The Points-Based System
The Select Committee on Home Affairs reported in 2009 that the PBS should receive a “cautious welcome” as several key structures required further consideration. Since then however the PBS has become less flexible, more complex & restrictive and there are reports of considerable delays in dealing with in-country applications (Home Affairs Committee, 2013)
A 2010 reports by the UK Council for International Student Affairs found that 10% of student applicants believed that their first application had been unreasonably refused.
It used to be that if an applicant was weak in one area then they would be able to make it up in other areas, however as the 2009 Select Committee noted this has all but disappeared due to Government targets to reduce net migration (as seen by the fact a student needs 30 points for “attributes” which you can only obtain with a certificate confirming acceptance of studies and then another 10 points for maintenance which can only be obtained if you meet Appendix C criteria).
An error made when applying from abroad means refusal, loss of the fee and possibly loss of a job/educational opportunity. A refusal then makes obtaining a visa for the UK or elsewhere harder. In-country applicants may find that the lives they built up over many years could be lost due to becoming inadvertent over stayers.
Paragraph 34(c) of the Immigration Rules renders an application invalid if it does not comply with all the various requirements (for example correct fee, or incompletion of a section on the form).
Criteria for entry are set out in the Immigration Rules and these must be cross referenced with the appendices as well as there being lengthy guidance contained in each Tier (the Tier 2 guidance is 59 pages long).
It was held in Alvi v SSHD  that criteria must be in the Immigration Rules to be applicable and in Pankania  Sedley LJ noted the rules had a status akin to law. The issue now is that Parliament simply added all the extra documents into the rules thus making them hugely complex, as noted by Jackson LJ in Pokhriyal  however at least there is now notice of proposed changes and parliament has the opportunity to scrutinize and reject them.
There is no appeal against a refusal of a PBS application made through entry clearance, except on human rights or discrimination grounds. The Govt. has justified this loss of appeal by the “objective and verifiable” criteria of the PBS in Controlling our Borders, 2005 page 2 however there is no evidence human error has been eradicated.
Independent appeal rights have been replaced by a system of administrative review and scrutiny by the independent chief inspector of borders. These have been criticized as ineffective as per the National Audit Office in 2004. A freedom of information request in 2013 found that ARs have changed the decision in 18% of cases whilst appeals have in over 50%. The UK council for International Student Affairs in 2013 noted that education sponsors regarded AR as subjective, cursory and lacking independence.
In-country appeals remain in place, but have been further weakened by S19 UK Borders Act 2007 which prohibited the introduction of new evidence at appeal (unless on HR or EUFMGs). The Select Committee on Home Affairs noted that the initial decision making and this led to the agency’s poor results in appeals. The government, instead of improving decision making, is removing the appeal grounds in the Immigration Bill.
The PBS decision making is monitored by the Independent Chief Inspector of Borders and Immigration, however he has no power to overturn decisions and only looks at a very small number of cases. The SCHA recommended he be given the power to review individual cases and provide appropriate remedies (2008). JR remains available but as Rhandawa  made clear, that is not equivalent to an appeal.
All PBS Applicants need a sponsor except those in Tier 1. This will be the employer for Tier 2, Educational Establishment for Tier 4 or may be a religious body, charity, sporting or cultural body or even a Govt. for Tier 5.
Tier 2 & 5 Sponsors are rated “A” or “B”. The B rating is regarded as transitional and the sponsor must either improve their performance or lose their licence. New sponsors under tier 4 must get an A licence and are expected to move onto Highly Trusted Sponsor status within 12 months.
Sponsors must now report the following:
1. Failure to turn up for the first day of work or enrolment at college
2. Unauthorized absences from work or more than ten working days (or expected contacts at college)
3. Termination of contract of employment/studies
4. Changes in circumstances that may indicate a breach of conditions of entry
Since Sponsors are judged on the profile and conduct of students in Tier 4, they are becoming reluctant to accept students who have previously been refused or who come from certain areas (UKCISA 2013).
Exxceptional Talent introduced in August 2011 to replace T1 (General) which had been a popular scheme with almost 14,000 main visas and 10,000 dependant ones issued in 2009.
Interestingly in June 2010, the MAC concluded that Tier 1 and 2 Migrants make a small but collectively significantly positive net financial contribution. The therefore thought if cuts were to be made, there should be only a small reduction in Tier 1 visas and a requirement of graduate employment at the renewal stage. These proposals were not followed. The government before the report was finalised cut the T1G acceptances by 600 per month.
