 and incorporated as
a company in 1989. It is ILPA's mandate is set out in summary
form on the front page of our website, www.ilpa.org.uk. The full
version is set out in our Memorandum and Articles of Association
which states:
Membership of ILPA is open to those who qualify
in accordance with articles 3 and 4 of the articles of association
which state as follows:
A full copy of the Memorandum and Articles of
Association is available on request.
ILPA has some 1000 members but, as the above
indicates, both individuals and organisations are members. Organisation
members range from small companies of a few people to very large
city law firms. All applications for membership must be approved
by the Executive Committee.
ILPA also has a complaints procedure and the
Executive Committee has the power to investigate complaints and
can use the sanctions of suspension of membership or expulsion
against those found to have behaved in a way that is "injurious
to the interests of ILPA".
The President and members of the Executive Committee
are elected annually by the membership. Appointment of convenors
of specialist subcommittees are approved by the Executive Committee
which also approves all submissions and evidence presented in
the name of ILPA.
A list of Executive Committee members, members
of subcommittees and those who represent ILPA at stakeholder and
other meetings appears on our website, www.ilpa.org.uk in the
"Members" section (which is publicly accessible). Full
details are given in ILPA's Annual Report, a copy of which is
appended hereto. Those who represent ILPA at regular "stakeholder"
and other meetings report back to ILPA and reports are circulated
via ILPA's monthly mailing to members. A full list of all those
who have represented ILPA is provided in ILPA's Annual Report.
The training pages of the website also list those delivering training
on behalf of ILPA. Again, a full list of those who have delivered
training for ILPA is listed in the Annual Report. As to members
of ILPA not holding positions of responsibility within ILPA, the
majority of members of ILPA are listed in our Directory of Members.
At any one time, the most up to date version of the Directory
appears on the website, although it is collated in hard copy regularly.
It is up to members whether they are listed in the Directory;
the majority elect to be listed but members of the judiciary or
academics, or, for example, retired members using their home address,
may chose not to be listed.
The vast majority of ILPA's income comes from
membership fees and revenue from training. A copy of our most
recent set of audited accounts are enclosed. In addition, funding
is obtained for specific projects. This is set out in the Annual
Report. At the moment, ILPA receives external funding from the
Joseph Rowntree Charitable Trust, contributing towards the salary
of the Legal Officer and the work undertaken by the Legal Officer
to disseminate information to charitable and voluntary organisations,
including migrant and refugee community organisations. Examples
of this work will be found on the Info Service part of the website.
In the past year ILPA has also received funding from the Nuffield
Foundation to produce our research When is a child not a child:
Age Disputes and the Process of Age Assessment' and from the Legal
Services Commission to produce "The Detained Fast Track:
a best practice guide and to deliver training free at point of
delivery to those contracted with the Legal Services to provide
legal services within the Detained Fast Track".
Matters not eligible for legal aid are set out
in section 23 of the Access to Justice Act 1999, and Schedule
2 (Excluded Services) to that Act. Paragraph 1 of Schedule lists
inter alia:
"|matters of company or partnership law;
and other matters arising out of the carrying on of a business"
The effect of this is that business immigration services
are excluded, thus the majority of the matters falling within
the Points-Based System are not eligible for legal aid, whatever
the merits of the case or the means of the individual or organisation.
Addressing the problems of the current system
The command paper, "A Points-Based System
(PBS): making migration work for Britain" (published March
2006) set out the key advances the PBS was intended to achieve.
These were principally:
— better identifying and attracting
of migrants who have most to contribute to the UK;
— a more efficient, transparent and objective
application process;
— improved compliance and reduced scope
for abuse.[58]
The document went on to set out the key tests
for the PBS of objectivity, transparency, operability, usability,
flexibility, robustness, cost effectiveness and compatibility.
Throughout the development of the PBS since that date, UKBA has
placed tremendous emphasis in particular on seeking to create
a streamlined, transparent and objective system, rationalising
multiple routes of entry into a single points based system with
the intention that that system will be easy to use and understand
by employers, migrants and the general public. The PBS does not
achieve these goals.
