Studying law with a UK institution and becoming a solicitor or barrister in the UK has long been an esteemed achievement by lawyers around the world. Historically, the UK has welcomed migrants who wish to undertake the challenge. Immigration rules (the rules) and related concessions have made routes to becoming a solicitor or barrister in the UK available to migrants, in particular to Commonwealth citizens.

The rules now accommodate students under tier 4 of the points-based system (PBS). Accordingly, there has been a steady movement to delete the concessions ‘outside’ of the rules accommodating ‘unconventional’ categories of students. These changes in policy could have a significant negative impact on migrants who wish to qualify as UK lawyers.

The old student rules and ­concessions outside the rulesBefore the introduction of the PBS in February 2008, the rules for students allowed non-European (EEA) nationals to study in the UK at institutions on the Register of Education and Training Providers (RETP). Students were required to have evidence of: their acceptance onto a full-time course; the funds to pay course fees and maintain themselves in the UK; and their intention to leave the UK following graduation.

Under the old student rules it was understood that law students might not meet these full criteria due to the nature of their courses and the restrictions of practising in a particular jurisdiction. Nevertheless, the UK Border Agency (UKBA) recognised that law students should not necessarily be excluded from the UK.

The intentions of a foreign national who sought entry or requested an extension of stay to pursue a course of legal studies in the UK were reviewed carefully. Consequently, the immigration directorate instructions noted that a prospective law student should ideally intend to teach law, act as a consultant on British law in his country of residence, or be a student of comparative law.

Fair enough. If the aim of an immigration system is to allow for migration to and from a country in a manner which benefits that country without displacing a resident workforce, it would make sense to ensure that students training to become lawyers in the UK are those who will be practising in the English common law jurisdiction, for example British nationals or those settled in the UK.

However, a full training in UK law is beneficial to legal practice in many countries. Furthermore, it is too simplistic to assume that only British nationals would be interested in practising law in the UK. Enabling the UK legal profession to operate as a meritocracy regardless of nationality could only improve the quality and calibre of its practitioners.

Before the introduction of the PBS this seemed to be the adopted mindset, and there were concessions that lay outside the rules to allow both for law students to continue their training in the UK and for foreign lawyers to practise law in the UK in a self-employed capacity in partnership with English solicitors, as a partner with a firm of foreign lawyers, or as a sole practitioner.

One of the concessions in place was for bar students. Barristers are not required to study full time by the Council of Legal Education. In agreement with the Home Office, law students accepted by one of the Inns of Court did not have to meet the full-time study requirement, nor was reference to the RETP a requirement.

Any barrister who wishes to exercise rights of audience before a court must have completed 12 months’ pupillage. Before the PBS, barristers who could demonstrate that they had been accepted on a pupillage scheme with a recognised chambers (paid or unpaid) could be treated as students under the rules, subject to certain criteria.

Another concession enabled articled clerks to remain in the UK as students to undertake sponsored pupillage employment with the Crown Prosecution Service following their two years’ articles. Remaining in the UK as a bar student and pupil was therefore an option for a non-EEA national before the introduction of the PBS.

The points-based system The PBS for immigration was introduced in 2008 to streamline the routes of entry for prospective migrants seeking to work or study in the UK. The implementation of the PBS has been punctuated by promises from the UKBA of a transparent and fair immigration system based on objective ‘points’ criteria.

The removal of discretion under the system has led to the elimination of several concessions outside the rules. Thus, in March 2008 the concessions for bar students and those on a pupillage scheme were removed; and on 30 June 2008, the concession for self-employed lawyers was deleted. Most recently, on 1 October 2009, the home secretary’s latest statement of changes to the immigration rules came into effect. Upon scrutiny of these changes, it has become apparent that there remain gaps in the PBS that have serious consequences for migrant students wishing to remain in the UK, particularly for the completion of training at the bar.

Options under PBSWith the introduction of the PBS and the deletion of the concessions, where does that leave law students wishing to undertake training contracts and pupillages?

