by Colin Yeo;
Turning to the individual tiers of the system, Tier One is applicable to unsponsored migrants with lots of money. The categories within this tier include investors, global talent and, until 2018, entrepreneurs. In the early years of the scheme Tier One also included the ‘post-study work’ visa, which allowed graduates of UK universities to remain in the UK to work for up to two years after graduation, and also permitted them to switch into other work routes at the end of that period if they qualified. This particular route was abolished by Theresa May in 2012. Currently, investors are required to put in a minimum of £2 million of their own money in certain, rigorously specified ways. This will then put them on a five-year route to settlement. If they increase the level of investment to £5 million, they need only wait for three years. And if they invest £10 million, the wait is reduced to a mere two years. This is the preferred route of Russian oligarchs and the Chinese elite. The number of applicants who are accepted through this uncapped method are relatively small, with less than 400 visas being issued to the main applicants (not including family members) in the year ended September 2019.7
Tier One’s global talent route, until January 2020 known as exceptional talent, is designed for outstanding individuals who are endorsed by leading industry, science and arts bodies. Just under 700 visas were issued in the year ending September 2019. Bizarrely, the number was capped until 2020, and although the notional cap was increased from 1,000 to 2,000 in 2019 and then scrapped in early 2020, there was no sign that there were anywhere near as many as 1,000 exceptionally talented individuals who wished to relocate to the UK under such a scheme in the first place.
The other category within Tier One is for entrepreneurs, who needed to be able to invest at least £200,000 in a new or existing business in the United Kingdom, or £50,000 if the applicant was a graduate of a UK university. There were around 2,000 visas issued under these categories in their last year in operation and it is thought much of the money went into the struggling care home sector. The visa was replaced with two new routes outside the points-based system in 2019: the start-up and innovator routes. However, the new requirement that applicants must have buy-in from a business incubator or venture capital firm has made it all but impossible to secure visas in this way. In the first six months of the new route, just fourteen applications had been made and only twelve of those were approved. In effect, the route was shut down by the reforms. Whether this effect was intended or accidental is unclear, but press releases and ministers were simultaneously touting Britain as being open for business.
Tier Two is for skilled workers who have been sponsored by a specific employer. There are four different categories within the tier: general applications, intra-company transfers within multinational companies, sportspeople and ministers of religion. Relatively few visas are granted in the second two categories, although the few sportspeople issued with visas were often household names like Sergei Aurier, Didier Drogba and Luis Suarez. The main Tier Two General route replaced the old work permit system and is similar but more complex for employers, who now need to apply for a sponsor licence in order to get permission from the Home Office to employ foreign workers. A hefty fee is payable for this licence and the employer must agree to certain conditions, including unannounced Home Office site inspections. Since 2017 the employer must also pay the immigration skills charge, which works out as an additional £5,000 for a large firm paying for a five-year visa.
The minimum salary level for a worker recruited under Tier Two is £30,000, but a higher salary is demanded for some roles. To recruit a skilled worker an employer needs to show that they genuinely attempted to recruit for the position from the UK or European Union, but that no suitable applicant applied. Lawyers and officials call this the resident labour market test. Adverts for roles must be placed on certain websites and held open for at least twenty-eight days. If a person does apply but is not recruited, there should be clear reasons as to why.
In 2010, Theresa May imposed a cap of 20,700 on the number of visas that could be issued under the general Tier Two route every year. Some have pointed out that limiting the number of skilled migrants entering the UK to fill vacancies that cannot be filled by home-grown workers is not necessarily sensible. Set at a fairly generous level, it was only in late 2017 that the number of workers recruited started to bump up against that ceiling. The cap operates on a monthly basis and when it is reached the Home Office applies a complex formula to decide who will and will not be offered a visa, taking into account whether a job is a shortage occupation role, as well as the salary and the skill level. In early 2018, this meant that only those being offered a salary of £50,000 might actually get a visa; far in excess of the salary level for many vital roles in the National Health Service, for example. The idiocy of preventing desperately needed doctors and nurses being recruited eventually led to those professions being exempted from the cap in June 2018, freeing up more spaces within the cap for other skilled workers. In the meantime, it is thought over 2,000 doctors and nurses had been refused visas. Nevertheless, because of the exceptions to the cap discussed below, the number of main applicants issued with a Tier Two general visa in the year ended September 2019 was just over 33,600.
