Welcome to Britain: Fixing Our Broken Immigration System

by Colin Yeo;

  All this rather than addressing the fundamental, underlying problem: the rules are utterly incomprehensible to normal people.

  DEFINING AND PREVENTING ABUSE

  The way in which the objective criteria have been implemented has also opened the system to unintended consequences, and even to outright abuse. As it turned out, civil servants were no better at designing objective criteria than they had been at making subjective judgement calls. For example, the predecessor to Tier One of the points-based system, the Highly Skilled Migrant Programme, had aimed to attract highly skilled migrants – obviously – with the intention that they would make a valuable contribution to the economy of the United Kingdom. Unlike conventional work permits, their visas would not be tied to a particular employer. Instead, they would be free to find whatever employment or self-employment they could. Civil servants at the Home Office, however, trained as they were in a departmental culture of keeping migrants out, became increasingly suspicious that their rules were allowing in more than just the brightest and the best. Indeed, a review in 2006 found there was evidence that some migrants were using forged documents to show how they supposedly met the set criteria and, for various reasons, some entrants were ending up in relatively poorly paid employment, as taxi drivers or in fast food chains.

  Changes were made and a new points assessment was introduced requiring, amongst other things, a migrant to achieve a minimum level of earnings before qualifying for settlement. The reforms applied even to those who had already entered, in effect retrospectively changing the rules of the game after these people had given up their homes and jobs to move to the UK. Those caught out like this succeeded with a group challenge to the new rules in court, but the regulations remained in place for new applicants.12 The reforms seemed to work. When the Migration Advisory Committee reviewed Tier One of the points-based system in a report published in 2009, they found of the highly skilled migrants admitted under that latter system that ‘a high proportion are in employment and that employment is strongly skewed towards more skilled occupational groups’.13 Furthermore, the report found that many employers ‘regard this route as crucial to their economic success and international competitiveness’. This was insufficient to save the route. In Parliament, Theresa May chose to emphasise the perceived failures rather than the successes: ‘At least 30 per cent of Tier One migrants work in low-skilled occupations such as stacking shelves, driving taxis or working as security guards, and some do not have a job at all.’14 The scheme, by then called ‘Tier One General’, was closed by Theresa May in December 2010.

  As a further step towards ensuring that only the intended beneficiaries of the points-based system would receive visas, the Home Office also gradually reintroduced subjective discretionary judgments on whether an applicant was ‘genuine’. This term was never defined, but students had to show they were ‘genuine’ students from 2012 onwards and entrepreneurs had to show they were ‘genuine’ entrepreneurs from early 2013 onwards, after a sudden increase in the number of applicants caused officials to panic. What is a genuine student, you might ask, and how would a civil servant answer that question? Particularly before the student begins his or her course. And how would one tell a ‘genuine’ entrepreneur from a fake one? There is no Dragons’ Den-style panel of established entrepreneurs to judge applications, after all. No, it was for civil servants to do that, almost all of whom, pretty much by definition, have experience only of salaried employment in the public sector.

  One way of looking at these changes is as a welcome reintroduction of some common sense into the process, enabling officials to refuse applications that might meet the technical requirements of the rules but which do not satisfy their intention or spirit in some way. Another way of seeing the new genuineness tests, though, is that they increase the potential for different officials to take different approaches, for different subcultures to grow up at different offices and for unconscious race, gender, age, disability and other biases to creep into the decision-making process. Either way, it marked a return to the days when even applicants who have all of the right paperwork might not know whether their application would succeed. The introduction of genuineness tests was an admission of defeat. The attempt to create an objective system had failed. We are left with the worst of all possible worlds: all of the complexity that was introduced in an attempt to create objective criteria, alongside subjective judgement calls made by inexperienced junior officials re-inserted anyway.

  Mr Imam, with whom we began this chapter, was by no means the only skilled migrant to have come to grief in the minefield that is these ever-changing rules. The pages of the law reports are replete with examples of other black and Asian migrants similarly shipwrecked. Take the highly skilled migrants who found that the rules on settlement had been retrospectively changed, making it impossible for some of them to qualify, but only after they had given up their old jobs, homes and lives and moved to the UK. Most of those who brought the successful legal case against this obvious injustice were black or Asian.15 Or the mainly black and Asian migrants accused by the Home Office (on the basis of dodgy evidence) of cheating in their English language tests, without being given any right of reply. With no ability to appeal, many were detained and bundled out of the country.16 Or those alleged to have misled the Home Office about their past income and tax returns, most of whom were once again black and Asian.17

  And these are just the ones who stood and fought. Many, many more no longer bring legal challenges, since the right of appeal against the refusal of work visas was abolished with the Immigration Act 2014. Instead they have to rely on a more complex and much more expensive procedure called judicial review. Meanwhile, those migrants who are non-racialised and middle-class find their cases instead reported on the pages of the newspapers rather than in the law reports. These examples are euphemistically described as being ‘media-friendly’ and the Home Office press response team quickly reverses their decisions. This policy of deliberately mining the rules with obscure obstacles hidden below the surface, then selectively rescuing only those deemed to be ‘media-friendly’, is both transparently racist and unfair. Nevertheless, it has become standard operating procedure at the modern Home Office.

