ILPA Briefing on a Points-Based System:
Making Migration Work for Britain March 2006
On 7 March 2006 the Government published
its proposals for a new points-based system for managing migration A
Points-Based System: Making Migration work for Britain (CM 6741), following its consultation Selective
Admission: Making Migration work for Britain.
The ILPA response to the original consultation can be found on our
website. This note provides a summary
of our initial views on the published scheme, using the headings set out in the
document.
Architecture of the new system
- The document is
the expression of an aspiration for a points-based scheme rather than a
description of such a scheme, with, for example, the criteria for an
application and for the award of points as well as the duties on sponsors,
as yet undetermined.
- Where there is detail this serves to confirm
that, as we anticipated, the scheme will still involve substantial
exercise of judgement by those determining applications. We are not in a
brave new world of merely ticking boxes. We reject the assertion that
performance under the current system is no indicator of the success of the
proposed system: UKVisas’ ability to deliver sustainable
decisions and to try to ensure consistency of quality across posts are at
issue in both. Difficulties posts
have in dealing with their existing workload, the problems of management
at a distance, and the difficulties of communicating with posts abroad,
which are both technical and due to a culture not always receptive to such
communications, all reduce confidence in the proposed system.
o
The proposed “administrative review”: an internal
reconsideration by a senior manager, is a manifestly inadequate substitute for
a right of appeal against a wrong decision.
We have been unable to identify ways in which such a review would differ
from the internal reviews that are supposed to happen now, according to the
guidance for Entry Clearance Officers, the Diplomatic Service Procedures and
which, with applicant success rates on appeal running at 53% last year (and
much higher for certain posts and categories), have failed to improve quality
and consistency.
o
A glimmer of hope was offered during parliamentary debates
on the Immigration, Asylum and Nationality Bill on 14 March 2005 when the
government Minister acknowledged that “there may well be good reason for a person outside the
management chain to be involved, whether at regional or national level” Review external to the decision-making post is a
minimum requirement for consistency, fairness and the appearance of
fairness.
o
The proposals for
administrative review run counter to general government policy. The DCA
(Department for Constitutional Affairs) White Paper Transforming
Public Services: Complaints, Redress and Tribunals ((Cm 6243, July 2004) states:
“Complaints to departments and agencies
3.12
What can an individual do? The first
and most direct remedy is to dispute decisions directly with departments and
agencies.
3.13 But in a democracy
ruled by law, and under a government committed to high quality and responsive
public services, simply appealing to a department’s sense of fairness is not,
and never has been, enough. There has
to be redress beyond the department”
- During the debates in parliament on 14 March
2006 the Minister indicated that the review would not, as the Command
Paper suggests, be confined to factual matters. However, she confirmed that current thinking was, as
suggested in the Command Paper, that there would be a decision on whether
a person was entitled to a review, prior to that review being undertaken. This would be inefficient and likely to lead to delays and injustice. If a person’s grounds for challenging a
decision are weak or non-existent, the review should be a straightforward
matter. Given this, why waste
resources on a triage system seeking to block their right to the review,
especially when this decision is to be taken by the very department,
perhaps the very individuals, whose decision it is sought to
challenge? In these circumstances,
justice is neither done nor seen to be done.
- Architecture is one thing: constructing a
building is another. The document
says that the government does not underestimate the IT requirements needed
(para. 162). Demands on
infrastructure can be identified across the board. The National Audit Office’s report Consular
Services to British nationals, while not
directly addressing the visa system,
provides a useful insight into the pressures on the infrastructure of
posts.
- Reference to the scheme’s being self-financing
(para 157) raises the spectre of those companies and institutions wishing
to bring migrants to the UK funding a costly bureaucracy
Sponsorship
o
We
are told that universities will make decisions about whether a course is
suitable for a particular applicant, employers about whether an applicant is
able to do a particular job (paragraph 58).
All well and good. However, the document then describes how decisions
on, for example, the standard of English of the employee, will be taken by
employers or operators, “overseen by compliance arrangements for
sponsorship” (paragraph 123). It is impossible to determine from the
document the nature and range of obligations on sponsors.
o
It is
impossible to determine the extent to which “compliance arrangements for
sponsorship” will involve
second-guessing sponsors’ decisions, including the possibility of retrospective
assessment that their procedures were not adequate and punishment on that
basis. If this is so, all questions of
subjectivity re-enter the scheme, they are simply displaced into the compliance
arrangements for sponsorship. For example, if an employer says that s/he has
advertised a job, will this be cross-checked, if so how, or evidence required,
as in the present work permit system. What will happen if it is considered that
the job was advertised in an inappropriate place. What penalties apply if the sponsor is found to have
been negligent or acted in bad faith, or if the government otherwise disagrees
with their assessments?
o
Prior
to removal from the list of approved sponsors there is an opportunity to make
representations, but no indication is given of any form of review or redress
available to a sponsor whose decisions are questioned in other circumstances. What redress will there be for a sponsor wishing to
challenge his/her grading, with all the commercial disadvantages, from
reputational risk to inability to recruit desired staff, that the grading
entails?
