Now the old work permit scheme has gasped its last breath, employers and legal practitioners alike may soon recall with fondness the bygone age of the paper work permit.

On 27 November, the work permit scheme was replaced by tier 2 of the points-based system (PBS) as part of the government’s overhaul of the UK immigration system.

Tier 2 looms large on the horizon of business migration, bringing with it myriad complex reporting and document retention duties and the impending threat of criminal and civil liabilities for UK employers.

The common thread through the tiers of the PBS is ‘sponsorship’ - this is evident in all but tier 1. What is obvious about ‘sponsorship’ under tier 2 is that it provides a smokescreen for the government to shift responsibility for compliance to employers, so that in effect the employer ‘polices’ the new system, underpinned by ‘checks and balances’ defined by the UK Border Agency (UKBA).

Sponsored migrants under tier 2 will require a certificate of sponsorship (COS) - a virtual document replacing the paper work permit - from a UKBA-licensed employer that has been assessed by the UKBA. The UKBA will confirm the employer’s suitability as a sponsor and grant it permission to issue a COS in accordance with the terms of its licence.

The COS will enable the migrant to make the necessary entry-clearance application, and will act as the sponsor’s assurance that the migrant meets the requirements of tier 2 and is able to do a particular job in the UK.

The COS will be generated by the licensed employer through access to the web-based tool - the Sponsor Management System (SMS).

Online functionalityThe UKBA is keen to proclaim the simplicity of the SMS. But the limitation of the tool was highlighted at a recent UKBA ‘walk through’ demonstration of the new system.

A mock-up of the system was demonstrated to a number of legal practitioners including myself by a panel of UKBA experts, including the head of the PBS implementation project and a number of IT experts. What transpired was that, far from being a well-designed, multifunctional and simplistic tool to use, the SMS is far from near the necessary standard. Functionality is limited across a number of key areas, particularly when distinguishing which key personnel have accessed the system and undertaken COS creation or assignment activity.

With the threat of an employer’s licence being downgraded or revoked where COSs are incorrectly issued, it is critical that users of the SMS are able to accurately manage activity on the system, including being able to distinguish between activity by various users at the same and different levels.

The UKBA quite sheepishly advised legal practitioners during the demonstration that a number of aspects of the system are to be amended, that it is recognised that the system should be enhanced, and that by late 2009 the SMS will be far more advanced than it is now.

This raises the question: what has the UKBA been doing for the last two years? The SMS was always to be the integral tool for tier 2 operation and yet the IT is below par and in need of serious planning and development. All of which should, of course, have been done well in advance of the implementation of tier 2. The SMS, it seems, is a reflection of the PBS project as a whole - an ill thought-out race to meet unworkable deadlines.

In keeping with the UKBA’s current website, the SMS homepage has the same general set-up, with ‘quick links’ on the right-hand side for linked information and a panel on the left comprising ‘user manual’, FAQs, helpline details and ‘user guidance’.

The main screens of interest on the SMS run as follows, but bear in mind that the UKBA intends to make further changes in the early part of 2009:

  • Administration - section for maintaining details about the sponsor (employer company) and also details about the employer’s key personnel under the licence, such as administrative officer, level 1 and 2 users and key contacts.
  • View COS - this is a function for searching and retrieving existing COSs by name or passport details. Created COSs may have a number of status alerts alongside them, including ‘payment pending’, ‘work in progress’, ‘ready to go’, ‘assigned’ and ‘used’.An assigned COS has been issued to a migrant and a ‘used’ COS has been used for the purposes of entry ­clearance at the relevant BDP.
  • Prepare COS - this section lets the employer create a COS under the relevant intra-company transfer or tier 2 (general) category. In each category the employer may ‘create a new single COS’ or ‘retrieve an existing single COS’.This is where the employer must provide the migrant’s personal information and the UKBA will require far more than under the current work permit scheme, including UK ID card and national insurance numbers. In addition, the job description and salary details must be provided using the most relevant SOC codes as set out in the UKBA’s new codes of practice for occupations in each industry sector. To view these codes, go to www.ukba.homeoffice.gov.uk and look in the section for employers. Perhaps most interesting is that employers also need to tick a box ­indicating whether the resident labour market test has been met. That may sound simple, but it could prove to be a major stumbling block for most employers. The free text box, provided below the tick box, provides scope for an unaware or ill-advised employer to trip themselves up with the resident labour market requirements for ­issuing a COS. This could result in future civil and criminal penalties and loss of licence.
  • Manage sponsorship - this section allows the employer to manage ‘live’ COSs, for example to withdraw a COS that has been assigned but not yet used by the migrant at the British diplomatic post. Confusingly, there is currently no ‘delete’ function, so a withdrawn COS will sit inactively on the system.Employers can also report migrant activity by clicking into the ‘activity’ screen, where a free text box for reporting unexplained absence will appear.
  • Payment notes - payment can be made online or by cheque. Delay will occur with cheque payments and the COS cannot be issued until a cheque has cleared. The payment screen proved a real source of embarrassment to the UKBA - because the authority has partnered with WorldPay, employers will receive a receipt for the online payment, stating ‘thank you for shopping with the UKBA’.Despite assurances that the IT is flexible and sophisticated in scope, it is still not possible to remove this message - so happy shopping, indeed.To add to the confusion, email receipts will not detail which COS they relate to so another UKBA logistical nightmare rears its head.
  • Summary screen - gives a summary of the information the level 1 or 2 user has saved. It also provides a link button to link to other COS issued in group scenarios.

Future development of the SMSIn its plans for large scale improvements of the SMS for 2009, the UKBA intends to improve the functionality of the system, including:

  • Developing batch functionality for group and entertainment applications;
  • Introducing early in 2009 a ‘delete’ function to enable unassigned COS ‘work in progress’ to be removed from the SMS so that work in progress will no longer sit inactive;
  • Enabling the system to link with all British diplomatic posts around the world to show the status of the entry clearance application at all stages through to approval or refusal; and
  • Creation of a separate user system for legal representatives, so activity of the employer and legal representative is distinguishable. Such a system should enable the legal representative to move easily between different clients with different levels of user access.

These improvements should assist employers in managing their annual quota of COSs, although the UKBA is keen to stress that there are no quotas, only allocations. In the author’s opinion, the difference, it seems, may be purely semantic in the not-so-distant future.

ConclusionDuring the week before the SMS went live on 27 November, the UKBA intended to issue all licensed sponsors with an instructional CD, consisting of a user ID and password, user directions and 24 training modules to enable employers to practise using the new system. The UKBA estimated there would be 20,000 employers needing licences, but it is perhaps a blessing in disguise that at the time the Gazette went to press the number stood at around 3,300 - the system may not withstand an onslaught of users at that level.

Although there is no manual backup system in the event of an IT failure - in other words, there is no paper-based alternative to the online system - the UKBA is confident that it can meet its four-hour service standards for getting the system back online, and stresses the huge penalties on its IT providers if targets are missed.Upheaval for businesses is certainly on the cards in the new age of the virtual COS. Employers may expect disruption to the speed of processing applications and administrative burdens aplenty. It seems the UKBA’s recent TV advertising campaign depicts the reality of the PBS, and the SMS is a stark example of the many hurdles UK businesses now face.

Antonia Grant, a solicitor at Laura Devine Solicitors, assisted with this article