  NO CUDDLY TOY

  There are several underlying reasons that the points-based system failed. To begin with, the Home Office interpretation of the idea of ‘objective criteria’ was a peculiar and unnecessary one. The length and complexity of the rules flowed from this. Junior officials were expected to act like robots, merely checking whether the documents submitted by an applicant met precise predefined criteria and, if so, issuing a visa.

  In a way, the Home Office could be accused of being too far ahead of its time. Today, technology entrepreneurs are using artificial intelligence to recognise everyday objects, utilising vast sets of data and complex detection and perception technology. Self-driving cars require computers to interpret, classify and predict the behaviour of a bewildering array of real-life objects. The Home Office tried something similar with no prior experience, no artificial intelligence, no data and no computers all the way back in 2006. Unsurprisingly, the project failed. When subjective assessments by officials were reintroduced, it was not a subjective assessment of the meaning and reliability of a given document, which should have been built in from the start. It was instead a potentially biased evaluation of whether the migrant qualified under the spirit and intention of the rules. This was the very antithesis of an objective criterion.

  It did not help that senior civil servants seem to have had in mind a ‘model migrant’ for whom they were writing the admission rules. One suspects that this model migrant looked a bit like success-era Steve Jobs or Richard Branson, the entrepreneurs with whom civil servants might have been familiar. Officials perhaps overlooked the fact that neither were educated to degree level and that both had their share of business failures, as well as successes. Both are also white. As Wendy Williams noted in her ‘Windrush Lessons Learned Review’, there
are few minority ethnic senior officials at the Home Office.18 The migrants who applied for visas literally did not look like the kind of entrepreneurs some civil servants held in their minds. Economists deal with averages, patterns and generalities. On average, migrants make a positive contribution to the public purse; in general, skilled migrants improve productivity; and overall, migration promotes economic growth. An economist might identify that the characteristics of those most likely to succeed in the labour market include educational attainment, language ability and experience, but they would also be very well aware that there are plenty of people in possession of those characteristics who do not outperform their less privileged peers.

  In contrast, officials at the Home Office are trained in a culture of dealing with individuals, and education and competency in economics or the social sciences does not seem to be widespread. The complex messages from research are often only partially digested. A migrant investing in a care home or a fast food franchise or finding work as an analyst or a middle-manager, for example, was not the paradigm civil servants had in mind. Many of these migrants did not seem to fit the preconceived ‘brightest and best’ model, and it was therefore considered that there must be failures in the design of the rules. As a result, the criteria were adjusted and tightened. What civil servants were really looking for, it seemed, were those elusive migrants who would immediately start a pioneering, world-beating, instantly successful high-tech business, as ministers seemed to have promised in the press releases.

  But designing rules to filter out all but the most successful migrants is impossible. It is basically an exercise in crystal ball gazing. There are many reasons why a migrant might ‘succeed’ or ‘fail’ in the labour market, including race discrimination, gender, mental or physical health, caring for a young or ageing relative, changing life priorities and more, all of which might be more important than educational attainment or prior experience, but none of which are taken into account by the objective criteria of the points-based system. Rather than being known as the Highly Successful Migrant Programme, it was called the Highly Skilled Migrant Programme for a reason.

  Civil servants were trying to predict migrant life outcomes to a high degree of certainty based on limited inputs and then evaluating this over a snapshot time frame of just a few years. This perhaps explains the difference between the 2006 evaluation of the Highly Skilled Migrant Programme by the Home Office and evaluation of its almost identical successor, the Tier One General visa, by the Migration Advisory Committee in 2009. It seems plausible that the scheme did not, in truth, change a great deal over those three years. Rather, officials in 2006 felt that there were too many migrants being admitted who did not match the right profile, whereas experts in 2009 assessed that the overall effect was positive and as intended. The outcomes were the same, but perceptions of success differed depending on perspective.

  THE RISE AND FALL OF ECONOMI CIMMIGRATION POLICY

  Ultimately, the failure of the points-based system was political. Initially, despite its flaws, it did what it was supposed to and allowed and encouraged skilled migration. The issues with the complexity of the system could perhaps have been ironed out over time. The real problems came when the government of the day decided quietly to change the purpose of the system from encouraging to discouraging migration. The incoming Conservative-led government in 2010 was bound by its own net migration target, which required lower immigration and higher emigration. As the self-styled party of free trade and enterprise, it was difficult for the Conservatives to challenge the self-evident truth that skilled migration was economically valuable and the new orthodoxy that it was therefore to be encouraged. The response was to hollow out the contents but retain the shell. Complexity was transformed from a bug in the system to a fully-fledged feature. Visits to employers increasingly became excuses to terminate sponsor licences rather than assisting compliance with the onerous terms. Routes within the points-based system were actually or effectively closed. Numerical caps were introduced to others. Subjective screening was re-introduced, and criteria were toughened. The language of encouraging skilled and entrepreneurial migration was retained – but only the language, not the intent.

