Students who wish to apply under the existing student visa system must act now, or prepare to meet the new criteria.

At a meeting hosted by the UK Border Agency (UKBA) in London last week, further details of Tier 4 of the Points Based System were revealed to an audience of Educational providers. The main details are:

• Tier 4 will commence at the end of March 2009
• Educational providers recruiting students from outside the EU will need to register as sponsors with the UKBA
• Sponsoring organisations will take on far greater responsibilities for policing the system
• Sponsoring colleges will continue with paper based offer letters until electronic versions, ‘Confirmation of Acceptance of Studies’ (CAS), are introduced in the Autumn of 2009 for in country students
• Full Sponsorship Management System (SMS) expected to be operational by February 2010, at which time all students will require a CAS from a sponsoring institution
• Visas will be tied to a specific educational provider
• Students applying to come to the UK will need to score at least 40 points under the new on-line system
• 30 Points will be awarded for a confirmed place or CAS form a sponsoring educational provider
• 10 points will be awarded for Maintenance and Funds Test and specific amounts of funds of around £9600 will need to be shown
• Appeal rights abolished and replaced with an ‘Administrative Review’
• No visas for courses below NVQ3

General students on courses lasting more than 12 months will be expected to show they have sufficient funds to pay for the first year of fees plus £9600 living allowance (British Council figure), plus a further £535 per month for each dependant. A slightly lower figure will be accepted for students living outside the London area.

Student taking vocational courses will have to match the ‘on the job’ training with classroom studies. Colleges will be forced to monitor the hours spent on work placement, although quite how this will be achieved in practice was not fully explained during the Q & A session.

In a recent BBC report, academics have petitioned Downing Street, “urging the government to withdraw new immigration rules for overseas students in the UK”.

Over 4500 signatures have been collected, organised by Ian Grigg-Spall, academic chair of the National Critical Lawyers Group and honorary fellow at Kent Law School.

Mr Grigg-Spall told the BBC that there had to be trust between teacher and student.

“Now if they think that we’re wearing two hats – teacher, but also a hat labelled ‘immigration officer’ – I think that’s a complete contradiction,” he said.

“That’s why I say it’s a breach of our university autonomy and why in fact it’s a breach of academic freedom.

“This is a slippery slope, this is a dangerous slope and as a human rights lawyer, I am very worried.”

Candidates will still have to obtain entry clearance or a visa from British Embassy post.

Under the current system, entry clearance refusals can be challenged on appeal and the case heard before an independent Immigration Judge at the Asylum and Immigration Tribunal (AIT).

Under Tier 4 students will no longer have a right of appeal against an entry clearance refusal. The right of appeal is being replaced by an ‘administrative review’ by an Entry Clearance Manager.

The UKBA argue that because decisions under Tier 4 will be more transparent and clear cut and based only on factual information, there is no need for an appeal system. Entry Clearance Officers (ECO’s) will not, for instance, be able to refuse on ‘intention’ to study or return home after completion of the course.

Should this prove to be the case, students applying for a visa under Tier 4 could be more assured of a visa than under the current ‘hit and miss’ system.

But there will be disadvantages under the points system. For instance, visa holders will be tied to one institution and changing would require anew visa. Maintenance rules will also be tighter and those in vocational courses, such as NVQ’s, will be subject to stricter conditions and controls.

When you weigh up the pro’s and con’s of both systems, most students will feel they have a better chance of success if they apply now than they would under Tier 4.

There are also advantages for those holding the current student visa, as opposed to one issued after March 2009.

Conclusion – get moving if you want to beat the Tier 4 deadline

If prospective students want to ‘beat the points system’ they must act now. Only students applying for visas for courses starting before the end of March will be able to apply under the current system.

In other words, you need to get your applications in by January/February to obtain the visa (you must allow at least a month for the Embassy to process an application), which means you really need to start enrolling and completing the VAF and requirements this month or by early January at the latest.

VFS, which processes visa applications on behalf of the British Embassy in Manila, report that they are “inundated” with student visa applications at the moment and delays in processing are expected.

Those who can apply now will also have the advantage of a full right of appeal, where their case can be heard before an independent judge rather than an Entry Clearance Manager carrying out an Administrative Review.

Life will go on after Tier 4, but we do not know exactly how things will pan out after March. Students are worth £5 billion to the economy according to the Home Office.

Will we have a robust system with reduced scope for abuse, or a scheme as wide open as a ‘Self Cert’ mortgage with no income checks?

On the eve of the so called biggest immigration shake up in 45 years, with Tiers 2 and 5 going live in a few days time, Immigration Matters asks: What is the point of the Points Based System?

Background

When plans to set up the new Australian-style points system (PBS) were announced by the then Home Secretary Charles Clarke in 2006, it was heralded as a scheme to provide a robust “world class migration system” which would “revolutionise” the way migration worked in the UK.

In the 2006 command document: ‘A Points Based System: making Migration Work for Britain’ Mr Clarke outlined his plans promising that by “simplifying the current complex system in this way we can ensure that only those who legitimately apply and have the necessary skills can come to this country”.