The attempt at streamlining the system and reducing
the number of routes of entry cannot be said to have achieved
when the PBS is divided into five tiers, each of which is divided
into further sub-tiers, many of which are further divided into
sub-sub-tiers creating approximately 35 categories within the
PBS, with many additional categories remaining in place outside
the PBS. It is a necessary part of any effective immigration system
that there are relatively sophisticated tools for assessing eligibility
for leave to enter/remain in the UK for a wide range of appropriate
purposes and accordingly ILPA believes that it is necessary to
have a significant number of categories of entry to the UK; the
aim of simply trying to reduce the number of categories in an
attempt to make the system appear more straightforward does not
achieve the substantive objectives of an effective immigration
system in any event. In several respects the PBS has replaced
a finely calibrated, sophisticated system with a rather blunt
clumsy instrument, less able to accommodate the migrants who will
most benefit Britain or exclude those who will not. It is notable
that several categories under the PBS are not truly points-based,
insofar as there are no "tradable" points involved (the
applicant cannot score points on some attributes to contribute
for a lack of points on others), the mandatory criteria have simply
been allocated a number of points in order to meet the label of
a points based system whilst actually retaining the approach of
set criteria prevailing under the immigration rules historically.
With regard to making the system more streamlined
and easy to understand, this is simply not the case under the
PBS. For example, the employer guidance as a sponsor is some 130
pages long, with additional supplementary information required
from the website (for example in relation to how Human Resources
processes and compliance is assessed for eligibility to register
as a sponsor). In addition there are further essential tools to
which an employer sponsor must refer, including the codes of practice
(published only in late September 2008) and the shortage occupation
lists (published 9 September 2008), both of which run into hundreds
of pages. Further guidance, including the guidance relating to
migrants actually applying for leave to enter/remain in the UK
(ie. the points element of the PBS for Tiers 2, 4 and 5) remains
to be published and will be an additional factor which employer
sponsors will need to appraise themselves of before issuing a
certificate of sponsorship (CoS) to any migrant.
The Tier 1 application form for highly skilled
migrants now runs to a remarkable 65 pages (for in-country applicants),
with out of country applicants having an even more confusing array
of different forms that they must complete—in all cases
two separate forms and in some cases three, with different application
procedures in place at different British diplomatic posts around
the world. In addition, dependent family members must now all
apply on separate forms (whereas under the Highly Skilled Migrants
Programme, innovator, business person and investor categories,
that have now been replaced by Tier 1, family members could be
included on the principal's application form).
Attracting only the migrants Britain needs
This is a further misnomer. The new PBS makes
no greater attempt than the current system to attract and facilitate
admission to only the migrants Britain needs and is unable to
make any proper assessment of skills or any intelligent protection
of the resident labour market.
The Consultation UKBA carried out regarding Tier
1 indicated that the most important factors for employers when
recruiting were skills and experience (87% of respondents specified
work experience as either being "most" or "more"
important. 91% rated skills as "most" or "more"
important), and the least important factors were age and previous
salary. Yet in producing the criteria for the new Tier 1 (General),
the UK government created criteria for attributes based on age,
qualifications and previous salary alone. Indeed, the criteria
make it impossible to qualify under Tier 1 (General) unless the
applicant holds at least a bachelor's degree, regardless of the
decades of invaluable and high profile experience an applicant
may have to offer to the UK.
The attributes (skills) requirements for Tier
1 (General) migrants are no higher than under the highly skilled
migrant programme, indeed they are especially identical to the
revised HSMP criteria (from 8 November 2006), with the exception
of adding the highly onerous maintenance requirements. This has
the affect of making no alternation to admission to the UK based
on skills but restricts entry to the UK for skilled individuals
from less affluent countries, as explained further below.
Under Tier 2 of the PBS, there has in fact been
a reduction in the skills criteria. Under the work permit scheme
the absolute minimum level of skills permitted is that the job
is at NVQ level three and necessitates at least three years' experience
at that level to be able to perform the role. Under the Tier 2
skills criteria the minimum requirement is that the job must be
at NVQ level 3 or above. Accordingly, lower skilled posts can
be filled under Tier 2 of the PBS than can currently be the subject
of a successful work permit application.
Neither does PBS ensure that jobs are first
made available to resident workers significantly more than under
the current work permit scheme. The work permit scheme requires
jobs to be advertised in the European Economic Area (EEA) for
four weeks. The PBS requires jobs to be advertised for two weeks
(or one week if the salary is over £40,000).
In practical terms there are also serious disadvantages
in the operation of the resident labour market test under the
PBS as there is no provision for being able to waive the advertising
requirements in clearly meritorious circumstances where advertising
the post would be inappropriate (for example where the skills
are particularly unusual, the position is senior board level,
it is known that there are only a handful of individuals in the
world capable of performing the role, or it is highly commercially
sensitive.