Points from Appendix A can only be obtained through endorsement by a designated competent body defined in Para 4b Appendix A as the Arts Council (300 endorsements), Royal Society (200 endorsements of natural and medical sciences), Royal Academy of Engineering (200 endorsements), and the British Council (200 endorsements for humanities and social sciences).
Entry clearance is for three years and four months and is subject to conditions such as public funds, registration with the police and some limits on employment. There is only 1,000 migrants a year who can come in under this teir and there are no language or maintenance requirements. Further leave is then acquired provided the applicant is economically active in their expert field through employment/self-employment, the designated competent body has not withdrawn its endorsement and the applicant has a level of English equivalent to B1 CEFR. As long as these requirements are met after 5 years, indefinite leave is acquired.
Entrepreneur Tier 1
A new applicant can get 75 points under A by having access to at least £200,000 or at least £50,000 from various approved sources. The Appendix B requirement is acquired through a level of B1 CEFR, having a degree in English or being a national of an English speaking country. The 10 points under C and E can come from showing the applicant as £3,100 for himself and £1,900 for each dependant available for 90 days.
They can obtain IL after 5 years residence, or after 3 years if they have created at least 10 new jobs or a business worth more than £5 million.
Tier 1 Investor
75 points from Appendix A by having at least £1 Million under his own control or assets at £2 Million. There are no language or maintenance requirements. Leave is granted for three years and four months and then a further 2 years. Leave may be curtailed if the applicant does not invest at least £750,000 within three months in UK government bonds or share or loan capital in active and trading UK companies and maintain investment throughout the period of leave.
The period time before settlement depends on wealth. Those with over £10 Million can settle after 2 years if 75% of that 10 million has been invested and the remainder is on deposit in a UK regulated financial institution. Those with £5 million can settle after 3 years, and those with £1 million must wait 5 years, the other usual conditions for settlement must be met.
Tier 1 (Graduate Entrepreneur)
Replaced T1 post-study work in 2013 as there was a high level of graduate unemployment in the UK. The rules are found in Para 245F-FC. Applicants must be endorsed by the institution from which they received their Batchelor’s Degree. The endorsement must confirm they have a genuine and credible business idea and will spend the majority of their time working on developing business ventures. There is a language requirement, and must have £1,800 available. Leave is for one year and may be renewed once. It is not a route to settlement. The number of visas available a year is 2000.
four subcategories: General, Minister of Religion, Sportsperson or Intra-Company Transfer.
G’s, MoR’s and SP’s are all dealt with under Para 245 H and must have sufficient points for attributes, language and maintenance under Appendices A, B and C. They must be at least 18, or over 16 with parental consent. They must have a sponsor which is not a company in which they own more than 10% of the shares unless the gross salary is £152,100 or above. There is a cap of 20,700 issued per year not including people who earn more than £152,100, however the cap has not yet been breached.
Initial leave is for the period of engagement plus one month, or for three years and one month, which is ever shorter. Conditions of leave include a prohibition on working except for the sponsor and voluntary work or for a SP employment by a national team whilst that team is in the UK.
Tier 2 General
These migrants need 50 points from Appendix A, 10 for Language under Appen B, and 10 for Maintenance under Appen C. Thirty points are awarded if the job which his being offered passes the Resident Labour Market Test or if the exemption applies. The remaining 20 points are gained through having an appropriate salary which for a new entrant is at least £20K. All applicants need a certificate of sponsorship. It must relate to a job that is on the list of occupations at level 6 (degree level) or above of the national qualifications framework in Appendix J.
The SS may limit the number of CoS available for a specific period under Para 80 of Appen A. Applicants will only be given one if the limit (20,700) has not been reached or they are to earn over £152,100 a year. There is a complex formula based on preferred jobs and salary as well as skills under Appendix A if there are more applicants than spaces. The shortage occupation list is found in appendix K. the MAC review this periodically and their recommendations are considered by the government. Concerns include transferable skills (a chef might not be able to transition to a new kitchen culture) and thus they are required to have skills and a salary threshold which have led to vacancies in less prestigious restaurants.
- If the job has left the list, but the applicant renewing is still in it, he shall get his 30 points.