  The whole edifice of the points-based system was founded on economic arguments that proved to be rhetorically durable yet also intangible and, to many people, irrelevant. The economic benefits were effectively invisible because it was impossible to imagine an alternative, less prosperous universe without them. Early New Labour research papers at the turn of the millennium discussed not only fiscal and economic effects and benefits but also social and cultural ones. This subtlety was lost in the political messaging machine, where immigration was promoted and sold in brutally utilitarian terms. Migrants were discussed as if they were a natural resource to be managed, mined and exploited.

  David Blunkett was central to the change in thinking at the Home Office and it was he who, as Home Secretary from 2001 to 2004, popularised the term ‘managed migration’. By 2005 and 2006, government proposals on immigration routinely bore the strapline ‘Making migration work for Britain’. It was uncomfortably close to ‘Making migrants work for Britain’. In his foreword to the 2005 five-year strategy paper on immigration, Tony Blair wrote that the government must ‘ensure Britain continues to benefit from people from abroad who work hard and add to our prosperity’. The consultation paper, issued in 2005, included a section entitled ‘Benefits, Costs and Impacts of Migration’, which contained only two subsections: ‘Economic Benefits’ and ‘Costs and Impacts’. In the final White Paper, which set out the detail of the proposed new system, the Home Secretary of the day, Charles Clarke, wrote that the UK needed ‘a world class migration system to attract the brightest and the best from across the world’ so that ‘only those who legitimately apply and have the necessary skills can come to this country’.19 Others should stay away, he did not need to add.

  There is nothing wrong in making an economic case for immigration, but there are potential dangers if one is not careful. And Labour politicians were not careful. They were reckless. By making the case all about economics, it was implied that those who are not perceived as economically beneficial, like refugees or family members, were a burden. Even the skilled workers, seen as desirable during the good times, were left vulnerable when hard times hit in 2008. The entire case for immigration seemed to vanish with the global financial crisis. As Maya Goodfellow argues, ‘Eventually New Labour’s claims that immigration was good for the economy would look like a lie when wages began to stagnate and right-wing politicians laid the blame at the door of the newcomers.’20

  Perhaps worst of all, a significant segment of public opinion was never open to purely economic arguments, yet the Labour government went ahead regardless. Economics are complex, ephemeral and indirect. When members of the public felt the pinch, they did not feel any personal benefit from immigration, but they could easily imagine a personal cost. Others would rather have lower economic growth but also lower immigration. While surveys show that the public can and do distinguish between high- and low-skilled migrants when questions are put to them, there is little evidence that these niceties come into play when ‘immigration’ is discussed as a supposedly simple, generic, broad issue – as it is, for example, during an election campaign. There are plenty of commonplace myths regarding economics and immigration that feed this narrative, such as the ‘lump of labour fallacy’ – the idea that an economy includes a finite number of jobs – or that immigration suppresses wages. That these enduring myths are false is irrelevant; they are widely believed by the public and by many in the media and the political classes. By promoting increased immigration, taking ownership of immigration as an issue but making a purely economic case for increased immigration levels, Labour ensured that its record was always going to be vulnerable to later attack.

  The points-based system was effectively the personification of New Labour’s approach to immigration, once it was filtered through the implementation o
f civil servants at the Home Office. It was New Labour’s approach that was fundamentally flawed; there is undoubtedly an economic case for immigration, but it was vastly oversold with all the talk of ‘the brightest and the best’. In 2003, Don Flynn was the policy officer at the Joint Council for the Welfare of Immigrants. In a prescient pamphlet entitled ‘“Tough as old boots?” Asylum, immigration and the paradox of New Labour policy’, Flynn argued that apparently contradictory liberal economic immigration policies and illiberal asylum policies were actually entirely consistent. Both were guided by a belief, he said, that ‘the movement of people across the globe should be guided at every point by the economic objectives of growth and modernisation’. He also predicted that the approach would not age well:

  The point being made here is that the hitching of immigration policy to the interests and functioning of the global economy is, in itself, most unlikely to enable the construction of a calm and stable point from which to manage migration. It is more likely that we will see instead the conditions of the 1990s and the early new century being reproduced indefinitely into the future, with constant campaigns to address the latest crisis in the system of control, resulting in more administrative changes, fresh primary legislation every second or third year, and the ratcheting up of public apprehension as politicians and groupings use the issue to jostle for power and preferment. Over time the sense of crisis itself will become a permanent feature of the system producing demoralisation amongst those expected to administer it and a loss of faith in its effectiveness and legitimacy amongst the wider public.