- The paper
describes a sponsor’s rating as “an expression of their track record in
sponsoring migrants” (before para 55).
Although not stated in the paper, we understand from meetings on
the points-system
that new sponsors will enter the system as a probationary grade A (top
rating). This would appear to us
essential given that there is no centralised record of compliance of
sponsors to date. However, the
document fails to explain how the system will avoid favouring those who
bring in large numbers of people given the references to track record
(para. 66). It will be vital that
the sponsor is not punished for matters outside their control.
- The
suggestion that sponsors might want to offer advances of salary so that an
employee can demonstrate available funds, or that employers and
educational institutions might pay an application fee, in addition to
taking insufficient account of financial realities, could give rise to
complex contractual problems as to the employer/employee relationship
prior to the commencement of work.
- A person
coming under the points based scheme will not be allowed to extend his or
her stay in the UK as a visitor (paragraph 39). We see no scope for workers
to take a holiday in the UK, or simply stay to tidy up their
affairs, at the end of their contract.
Why should an employee not be able to stay for a few months at this
time? But equally, why should the
employer be liable for them when they have left the company or
organisation?
The five tiers
- The document
describes five different tiers within the system, each providing a route
of entry. It is unclear how the system will cope with highly skilled
individuals who do not earn high salaries nor have academic
qualifications.
Tier 1 Highly skilled migrants
- This deals with
highly skilled migrants who will be allowed to change employer and also
contains special streams: a post-study route for those who have studied at
UK institutions and an enterprise category for those intending to
establish themselves in business, innovators or those with substantial
funds to invest.
- It is unclear
how the system will cope with highly skilled individuals who do not earn
high salaries nor have academic qualifications. There does not appear to be equivalent under the scheme of
the “significant achievement” criterion used for the existing Highly
Skilled Migrants Programme. Among
those we find difficult to place in the new system (whether in Tier 1 or
Tier 2) are chefs specialised in different ethnic cuisine and artist,
writers or actors (other than those commanding substantial sums
- This is the only
tier for which one does not need a sponsor, and therefore would appear to
be the only tier accessible to sole traders or companies starting up or
wishing to expand into the UK. We
are concerned that there will be companies or sole traders in this
position who do not meet the Tier 1 criteria, but who wish to work or
build a business in an area identified as a shortage occupation under Tier
2. These could include individuals
and companies from a wide range of trades and professions. The UK needs their skills, but it is
unclear how they get in. It is unclear how the system will deal with sole
traders or companies starting up or wishing to expand into the UK, because
of the centrality of the sponsor to the system.
o
Experience of the highly skilled migrants programme to
date suggests that self-assessment is no simple task, with self-assessment,
assessment by the Entry Clearance Officer and assessment on appeal rarely
matching up. The Command Paper
expresses an aspiration to tackle this, but offers no reassurance that it is achievable:
“To
achieve this we intend to write descriptors for each of the criteria…the
descriptor needs to be clear and transparent while providing a framework to
allow decision-makers to exercise judgment in the individual case. Drafting these descriptors is a challenge,
and will take time to get it right” (paragrapghs 50-51)”
This does not make clear
how the new system will deal with varying assessments of documents submitted by applicants nor the
way in which they assess whether a document is a forgery, and evidence that
assessment, both problems under the current system.
Tier 2 Skilled workers with a
job offer
- Tier 2 deals
with high or medium skilled workers with a job offer, where advertisement
has failed to identify a person from the resident labour market to do the
job or where a general shortage of people to do the job has been
identified. The worker must have a
job offer from a UK sponsor. Inter-company transfers are also dealt with
under this tier.
- See our comments
on sponsorship above.
- See our comments
on Tier 1: again, the focus on academic qualifications and salary would
appear to replicate the risks identified above. We are encouraged by the note that skill and salary
attributes will be adjusted to ensure that specialist categories such as
Ministers of Religion will qualify (para. 95) and suspect that there will
be considerable adjustment to be done to ensure that the system does not
exclude a range of skilled workers whom the UK needs. We are pleased that the document
recognises the importance of identifying shortages in particular regions
of the UK, as well as at national level. Such adjustment however does
imply a more complex system, strengthening our concerns about quality,
consistency and oversight of decision-makers
Tier 3 Low-skilled migration
o
This Tier is concerned with low-skilled workers in
shortage occupations coming to the UK on quota based schemes run by
“operators”. Such workers will not be
able to qualify for settlement.
o
The notion that an individual should be prevented from
coming to the UK because the UK does not have effective returns arrangement
with his/her country, when there is no evidence to suggest that the individual
in question is not going to comply with conditions of leave, raises a real
prospect of discrimination on the grounds of nationality.