The not-so-simple rules I have sketched out here are riddled with exceptions, making the whole system even more complex than it first appears. For example, the resident labour market test does not apply if the skilled worker is earning in excess of £159,600, if the job is listed in the shortage occupation list (the list of jobs Mr Imam relied on) or if the person is changing from a Tier Four student visa, having completed a bachelor’s or master’s degree in the UK. You will also be exempt from the cap if you are applying for the extension of an existing Tier Two visa. In most cases, a minimum salary level of £30,000 is required, but this is just a minimum and a higher salary applies for some jobs listed in Appendix J of the Immigration Rules. Appendix J is 212 pages long and consists of seven extremely long tables setting out different levels of job, from PhD level downwards. Each entry includes a SOC code, job description, examples of typical tasks and two minimum salary levels, one for experienced workers and one for ‘new entrants’ who had previously been degree-level students in the UK.
Tier Three of the points-based system was already dead on arrival in 2008. It was intended for ‘low-skilled’ workers in specific industries, such as agriculture and food processing. Programmes like the venerable Seasonal Agricultural Workers’ Scheme, which allowed for the temporary and seasonal recruitment of farm workers from abroad, and more recent sector-based schemes in food processing and other low-paid and difficult but important jobs, would have slotted nicely into Tier Three. But the influx of workers from other European Union countries from 2004 onwards meant there was no economic or political demand at the time. The politics of immigration fundamentally changed and the case for high-skilled migration had, if anything, been made too successfully. The vital contribution of ‘low-skilled’ workers was minimised and dismissed right across the political spectrum following EU expansion, and the new low-paid EU migrants were massively taken for granted. While it is true that a high level of education is not needed for these types of job, labelling them disdainfully as low-skilled underplays how dirty, dangerous and demeaning yet also critical their roles are. The redesignation of these labourers from ‘low-skilled workers’ to ‘key workers’ during the coronavirus crisis was both welcome and overdue, but it would be optimistic to think this change of attitude is likely to last.
Tier Four is designed for foreign students attending private schools and colleges or universities. Why students are included at all within a system that is seemingly aimed at workers has always been unclear. Like employers recruiting workers under Tier Two, though, schools, colleges and universities must apply for a sponsorship licence from the Home Office in order for foreign students to take their courses. These licences have become essential to business for many, if not most, private schools, colleges and publicly funded universities. Indeed, 2
62,000 such students entered the UK in the year ended September 2019.
Tier Five is an odd ragbag collection of other miscellaneous shortterm routes into the UK. It includes temporary permits for those working in the creative and sporting industries, unpaid voluntary charity workers and religious workers, schemes for governmentauthorised exchanges and entry under international agreements, and a ‘youth mobility scheme’, which is a replacement for the old working holidaymaker scheme. Notably, none of these categories include a route to settlement. A total of around 42,000 main applicants (before dependent family members are counted) were issued with visas under this collection of routes in the year ended September 2019.
The other defining features of the points-based system are: firstly, a much greater role for employers and educational institutions as sponsors than had previously been the case; and, secondly, the use of external advice to adjust the criteria for admission. The five-year strategy paper in 2005 referred to ‘an independent body to advise us on labour market needs’, which would be employer-led. In 2007, the Migration Advisory Committee convened its first meeting. The MAC, as it became known, proved to be an increasingly important feature of the new system for migration, although from the ever-growing number of its recommendations that have been ignored by the government you might be forgiven for thinking otherwise. Arguably, the MAC has often been used as a fig leaf for pre-determined government decisions. If so, that function has proved to be very helpful. Ministers and civil servants alike have found it useful to appear to outsource decision-making to an independent body, freeing them of apparent responsibility.
For the sake of completeness, I should add that a number of further work and study routes have persisted outside this points-based system. The UK Ancestry visa, for instance, a hangover from an earlier age, has remained in place, enabling Commonwealth citizens who can prove that at least one grandparent was born in the territory of the United Kingdom to enter on a five-year work visa. By its nature, it mainly benefits those of white ethnicity. A visa has also been retained for representatives of an overseas business setting up a UK office. Domestic workers in domestic and diplomatic households likewise continue to be admitted, although on conditions that prevent changes of employer and thereby encourage employer abuse of the system. A student visitor visa also remains for those entering for six months or less.
FLAWED FROM THE START
Over a decade after its introduction, it is clear that the points-based system has failed in every way. A House of Commons library report in 2018 stated without controversy that the system ‘has come to be widely regarded by individual applicants, sponsors, immigration lawyers and the judiciary as unduly complex, burdensome, costly and ill-suited to the needs of its users’.8
At the time the points-based system was launched, one of its primary selling points was that it would contain objective criteria, removing the need for subjective judgement calls by civil servants who had no real-world experience of business needs and processes. This matched with the overall ideology of evidence-based policy-making that was central to the New Labour governance project. This quest for objectivity proved to be one of the main drivers of the length and complexity of the new rules. Civil servants ended up trying to set out exact documentary requirements for every conceivable realworld situation that might arise. And there are a lot of these.
