Employing Migrants: Is There a Future for the Points Based System?

Mon, 19 Jul 2010

The PBS is the most radical shake up of the immigration system for 30 years and has shifted major responsibilities on to employers. Tier 2 of the system replaced the work permits regime in November of 2008. Employers now have to apply to the UK Borders Agency for licences to entitle them to “sponsor” persons they wish to employ from outside the European Union. 
The Business Immigration Team at No5 Chambers is at the forefront in helping employers revise their systems to get the best out of the new system.
Manjit S. Gill QC and Edward Nicholson provide a brief outline the scheme and consider some of the issues arising, some of the possible challenges, and whether the system will survive at all. They also invite readers to write in with information on how the system seems to be working. 
In March 2006 the Home Office published A points based system: making Migration Work for Britain. Over the course of 2008 and the beginning of 2009 the United Kingdom Border Agency (the “UKBA”) introduced the entirety of the points based system via progressive statements of changes in the Immigration Rules. This has replaced the previous range of immigration routes for those seeking to enter the UK for employment, to invest in the UK, to set up in business or to study in the UK, although many of the criteria which used to be applicable to those routes continue to operate for qualification under the new system. With a few exceptions entry under the points based system leads to eligibility to apply for settlement and thereafter for UK nationality.
The points based system comprises five “Tiers” (although implementation of Tier 3 – for unskilled workers to fill temporary labour shortages – is currently suspended indefinitely). 
Tier 1, for which the Highly Skilled Migrant Programme (HSMP) was a forerunner, enables highly skilled individuals to enter the UK to contribute to its economic wealth and productivity. 
Tier 2 is for skilled workers who have been offered employment in the UK. It has replaced the previous Work Permit scheme.
Tier 4 is for those wishing to study in the UK – it has comprehensively replaced the Immigration Rules relating to students.
Tier 5 is for youth mobility and temporary workers. Their reasons for coming to the UK are predominantly not economic. 
Eligibility for entry under the Points Based System is heralded as being genuinely objective. A key feature of this is the absence of any discretion exercisable by the UKBA’s staff when considering applications for entry clearance and for leave to remain. To this end applicants must prove their entitlement to leave to enter or remain by the production of documents specified by the Secretary of State in guidance published on the UKBA’s website. The Immigration Rules point out that if an application is not accompanied by these specified documents it will not meet the requirements of the Rules. 
Tier 1 is distinct from other Tiers of the Points Based System. Applicants for entry under Tier 2 - which has replaced the previous work permit regime since its wholesale introduction on 27-11-2008 must be “sponsored” by the employer for whom they will be working in the UK. 
Sponsorship is also a requirement for leave to enter or remain under Tier 5 (for temporary workers) and under Tier 4 (for students), where Sponsors are licensed providers of education in the UK. 
Anyone wishing to apply for entry clearance under Tier 2, Tier 4 or Tier 5 must obtain a Certificate of Sponsorship (“Certificates of Acceptance for Studies” for Tier 4) from their Sponsor. It is only licensed Sponsors who are entitled to issue Certificates of Sponsorship. 
To obtain a licence employers need to apply to the UKBA providing evidence specified in detailed guidance which is published on the UKBA’s website. Licensed Sponsors are graded “A” - indicating that the UKBA has no issues with the Sponsor’s competence in the role of Sponsor or “B”- where the UKBA has highlighted areas of the Sponsor’s practice which it requires the Sponsor to address. 
Once licensed a Sponsor can issue migrants he or she wishes to employ in the UK with a Certificate of Sponsorship.
Any organisation or employer that is a licensed Sponsor has obligations to the UKBA to keep checks on those they employ. These obligations are a condition of keeping their licence. They will have, for example, to inform the UKBA if any migrant they employ does not turn up for work. Similarly a licensed education provider must inform the UKBA if a student at their college fails to attend their course. 
Failing to meet these obligations can result in the loss of the Sponsor’s licence. 
Very little of the regime which preceded the implementation of the Points Based System now remains. A significant exception however is the Sole Representatives Category, which from 9 September 2009 was renamed “Representative of an overseas business”. 
Employers, and indeed employees, need to be aware of the risks of prosecution or of being made subject to a substantial civil penalty. Under legislation brought in to coincide with the points based system a UK entity found to be employing migrant workers illegally may be subject to a civil penalty of up to £10,000 per employee and/or those who run the business may be subject to criminal prosecution. In addition, they may be “named and shamed” on the publicly available list of entities which have received a civil penalty. 
A defence to such a penalty is available where the employer can show that he or she has been presented with documents by prospective employees which demonstrate their entitlement to work in the relevant capacity. 
Criminal liability, with a maximum sentence of six months imprisonment, is established where an employer employs an adult subject to immigration control in the knowledge either that he or she does not have leave to remain in the UK, or that if the employee does have leave to remain the conditions of that leave either do not allow for work at all or not in the capacity in which the employee is working. 
Legal developments
Until recently, only the Asylum and Immigration Tribunal had provided jurisprudence as to the operation of the system and the scope of the Tribunal’s jurisdiction in appeals against decisions taken under it. The leading case is NA and Others (Tier 1 Post-Study Work-funds) [2009] UKAIT 00025, in which the Tribunal decided that the system’s combination of Immigration Rules and published policy guidance had effectively eliminated discretion from the UKBA’s decision making. 
However, 2010 has seen the points based system being examined in the senior courts for the first time. There have been, for example, several applications for judicial review of decisions taken by the UKBA to withdraw Sponsor licences held by various educational establishments in the UK. Permission to apply for judicial review has been granted in several of these cases and some injunctions successfully obtained. 
The most significant development is the Court of Appeal’s judgment of 23 June 2010, in Pankina v Secretary of State for the Home Department [2010] EWCA Civ 719. The Court found that the Immigration Rules could not incorporate requirements for entry to the UK or for leave to remain which were themselves contained in extraneous sources such as policy guidance which could be altered by the UKBA, notwithstanding the fact that such guidance was referred to in the Rules. Such requirements, the court held, should have been the subject of parliamentary scrutiny and should have been within the Rules themselves. The UKBA’s policy guidance is of course integral to the operation of the Points Based System. 
The Pankina judgment was followed on 9 July in R (on the application of English UK Ltd v Secretary of State for the Home Department [2010] EWHC 1726 (Admin), in which the Administrative Court found that it was unlawful for the Secretary of State to fix the level at which English language courses for foreign students must be taught in the UK in her policy guidance rather than in the Rules themselves. 
On 20 July 2010 the Secretary of State made clear that she would not challenge the Pankina judgment in the Supreme Court. Instead, the Secretary of State has decided to issue new Statement of Changes to the Immigration Rules which incorporates into the Rules the particular criteria which had been the specific subject of the litigation in Pankina and in English UK. Whether this measure can protect the Points Based System from further challenges based upon the wider conclusion reached by the Court of Appeal remains to be seen. Challenges to the legality of further aspects of the scheme have been lodged by members of No5 Chambers.
Readers are invited to write in with their experiences on how the system is working and on particular aspects which have caused difficulty. Such information will assist the business immigration team at No5 Chambers to assess flaws in the system and consider how best to tackle them and to develop strategic responses in the interests of all our clients. All such information should be sent by email to businessimmigration@no5.com.

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