The most significant changes to the UK's immigration system for more than 40 years were set out in a command paper (Cm 6741) published this month. Home Secretary Charles Clarke confirmed the introduction of a points-based system that 'will revolutionise the way in which migration into the UK works... and... will ensure those with the necessary skills can come to the UK'.
The new system will supposedly benefit employers wanting to employ migrant workers, as the system will be less bureaucratic; educational institutions wishing to give places to overseas students, as there will be more certainty within the system; and prospective migrants, who can benefit from on-line self-assessment. Mr Clarke maintains, or at least hopes, that the system will allow employers and educational institutions to take ownership of migration to the UK and, in return for taking on this responsibility, they will be rewarded with becoming 'designated sponsors'.
The Home Office identified three main problems with the current immigration system that the points-based system is 'architected' (to use a new Home Office buzz word) to deal with, namely:
Making migration work
The command paper forms part of the five-year strategy for asylum and immigration published in February 2005, Controlling our borders: making migration work for Britain, followed five months later by the consultation document, Selective admission: making migration work for Britain.
Mr Clarke introduced this as the next stage of the government's comprehensive reform of the immigration and asylum process, which he proudly asserts had already succeeded in strengthening the UK's borders, reducing the level of asylum applications by 67% from its peak and doubling the number of removals from pre-1997 levels.
It is widely recognised that migration makes a substantial contribution to economic growth, helping to fill gaps in the labour market and increase investment, innovation and entrepreneurship in the UK, while culturally enriching the country. Despite these advantages, the command paper says immigration can leave settled populations, such as that in the UK, concerned about the impact on jobs, public services and their way of life.
Concern about immigration to the UK is not a contemporary phenomenon. At the turn of the 19th century, in response to the arrival of a substantial number of immigrants, the government established a Royal Commission to inquire into 'the character and extent of the evils which are attributed to the unrestricted immigration of aliens especially in the Metropolis'.
Points-based system
Underpinning the new system will be the following five-tier framework:
For each tier, points will be scored for attributes that predict a migrant's success in the labour market and, rather worryingly, control factors relating to whether someone is likely to comply with the conditions of their leave. How this will be assessed is not known and clearly could be highly subjective. Points will be awarded according to 'objective and transparent criteria' to produce a structured and defensible decision-making process.
All applicants in tiers 2-5 will need to provide a certificate of sponsorship from an approved sponsor. The rating for the sponsor will determine the level of points awarded to the applicant.
Sponsorship is 'architected' to act as an assurance that the migrant is able to and intends to do a particular job or course of study. Again, how this will be done, or indeed can be done, is not known, but more information on the sponsorship certificate is promised at the end of April.
It is worth noting now that the minister for immigration, citizenship and nationality, Tony McNulty, mentioned several times that a 'light touch' will be applied for sponsors who comply and 'sanctions' for those who do not.
To sponsor migrants, employers and educational institutions will need to make an application to the Home Office, satisfying the requirements for the particular tier in which they wish to sponsor migrants, and accept certain responsibilities to help with immigration control, including vouching that the individual can do the job. Employers and educational institutions are, in effect, becoming immigration officers without training - a worrying development.
An additional concern is the plan to demand financial securities for those whose personal circumstances or route of migration suggests that they present a high risk of breaching the immigration rules.
One would expect that such major changes would be exposed to detailed parliamentary scrutiny. Not so. There need only be a statement of the changes laid before Parliament, which can become law within 40 days, having been approved or disapproved in whole by Parliament, with no possibility of amendment.
Since publication of the command paper, the Home Office has run a number events and workshops to explain or defend its plans. The importance to the government of these proposals can be inferred by the attendance at an event, for the educational sector, by three ministers, namely Tony McNulty; Lord Triesman, parliamentary under-secretary for the Foreign and Commonwealth Office; and Bill Rammell, minister for higher education and lifelong learning.
Concerns
A simplified immigration system is welcome, as is transparency and objectivity. However, the proposed system leaves immigration solicitors with concerns for employers, educational institutions and, indeed, applicants. The main concerns about the proposed system for practitioners are:
Timetable for change
The paper - which was published on 7 March 2006 - stated that the new system would be introduced in a phased manner and indications have been given by the Home Office that it is unlikely that the points-based system will be introduced before 2008.
The first change was abruptly announced within six days and will adversely and retrospectively affect from 3 April 2006 overseas nationals (soon to be labelled migrants) applying for indefinite leave to remain in the UK in categories relating to employment and business. The qualifying period for indefinite leave to remain in these categories will increase from four to five years.
Other elements of the five-year plan include fingerprinting, expected to be introduced at the end of 2006, with biometrics being rolled out in 2007. And tucked away in the paper is the notion that sponsors will become collectors of visa fees.
In defence of the system, Home Office staff describe the scheme as one that could be explained to your granny and understood by a three year-old. Would the Inland Revenue or the criminal justice system market themselves as wanting such a system? It is unlikely.
The aim of a well-structured, simplified immigration system is clearly admirable, but can the points-based system achieve this? Squashing more than 80 current immigration categories into a single five-tier system is arguably changing the system from a finely calibrated instrument to measure the merits of each migrant to a blunt, unsophisticated tool that neither attracts the best nor excludes the worst applicant. This is arguably not in the country's best interests.
Will abuse be combated? A previous pilot scheme for self-certification for the world's most prestigious employers was ended because of concerns about abuse.
By Laura Devine, Laura Devine Solicitors, London
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