The Resident Labour Market Test is designed to ensure that EEA labour is not available to fill the post. To pass this test, it must have been advertised for 28 days (at jobcentre plus and one other method set out in AA) at the necessary skill level and market rate. Applicants under this must have £900 for themselves to get the 10 maintenance points under Appendix C, and £600 for each family member for a 28 day period under appendix E.
Tier 2 Intra-Company Transfer 1
This enables multinational employers to transfer their existing employers from outside the EEA to their UK branch for training purposes or to fill a specific vacancy that cannot be filled by a UK or EEA national (para 245G).
There are now four categories for ICTs: short term staff (under 12 months), long term staff (over 12 months), graduate trainees and skills transfer.
All ITC need 50 AA points, 30 for a CoS and 20 for appropriate salary.
They must do a job on the list of graduate level occupations (Appen J) or one of the named creative occupations and qualified to level 4.
Tier 2 Intra-Company Transfer 2
ST and LT staff must have 12 months continuous employment with the sponsor prior to date of application.
GT’s must take part in a structured programme and been working for sponsor for over 3 months
SKT’s must be entering of sole purpose of transferring skills to or from
LT must receive at least £40,600 a year, and other categories £24,300
They must meet all maintenance requirements for T2 migrants
ST, GT and SKT must not have applied for a visa in the last 12 months.
ST and GT can enter for a maximum of a year, SKT 6 months and LT 3 years and one month.
Entry clearance prohibits recourse to public funds and working except for the sponsor as permitted. Further leave is provided for LT if paid at least £152,100 provided same employer. St and GT can apply for extra 12 months, whilst SKT 6 months provided all points requirements are met.
Educational institutions are required to obtain a sponsorship license from UK visas and immigration. They are expected to either be highly trusted or to achieve this status quickly. If they are not they are only able to sponsor less students (para 115 AA).Para 245 ZV allows rejection of disgenuine students and allows interview and examination of applicants in their English language and intentions.
Registered sponsors have a range of responsibilities including record keeping and reporting obligations.
Where a sponsor’s license is withdrawn, no new leave will be granted and entry clearance cancelled if the student has not travelled. If the student was not involved in the revocation, they receive 60 days leave to remain. The courts have tended to allow current students on the course to remain (London Metropolitan University). A new application is required if the student wishes to change sponsor, and the new sponsor must confirm the switch is academic progress or at the same level but complements the prior study.
Tier 4 general students
2 categories: those over 16 in further education and those between 4-18 who are child students. General students under 18 must have their parents’ consent.
The rules for GS are para 245ZT onwards. All new entrants need entry clearance. 30 points under AA, 10 under AC.
CS’ give the 30 provided other requirements are met. The court applied for must be at least NFQ level 3. For courses below degree level in English Language, B2 English is required.
Courses must be full time. Degree level courses have no contact time requirements but ones below require at least 15 hours per week organised daytime study.
Students may not apply in country for a course which commences more than one month after their leave expires (para 245X1) and must have required funds for tuition fees and maintenance.
Tier 5 Temporary Workers
There are five sub-categories to thus subcategory:
1. Creative and Sporting – applicants entering for up to 12 months. Family members may also enter and may work.
2. Charity Workers – no paid employment, but may receive reasonable expenses. 12 months and family members may also enter and work.
3. Religious Workers – must not be a discriminatory religion, or operate against the public interest of the UK. Leave is for up to 24 months. FM may enter and work
4. Government Authorized Exchange – entry for 24 months and FM may enter and work. Applicants must come through approved schemes in three categories (work experience programmes for maximum 12 months, research programmes for maximum 24 months, and training programmes in science or medicine for maximum 24 months). This scheme cannot be used to fill job vacancies or bring unskilled labour to the UK. Must not damage resident labour market and be NVQ level 3 skill schemes.
5. International Agreements – International laws, including the general agreements on trade in services. An application for sponsor licence amounts to a waiver of diplomatic immunity and privileges in connection with the application and sponsor licence. GATS and other related agreements get 6 months, overseas government workers may have leave of up to 24 months.