Tier 1: tier 1 of the PBS was launched in full on 30 June 2008 and supposedly caters to highly skilled migrants. Tier 1 (general) permits employment or self-employment in the UK and was a route available to students. Someone with a degree qualification (such as an LLB) and a minimum earnings period (over 12 consecutive months within a 15-month period before making their application) could qualify to enter/remain in the UK under tier 1 (general). The 12-month period allowed for earnings could be before a period of full-time study.

On 31 March 2009 the bar was raised to prevent points being awarded for a bachelors degree or for previous earnings under £20,000. Following these changes, the September 2009 statement of changes removed the provision for a period of study to be taken into account when considering previous earnings.

UKBA states, unconstructively, that this latest change will ensure that decisions are based on an applicant’s ‘recent’ work experience and earning capability, which better demonstrate their ability to make a significant contribution to the UK labour market. An adverse effect of this change is that tier 1 (general) is no longer an option even for students who already have a masters degree but have just completed their year of study on the legal practice course (LPC) or bar vocational course (BVC).

Tier 1 (post-study work), which replaced several programmes including the International Graduates Scheme, allows those who completed a course of study in the UK at an eligible institution within the last 12 months to enter/remain in the UK for two years. Post-study workers may engage in employment without the need for sponsorship, making this an ideal category for a trainee or pupil to remain in the UK. Until 31 March 2009, an applicant could qualify for this ­category if they had a UK postgraduate certificate or diploma.

Unfortunately, this category no longer recognises postgraduate diploma courses, including the LPC or BVC, as eligible qualifications. The professional graduate certificate in education continues to be recognised and the recent statement of changes reinstated the Scottish professional graduate diploma in education as an eligible qualification that attracts points under the tier 1 (post-study work) category, but surprisingly fails to reinstate legal professional courses. Law students, particularly BVC students, are unlikely to find tier 1 accommodating.

Tier 2: tier 2 is an option for law students who wish to undertake training contracts in the UK. Law firms employing migrants can act as a tier 2 sponsor during the training period and on qualification. This option does not extend to bar students who undertake pupillage with chambers, due to the self-employed nature of the role.

Tier 4: the recent statement of changes has clarified that a tier 4 student migrant may now fill a full-time vacancy during vacations (provided it is temporary), including as a doctor in training on a recognised foundation programme. This provision does not extend to law students undertaking their training contracts or pupillage.

Tier 5: tier 5 of the PBS covers a range of temporary worker categories enabling prospective migrants to enter the UK for primarily non-economic reasons. The Law Society notes: ‘For the legal sector, sharing knowledge, experience and best practice with lawyers from around the world through work experience, secondment and internship programmes is essential to business development.’

The Law Society has registered as a tier 5 sponsor to open a route under the government-authorised exchange framework within tier 5. The Law Society can sponsor migrants and enable firms to continue to develop international networks and run secondment and exchange programmes.

Whether tier 5 government authorised exchange may in the future allow for migrants who have obtained pupillage to remain in the UK under sponsorship of, for example, the Bar Council, remains to be seen.

Osborne Clarke judgmentIn the case of Osborne Clarke Services v Purohit [2009] UKEAT/0305/08, the employer had a policy of refusing to consider any training contract applications from non-EEA nationals who required a work permit. The employment appeals tribunal ruled that this was in breach of race discrimination laws, being indirectly discriminatory on the grounds of nationality, as the proportion of non-EEA nationals who could comply with it was considerably smaller than the proportion of EEA nationals, and was not justifiable under the provisions of the Race Relations Act 1996.

If it is contrary to the law for an applicant to be prevented from pursuing a legal career in the UK on the basis of their nationality, then surely the immigration rules should account for this.

The September 2009 statement of changes provides that the minor amendments and corrections to the PBS are not intended to have an impact on businesses or individual applicants. Nevertheless, they are part of a progressive tightening of the rules and policies surrounding migrant workers since the PBS introduction, and there has been a clear gap left in the system into which law students may inadvertently fall.

Shanti Faiia, trainee solicitor at Laura Devine Solicitors, contributed to this article