To satisfy the resident labour market test under
the PBS the advertisement can either be placed in a medium recognized
as acceptable under the recently published Codes of Practice or,
regardless of the sector, the advertisement can be placed in JobCentre
Plus. An investment bank recruiting MBA graduates or board level
roles would be most unlikely to use JobCentre Plus if genuinely
seeking to attract resident applicants, yet this is the one medium
which is acceptable for all sectors.
Further, due to the highly onerous nature of
sponsorship, many employers who regularly used the work permit
scheme are applying for their staff under Tier 1 (General), thus
the vacancies are not necessarily made known to the resident work
force.
Improved compliance and reduced scope for abuse
It is difficult to envisage how the allocation
of points to criteria reduces the scope for abuse or improves
compliance. In particular, it is difficult to envisage how such
objectives will be achieved under Tiers 2-5 by a system which
essentially represents self-certification by employers and educational
establishments.
The vast majority of employers who are concerned
to ensure compliance will face highly onerous duties and additional
costs in ensuring they meet these duties, which they will seek
to carry out with great diligence to minimise risk (as indeed
they do under the current work permit scheme). Whereas employers
who are not concerned about compliance to the same extent will
be able to issue CoS knowing that the chances of an incorrectly
issues CoS being detected after the event may well be slim.
It is notable that the UKBA is abandoning many
of the elements of the PBS checks, including pre-registration
visits to sponsor applicants in the majority of cases (previously
anticipated as at least 90% of applicants), largely due it appears
to the relentless pursuance of the timetable, over and above the
importance of ensuring that these changes, which represent the
greatest changes in UK immigration in 45 years, are thoroughly
considered and tested prior to implementation.
Maintenance
Under all Tier 1 categories (except investor),
Tier 2 and Tier 4, applicants are required to demonstrate that
in addition to the attributes tests, they have a specific sum
of money in order to maintain themselves and their families in
the UK. As previous highlighted the requirement that an applicant
can maintain and accommodate themselves and any dependants is
not new. However, it was previously 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.
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).
A Tier 2 applicant must show £800, plus
£533 for each dependant.
A Tier 4 application studying for 12 months
or more must show £9,600 for themselves and £535 (in
addition to the funds to pay their fees in full).
Further applicants 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 ever single day of the last three months. Therefore, if a
single applicant who ordinarily maintains a balance of £100,000
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, his application will be refused. This requirement is
not even explicitly expressed in the guidance and many applicants
misunderstand the requirement to the balance to never have dropped
below the specified sum in the entire three-month period.
Since the first introduction of the new maintenance
tests, despite ILPA's repeatedly expressed concerns, more arbitrary
documentary requirements have been introduced, including that
the bank statements must not be more than a month old for in country
applications and if applying overseas the statements must be dated
no earlier than seven days prior to the date of application. It
is extremely difficult for an applicant to control the timing
both of the issue of his statements by his bank (they may often
be over seven days old by the time he receives them from his bank)
and the date of application (which you should note is defined
in three different ways in the immigration Rules and the Tier
1 guidance as variously being: the date of on-line submission
of the entry clearance application form; the date when both on-line
form has been submitted and payment received; or the date on which
the form had been submitted on-line, payment has been received
and the applicant's biometric data has been captured—the
latter often being several weeks after the form has been lodged
due to availability of appointments in some areas and certainly
rarely being within seven days).
Whilst UKBA international group agreed, in writing,
that the seven day requirement for out-of-country application,
would be amended to one month, in line with in-country applications,
ILPA has now been informed that this revision may not occur. In
the meantime, applications are being refused.
Accordingly, clearly meritorious applications
are being refused on technical evidential grounds and there is
a concerning appearance of form over substance in the implementation
of the PBS.
It should further be born in mind that the entry
clearance application fee for Tier 1 is now £600 for the
main applicant and £600 for each dependant (£2,400 for
a family of four) all of which will be forfeited if the main applicant's
application is refused because his bank statement is eight days
old.
This is further compounded by the fact that
no evidence whatsoever has been provided to indicate that there
has been any problem with highly skilled migrants or work permit
holders claiming public funds or becoming destitute. As with most
immigration categories, the conditions of leave for highly skilled
migrants or work permit holders prohibits claiming public funds
in any event and, given that these categories of migrant represent
the most elite of all migrants to the UK and those with guaranteed
jobs, it would appear most unlikely that they represent a risk
to public funds or of destitution. ILPA has informally enquired
as to what evidence has been obtained and what research has been
carried out to identify that there are problems with the maintenance
requirement necessitating the changes brought about under the
PBS and the response has been: none.
Accordingly there is real concern that the maintenance
requirement serves to operate in a purely discriminatory and arbitrary
manner.
September 2008