IA and NA Act 2006
(1) – offence to employ a migrant if they do not have leave (or if it is invalid, ceased to have effect, doesn’t allow employment)
(2) SS can give offender here a penalty of a specified amount
(3) But he doesn’t have to pay if he shows he complied with any prescribed requirements to the employment – (if he checked im status and was deceived not his fault eg but rmb he has no duty to check the status)
(4) Unless he knew the employment was illegal
(5) The SS does not have to show whether (3) occurred
(6) A penalty notice must— (a) state why the Secretary of State thinks the employer is liable to the penalty, (b) state the amount of the penalty, (c) specify a date, at least 28 days after the date specified in the notice as the date on which it is given, before which the penalty must be paid, (d) specify how the penalty must be paid, (e) explain how the employer may object to the penalty, and (f) explain how the Secretary of State may enforce the penalty.
IA and NA Act 2006 S16
Section 16 – objection of a penalty given to an employer
(1) This section applies where an employer to whom a penalty notice is given objects on the ground that— (a) he is not liable to the imposition of a penalty, (b) he is excused payment by virtue of section 15(3), or (c) the amount of the penalty is too high.
(2) Notice must be given to SS
(3) A notice of objection must— (a) be in writing, (b) give the objector’s reasons, (c) be given in the prescribed manner, and (d) be given before the end of the prescribed period.
(4) Where the Secretary of State receives a notice of objection to a penalty he shall consider it and— (a) cancel the penalty, (b) reduce the penalty, (c) increase the penalty, or (d) take no action
(5) Where the Secretary of State considers a notice of objection he shall— (a) have regard to the code of practice under section 19 (in so far as the objection relates to the amount of the penalty), (b) inform the objector of his decision before the end of the prescribed period or such longer period as he may agree with the objector, (c) if he increases the penalty, issue a new penalty notice under section 15, and (d) if he reduces the penalty, notify the objector of the reduced amount.
IA and NA Act 2006 S17
Section 17 – Appeal of a penalty notice
(1) An employer to whom a penalty notice is given may appeal to the court on the ground that— (a) he is not liable to the imposition of a penalty, (b) he is excused payment by virtue of section 15(3), or (c) the amount of the penalty is too high.
(2) The court may— (a) allow the appeal and cancel the penalty, (b) allow the appeal and reduce the penalty, or (c) dismiss the appeal.
(3) An appeal shall be a re-hearing of the Secretary of State’s decision to impose a penalty and shall be determined having regard to— (a) the code of practice under section 19 that has effect at the time of the appeal (in so far as the appeal relates to the amount of the penalty), and (b) any other matters which the court thinks relevant (which may include matters of which the Secretary of State was unaware); and this subsection has effect despite any provision of rules of court.
(4) An appeal must be brought within the period of 28 days beginning with— (a) the date specified in the penalty notice as the date upon which it is given, or (b) if the employer gives a notice of objection and the Secretary of State reduces the penalty, the date specified in the notice of reduction as the date upon which it is given, or (c) if the employer gives a notice of objection and the Secretary of State determines to take no action, the date specified in the notice of that determination as the date upon which it is given.
IA and NA Act 2006 S21
Section 21 – Offence
(1) A person commits an offence if he employs another (“the employee”) knowing that the employee is an adult subject to immigration control and that— (a) he has not been granted leave to enter or remain in the United Kingdom, or (b) his leave to enter or remain in the United Kingdom— (i) is invalid, (ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or (iii) is subject to a condition preventing him from accepting the employment
(2) A person guilty of an offence under this section shall be liable— (a) on conviction on indictment— (i) to imprisonment for a term not exceeding two years, (ii) to a fine, or (iii) to both, or (b) on summary conviction— (i) to imprisonment for a term not exceeding 12 months in England and Wales or 6 months in Scotland or Northern Ireland, (ii) to a fine not exceeding the statutory maximum, or (iii) to both.
(3) An offence under this section shall be treated as— (a) a relevant offence for the purpose of sections 28B and 28D of the Immigration Act 1971 (c. 77) (search, entry and arrest), and (b) an offence under Part III of that Act (criminal proceedings) for the purposes of sections 28E, 28G and 28H (search after arrest).
(4) In relation to a conviction occurring before the commencement of section 154(1) of the Criminal Justice Act 2003 (c. 44) (general limit on magistrates’ powers to imprison) the reference to 12 months in subsection (2)(b)(i) shall be taken as a reference to 6 months.