For example, for every immigration category, it would be necessary to prove possession of a fixed amount of money in a bank account, and to achieve this, an applicant would need to submit bank statements. Civil servants were anxious to ensure that these documents could not be forged, and yet were also faced with prescribing the exact requirements for what would and would not be considered a bank statement. Copies would not be accepted because they were thought easier to forge, so the original versions would need to be sent in for inspection. A formal bank letterhead would be needed with the bank’s name and logo. The statements would need to show the applicant’s name (or the name of the parent of guardian for child applicants), the account number, the date of the statement and any transactions during the statement period. This sounds sensible enough and would be simple for most people in the UK. Most standard bank statements in the UK meet these requirements. But what about those with a building society passbook instead of bank statements, those who had opted out of paper bank statements, or those from outside the UK, where bank statements do not adopt this format? Separate detailed rules were set for each of these scenarios as well. Each of these sets of requirements makes the rules longer and longer, with the result that the rules are as a whole more complex and harder to use for everyone.
The sheer weight of words involved in the points-based system is astounding. There is a whole section of the Immigration Rules devoted to the system, which is itself seventy-eight pages long. But this part of the rules also cross-refers to, by my count, a further twelve appendices, and the rules include another seventeen separate appendices on top of those. The category under which foreign businesspeople entered the UK before 2006 was just over 2,000 words long. Its replacement now consists of nearly 12,000 words, which is an increase of 600 per cent.9 Admittedly, some of this verbiage had to be added in 2012, after the Supreme Court ruled that the government must include any requirement that might lead to the refusal of a visa application in the main rules. Until then, much of the detail of the scheme had been hidden away in policy documents that could be changed at will without having to go through a parliamentary scrutiny process.10
Some of the appendices are quite short, like the lists of approved, government-authorised exchange schemes. Others are hundreds of pages long. There are additional, separate documents setting out the rules for sponsoring employers and educational institutions, for example, and further guidance documents for each of the multiple immigration categories expanded on previously. To make it worse, the words change regularly. A lawyer working in this field needs to know all this material, at least in outline, in order to provide the best assistance possible. It has become pretty much impossible for an employer, school, college or university to wade through the morass alone. So, the system is far from simple, accessible, transparent or usable, as it was first intended.
This peculiar way of implementing objective criteria, focusing on form only and not on substance, has caused the system to become extremely inflexible in individual cases. Most people think of an ‘illegal immigrant’ as someone who smuggles themselves into the country in the back of a lorry or deliberately goes to ground when their visa expires. However, an increasing number of highly skilled workers, students, academics and others have found themselves on the wrong side of the law simply because the rules have become so obscure and inflexible. Such people often wanted to make lawful applications on time, but it has become all too easy to make a mistake and be forced to leave the country as a result.
Continuing with the earlier theme of the voluminous rules on bank statements, for example, those who had electronic bank statements – which would be easy to forge – were told that these needed to be accompanied by a supporting letter from the bank or building society, on company headed paper, confirming that the statement provided is authentic, or otherwise printing statements bearing the official stamp of the bank or building society on every page. It is easy enough to cook up a rule like this in a building in Whitehall, but no one talked to the banks or building societies first. Many simply refuse to provide these letters or stamps, leaving some applicants having to tour different branches in the hope they will find a sympathetic employee. Where a series of bank statements was demanded, an accidental missing statement was fatal to an application. Civil servants would not pick up the phone to the bank and ask for a copy to be sent in themselves; they would simply refuse the application and render the applicant illegal.
As a further example, the financial rules in several categories included a requirement to hold a specified amount of money continuously in a bank account for a specified period of time. Allowing your bank balance to dip even one
penny below this amount for one day, for example because of an unexpected charge or direct debit, would lead to a visa refusal. Those who tried to challenge such decisions in court often failed. ‘It’s the law,’ said the judges.
In 2011, the National Audit Office found that half of all points-based system refusals were due to not providing the right information or evidence.11 In some of these cases, the applicants may well not have had the evidence. If so, why would they knowingly have paid a huge fee to make a doomed application in the first place, though? It was obvious to everyone outside the Home Office, and perhaps it was, in truth, obvious even to those within, that the new system was anything but simple, clear and transparent for those actually applying under it. In an attempt to mitigate the worst excesses of its new ‘objective’ approach, in 2009 the Home Office belatedly introduced what it called an ‘evidential flexibility policy’. This allowed officials some added flexibility around some of the more painstaking requirements but was initially secret, known only to officials and not to applicants; and because it was secret, if it was not followed by an official then an applicant could not complain, as they would not know about it to begin with – and neither would their lawyer. The secret policy was eventually leaked and published, leading to a string of legal cases about whether the Home Office had properly applied it in individual cases, whether applicants could rely on the principle of fairness and so on.