Laura Devine, Laura Devine Solicitors, London and New York -asks what is happening with the new UK immigration system. It is certainly "giving excitations" but immigration lawyers in the UK are not "picking up good vibrations"
The UK government's determination to build public confidence in the immigration system has resulted in a prolific number of consultations, statements of intent, green papers and a Draft (Partial) Immigration and Citizenship Bill in 2008. Liam Byrne, the minister for state for borders and immigration, has proclaimed numerous times this year that "Over the course of 2008 we are undertaking the biggest reform of Britain's immigration and border security system for 45 years."
In 2007 the government announced its "Simplification Project" whereby the Immigration Act 1971 - the key piece of immigration legislation - and the nine subsequent Immigration Acts are to be replaced by a single Act providing transparency, clarity and predictability and at the same time consolidating and rationalising the legislation. 2008 has seen the partial introduction of the much-heralded Points-Based System (PBS), which provides for a single application process with five tiers of entry into the UK. The government professes that the PBS provides the desired transparency, objectivity and consistency that will allow the public to understand "who we are allowing into the UK and why". The government is determined to provide the public with a simple immigration system, so simple, in fact it has been said they want it to be understood by a three-year-old. Will such a system attract the calibre of migrant the government wants to target? Further, it must be asked would the Inland Revenue or the Criminal Justice System promote themselves as wanting a system which is so simplistic that it could be understood by an infant? Since the expansion of the European Union in recent years when the UK - unlike most of its fellow EU states - in 2004 and to a lesser extent in 2007 welcomed workers from Central and Eastern Europe, the government has been under pressure to appease the public and to reduce the number of migrants coming to the UK. This ‘numbers game' may be justified but surely not if it results in the dismantling of the UK's highly developed, efficient and effective business immigration system?
While undoubtedly there is room for improvement in the 45-year-old immigration system with its myriad of immigration categories, (84 in total), it can equally be argued that many of its perceived complexities are the necessities of a finely calibrated system; one that has evolved over many years, enabling it to address a diverse range of circumstances and resulting in a well-honed, sophisticated instrument for assessing entry to the UK. The simplicity that the government is seeking, while laudable in principle, risks turning a refined system into a rather crude, blunt instrument, which may neither allow entry for all those who will most benefit the UK, nor restrict the entry of all those who will not.
The simplification process has its cornerstone in the PBS. The system is intended to provide for all business entry into the UK. Tier 1 encompasses highly skilled individuals to contribute to growth and productivity; Tier 2 includes skilled workers with job offers to fill gaps in the labour force; Tier 3, which has been suspended before coming into operation, was due to provide for low-skilled workers needed for temporary labour shortages; Tier 4 is exclusive to students, who will require sponsorship by educational institutions; and Tier 5 provides for youth mobility and temporary workers for limited periods to satisfy primarily non-economic objectives. The PBS will supposedly result in a simple, easy-to-follow process for sponsors and migrants alike, which will be so straightforward that the government has stated there will be no need for a right of appeal where a licence for sponsorship, or indeed an entry clearance, is refused.
Successful applicants under the PBS must obtain the required number of points in the categories within each tier. Points are awarded for mandatory criteria and certain attributes of the applicant including qualifications and earnings. The UK has made itself unique by offering no points to migrants for their work experience or skills even for those applying for entry on the basis of being highly skilled. The government's determination to drive out even a scintilla of subjectivity in the immigration system has resulted in this anomaly. To assess the value of an applicant's skills and experience would mean that immigration staff would need to apply a subjective test. The government did not want this, so rid the PBS of any award to migrants for skills or experience, which ironically are the two attributes that employers had reported to the government were the most valued in a workforce.
There has for many years been a requirement under the rules that migrants demonstrate they can maintain themselves while in the UK without becoming a burden on the state. Despite this requirement being effective, the government has seized the opportunity to broaden the maintenance requirement. This expansion is not only unwarranted but also unreasonable in two respects. First, applicants must show an unjustifiably high level of funds in their personal bank account, the level of which depends on the tier they are applying under; the number of dependants accompanying or remaining with them in the UK; and whether or not the application is being made in or outside the UK. Second, the money must have been in the applicant's personal bank account for three months prior to the application, without dropping below the required level for even a single day.
To demonstrate the excessiveness of this requirement an applicant with a spouse and two children applying to enter the UK for post study work would need to demonstrate that he has had in the three months preceding the application the level of funds equivalent to £7,600 being comprised of £2,800 for himself and £1,600 for each dependant. By the government's own measures the real term value of that amount for an applicant from Ghana is over £86,000.
English language requirement
A command of the English language is now a central requirement for those wishing to stay in the UK and the government is extending the requirement to those who seek to enter with the aim that migrants will have the necessary language skills to make a meaningful contribution to the economy. Two categories of migrants under the PBS have been excluded from this requirement. First, wealthy investors who don't need to work in the UK. Second, intra-company transferees applying to enter the UK. This concession resulted, in part, from tough lobbying by the Japanese authorities who successfully argued that many Japanese nationals coming to the UK as intra-company transferees for short-term assignments do not need to speak English. The government compromise here extends only to intra-company transferees applying to enter, not to those applying to remain in the UK, who must then show a proficiency in English.