Migration Watch found the PBS fundamentally flawed in allowing migrants to take up employment without the job always having to be advertised. Insisting that Tier 1 should be suspended, along with the shortage occupation list route, it also argued that graduates and the dependants of labour migrants should have to apply for a work permit and that intra-company transfers should be allowed only if the employee had worked for the company for two years, not six months (Migration Watch, 2008). The British Chambers of Commerce in contrast argued that requiring businesses to advertise jobs for four weeks at Jobcentre Plus is onerous (BCC, 2009), demonstrating the infinite scope for debate on fine-tuning the schemes depending on levels of confidence that the resident labour market will be able to deliver the workers required.
The Coalition government took immediate steps to implement an interim cap on Tiers 1 and 2 and to consult on the level and form of a long-term measure from April 2011. The interim cap was modest, demonstrating some hesitancy in saying no to employers before assessing the scale of opposition to a substantial cut at a time when the economy and employment rates might be expected to be growing once again (UKBA, 2010a, 2010c). The interim cap nevertheless had an impact. Local authorities unable to recruit social workers were among those anticipating a damaging impact on services, and the Mayor of London was critical of the effect on the competitiveness of the capital city (Reid, 2010).
Hitting a cautionary note, the MAC had advised that Tiers 1 and 2 accounted for only half of the non-EEA migrants who came for work in 2009, and that those who came for work were in turn only one in five of all non-EEA migrants. Even closure of Tiers 1 and 2 entirely would thus be unlikely to achieve the low net migration the government sought. It would need to cut not only student numbers but also family migration if it wanted to achieve that goal (MAC, 2010b: 1). Meanwhile, the Home Affairs Committee also concluded that the cap would make little difference to net migration but could do serious damage to the economy. It was concerned at the impact of any steps that might therefore be taken to cut entry through alternative routes (SC Home Affairs, 2010).
Immigration (Restrictions on Employment) Order 200
Excuse from paying civil penalty 3.—
(1) To the extent provided for by paragraph (2) an employer is excused from paying a penalty under section 15 of the 2006 Act if — (a) the employee or prospective employee produces to the employer any of the documents or combinations of documents described in list A in the Schedule to this Order; and (b) the employer complies with the requirements set out in article 6 of this order
(2) An employer will be excused under this article from paying a penalty under section 15 of the 2006 Act— (a) for the duration of the employment, if the document or combination of documents is produced prior to the commencement of employment; or (b) subject to article 5, for the remainder of the employment, if the document or combination of documents is produced after the employment has commenced.
4.—(1) To the extent provided for by paragraph (2) an employer is excused from paying a penalty under section 15 of the 2006 Act if — (a) the employee or prospective employee produces to the employer any of the documents or combination of documents described in list B in the Schedule to this Order; and (b) the employer complies with the requirements set out in article 6 of this Order. (2) Subject to article 5 an employer will be excused under this article from paying a penalty under section 15 of the 2006 Act for a period of twelve months, beginning with the date on which the employee produced the document or combination of documents.
Immigration (Restrictions on Employment) Order 200
5. An employer is excused from paying a penalty under section 15 of the 2006 Act by virtue of article 3(2)(b) and article 4(2) only if prior to the commencement of employment the employee produced to the employer any of the documents or combination of documents described in the Schedule to this Order.
6. The requirements in relation to any documents or combinations of documents produced by an employee pursuant to articles 3 or 4 of this order are that— (a) the employer takes all reasonable steps to check the validity of the document; (b) the copy or copies are retained securely by the employer for a period of not less than two years after the employment has come to an end; (c) if a document contains a photograph, the employer has satisfied himself that the photograph is of the prospective employee or employee; (d) if a document contains a date of birth, the employer has satisfied himself that the date of birth is consistent with the appearance of the prospective employee or employee; (e) the employer takes all other reasonable steps to check that the prospective employee or employee is the rightful owner of the document; (f) if the document is not a passport or other travel document the employer retains a copy of whole of the document in a format which cannot be subsequently altered; and (g) if the document is a passport or other travel document, the following pages of that document are copied in a format which cannot be subsequently altered— (i) the front cover; (ii) any page containing the holder’s personal details including nationality; (iii) any page containing the holder’s photograph; (iv) any page containing the holder’s signature; (v) any page containing the date of expiry; and (vi) any page containing information indicating the holder has an entitlement to enter or remain in the UK and undertake the work in question.