- We find it
impossible to square plans for this tier with the Home Office’s work on
human trafficking, which is the subject of an ongoing consultation – as
set out in Tackling Human Trafficking.
Cutting off all legal routes of migration from a particular
country increases the risk of drawing people into the illegal, underground
sector, and of their exploitation through forced labour. Morecambe Bay provided ample illustration,
if such were needed, of what can and does happen across a range of
industries.
- The consultation
asked questions on “operators” bringing in low-skilled migrants and about
the division of responsibilities between operator and employer, yet the
Command Paper is wholly silent on operators. Who will they be? If they are companies based abroad, how
will any responsibilities placed upon them be enforced against them? In an effort to combat labour
exploitation, the government passed the Gangmasters Licencsing Act. It would be helpful to understand how
the proposals for operators link with the way in which gangmasters are to
be regulated. In particular, how
will the government guard against corruption and exploitation by
operators, and how will it negotiate the complexities of sub-contracting
in determining responsibility?
Tier 4 Students
- This tier addresses students.
Tier 5 Youth mobility and temporary workers Students
- This Tier is
primarily concerned with those coming for short periods and/or whose
presence contributes to cultural, charitable, religious or international
objectives. There is no route to
settlement for those who come.
Little detail is provided.
- We are concerned
that some groups have been assigned to this tier when only some of their
members fit within it. For example
entertainers or other creative artists.
Some may be coming for a maximum of 12 months, but others may wish
to make the UK their base. It is
unclear where such people fit if they do not have the academic
qualifications or earnings to qualify under tier 1. Similarly with religious workers other
than ministers of religion.
- For youth
mobility the same concerns arise as under Tier 3. An individual may be penalised for the
attitude of his/her government and immigration risk (presumably determined
on the basis of the behaviour of some of his/her fellow nationals) (see
para. 139). This risks discriminating on the grounds of nationality.
- Concern has long
been expressed about discrimination against certain nationalities in the
current Commonwealth working holidaymaker scheme. The reference to a cap on total
numbers, ‘based roughly on the
number of people entering through existing schemes’ (para. 145) gives rise
to fears of a risk of further institutionalising that discrimination.
Outsourcing the vetting of such young people to the government of their
country (para.144), could also lead to further unfairness, as governments
may use different criteria for allowing their citizens to leave, or gaining
assurances or commitments from them about their future intentions.
Omissions and other groups
- No mention in the Command paper of a range of
significant categories of migrant: retired persons of independent means,
and sole representatives.
Domestic workers
- No mention is made of domestic workers in the
Command Paper save a reference to “servants in diplomatic households”(para.
155) who are covered by international agreements.
- NGOs working to protect
the safety and rights of those exploited through domestic slavery have now
been told by officials working on the points system that domestic workers
who accompany their employers to the UK must either qualify as part of
Tier 2 (which few will do, since this requires that you have an National
Vocational Qualification (NVQ) at Level 3 or equivalent) or will be given
a maximum of 6 months leave, which cannot be extended. The idea is that
the employer will then recruit a replacement domestic worker from the
resident labour marker, and the original worker will go home.
- In practice, the
proposal will mean that domestic workers go underground. Overseas domestic
workers are very vulnerable to exploitation in their employment. They have often borrowed large sums to
migrate to take up employment and have to work for years to pay back the
initial investment and interest on it.
- Domestic slavery is an abuse that takes place
behind closed doors: victims are hidden, isolated and exploited. Without rights to change employer, or
even to extend their stay with an existing employer, and with no route to
settlement, the government proposals will put domestic workers at even
greater risk of such exploitation. What incentive will there be for an
employer to pay an employee properly, or treat them properly under the proposals?
- The approach runs
wholly counter to the Home Office position in Tackling Human
Trafficking - Consultation on Proposals for a UK Action Plan and to
past Home Office provisions to offer protection to domestic workers,
culminating in the introduction of a category in the Immigration Rules in
2002. The important point of those reforms was to break cycles of abuse by
allowing overseas domestic workers to change employers.
- As a footnote, we observe that members know of
instances of highly skilled individuals changing their decision as to
whether to come to the UK when their domestic worker was refused entry
clearance. Many of these
individuals are highly sought after, they can take their pick of countries
in which to work. Not to be
allowed to bring the nanny who has been with children all their life, or a
domestic worker who has been part of the household for many years, has
proved for some to be a decisive factor in rejecting the UK as a
destination.
For further information on ILPA’s work on the points system please
contact Alison Harvey, Legal Officer, alison.Harvey@ilpa.org.uk
on 0207 490 1553