Sponsorship is a key concept of the PBS, which rests on two fundamental principles of government. First, that those who benefit most from migration, in particular employers and educational institutions, should play their part in ensuring that the immigration system is not abused and second, the assurance that migrants applying to come to the UK to do a job or to study are eligible to do so and that reputable employers or educational institutions genuinely wish to take them on.
All migrants applying to enter the UK to work or study will need a sponsor (with the exception of those applying under Tier 1). For employers or educational institutions to sponsor migrants they must have a sponsorship licence obtained from the United Kingdom Border Agency (UKBA). Applicants must apply online, supply the necessary original documentation and pay a fee before the agency will consider the application. The UKBA intends to carry out extensive checks, some at the applicant's premises, before it will issue a licence. On the grant of a licence the sponsor should be able to bring migrants to the UK although this will not always be the case. Employers will be issued with a number of certificates of sponsorship and educational institutes with confirmations of acceptance for studies. Both are virtual documents merely being unique reference numbers which can be sent to potential migrants. On receipt of the certificate or confirmation the migrant can make an application for entry clearance for work or study purposes. Applications for entry clearance can be refused even where there is a sponsor.
On the face of it, the PBS should make it easier for employers to employ migrants and for educational institutes to bring in students from outside the UK, but in return for this simplicity the UKBA shall impose a raft of duties on the sponsors which can be seen in effect as making the sponsors undertake duties of immigration officers. Further encumbrances for sponsors are the potential liabilities imposed on them with the impending threat of new civil and enhanced criminal penalties.
OTHER ASPECTS OF THE SIMPLIFICATION PLAN
Despite currently having a clear and concise path to citizenship for those who satisfy the requirements via movement from temporary leave to permanent residence to citizenship, the UKBA maintains that the overall structure of the citizenship system is complex. It is determined to make this newly tagged ‘journey to citizenship' clearer, simpler and easier to understand. This simplification will ironically result in a more complicated journey by making applicants move from temporary residence to "probationary citizenship" (an intriguing new hypothesis with little to do with citizenship) to either permanent residence or British citizenship. The time it will take for most migrants to move to citizenship will be longer than under the current system, undermining the UKBA's stated aim of facilitating integration. Further, the requirement that dependent family members must qualify for permanent residence or British citizenship in their own right adds to the complexity. Another unwelcome proposal is that migrants criminal convictions may slow down their progress to settlement and may preclude eligibility for probationary citizenship altogether. A concept that will surely challenge multiple constitutional and human rights principles particularly of reasonableness and proportionality is the intention to extend the implications of criminality to parents whose children commit offences.
The government is keen to modernise short-term migration for those visiting the UK for tourism, business, study and family visits. The stated aim is to make this system more secure while maintaining the UK's position as a destination for tourism. The key changes to short-term visits include proposals for tourist visas including group travel and special events visas and distinct clear categories of business and special visitors. These concepts may even be welcome but of extreme concern is the proposal for a new sponsored family visitor category with licensed sponsors vouching for their family members' visits with an astonishing liability for on the spot fines of £5,000 or a 14-year jail sentence for those who break the rules.
Spouse visas shall not go untouched under the current reforms. Two main proposals include the introduction of a pre-entry English test for marriage applicants and to increase the age at which someone can sponsor or be sponsored as a spouse from 18 to 21 years. The government states it aims here are twofold. First, it wants to be seen to take action to prevent forced marriages and second, to ensure that it helps support newcomers to integrate rapidly into British life.
Draft (Partial) Immigration and Citizenship Bill
The Bill is to make provisions about immigration and naturalisation and to replace and consolidate many of the relevant immigration and nationality acts. It is also a vehicle for introducing the citizenship changes.
The aims of simplicity are, clearly, to be applauded and encouraged but it is of great concern that to achieve "simplification" the government is removing the exercise of discretion and the development of concessions outside the rules which, traditionally, have been the means whereby immigration concepts of individual right have been developed as new situations emerged. Further, unease results from the government's strong implication that to enhance the simplicity process it will reduce the availability of operational guidance on how law and rules are being applied. This is coupled with a worrying implication from the UKBA that its desire is that the immigration process will be so simple individuals pursuing immigration and nationality applications will feel confident to do so without the benefit of independent legal advice.
Future entry for all potential migrants coming to the UK will depend on their ability to complete an online form and to produce the prescribed documentation. Ideally, the government would want to have a high-tech scanner, like one seen at a supermarket checkout, which can assess whether the documents produced are genuine. The government may well achieve its aim of tackling abuse, it will also undoubtedly save funds by abolishing the system of appeals for entry under the five tiers. But it will stop the UK from having a fair immigration system, a system that has in the past provided it with a means of attracting skilled workers to all sectors of the economy. This tiered system will exclude many types of applicant the UK is seeking to attract, or further categories, sub-categories, tiers and concessions will be added to the new system until it resembles the one we have developed over 40 years. At which stage, immigration lawyers shall pick up "good vibrations".