He also made clear that he expected employers and educational institutions to “take ownership of migration” so that “they, rather than just the Home Office alone, will be able to vet who comes into the UK according to the skills and talents of individuals they feel they need to enhance their sector”.

The document talked of a more transparent, faster, one-stop decision making process, but with “improved compliance and reduced scope for abuse”.

Plans were put in place for a five tier framework, replacing the existing 80 routes in to the UK, and the creation of a new sponsorship role for employers and educational providers.

A Migration Advisory Committee was formed to advise the Government on employment trends and the need for migrant workers.

The points scheme formed part of a major overhaul of the immigration system including: tighter border controls and a change in rules on settlement and citizenship. Since then we have seen the formation of the UK Border Agency, the 2007 UK Borders Act and the publication this year of the draft Citizenship Bill set to have far reaching effects on the way migrants are treated for settlement in the UK.

There have also been hundreds of amendments to immigration rules and changes to the Work Permit criteria.

Charles Clarke is no longer in office having been replaced by John Reid during the ‘escaped foreign prisoners’ crisis. Mr Reid, who famously said the Home Office was “not fit for purpose”, was himself replaced by the current Home Secretary Jacqui Smith, not long after setting up the BIA, which was later replaced by the UK Border Agency (UKBA).

The Current State of Play

Tier 1 for highly skilled migrants was launched earlier this year and Tiers 2 and 5 are set to go live this week on 27 November. Tier 4, for students, will be phased in next year and Tier 3, for low skilled migrants has been put on ice for the foreseeable future.

Compulsory identity cards are to be issued to certain categories of foreign nationals such as students from this month, as a trial for the eventual roll out of ID cards on the rest of the population.

The rhetoric has dramatically changed since 2006 when a more positive spin was put on the new system. The current Minister for Borders and Immigration, Phil Woolas, portrays the points system as a means of controlling immigration and recently said:

“Had the points system been in place last year there would have been 12 per cent fewer people coming in to work through the equivalent Work Permit route. On top of this, the strict new shortage list means 200,000 fewer jobs are available via the shortage occupation route.”

Under PBS, employers and education providers, such as colleges and universities, must apply to the UK Border Agency for a licence to ‘sponsor’ migrants to the UK.

Once registered, employers can issue ‘Certificates of Sponsorship’, which replace Work Permits, to migrants they feel are suitably qualified, but will carry greater responsibility for ensuring they are legally working in the UK.

In a Ministerial statement on 4 November 2008 Mr Woolas said:

“All migrants will need a sponsor, who will need to have been licensed beforehand by the UK Border Agency. No one will get a licence unless we are satisfied that they are bona fide, honest and capable of complying with their duties, which include informing us if the migrant disappears, or does not turn up for the job.

“In most cases, the sponsor will need to have advertised the job to UK workers before being able to bring in a migrant. This will not apply where the migrant is transferring from an overseas branch of the same company, or where the job is on the list of shortage occupations that we will publish shortly. That list will be drawn up following the advice that the Government have received from the independent Migration Advisory Committee.

“Unless the job is in a shortage occupation, migrants will need to score a minimum number of points for a combination of their qualifications and prospective earnings in the UK before they will be able to come here. We will be able to adjust the points threshold to ensure that only the migrants we need are able to come.

“Finally, there will be an English language requirement for most migrants under tier 2, to help their integration into society.”

Mr Woolas set the fees for Entry Clearance at £205 and £400 for leave to remain. In addition the employer will pay a setting up charge of between £300 and £1000 depending on size, plus a £170 fee for each certificate.

Around 2000 employers had been granted a licence – out of a possible 60,000.

Work Permits v PBS

Application Process:

Work Permit Scheme
Work Permits UK in Sheffield receive an application for a Work Permit from an employer. After considering the employer’s information, applicant’s references and qualifications, and checking that the job fits Work Permit criteria and, where applicable, the resident labour market test, the case worker makes a decision. The application is then checked by a supervisor before a Work Permit is issued – usually after several ‘further information’ requests such as additional employer trading proof or staff lists and hierarchy charts to compare against the vacancy.

PBS – Applicant applies on-line and if sufficient points are gained the employer issues Sponsorship Certificate (a number which replaces the paper based Work Permit)

Work Permit Scheme – Employer’s details and confirmation of continued trading checked with each application for a new Work Permit.

PBS – After the one off application process a licence is issued for four years.

Work Permit Scheme – Job vacancy, advertising and resident labour market test (where the occupation is not on the shortage list) check and applied with every Work Permit application.

PBS – Employers are issued with an agreed allocation of Sponsorship Certificate unique numbers, which they the issue to their overseas job applicant

Entry Clearance procedure:

Work Permit Scheme – A decision is made on a Work Permit and if granted the applicant applies for Entry Clearance (visa) at the British Embassy visa office. An Entry Clearance Office checks the applicant’s suitability and makes the final decision.

PBS – The employer issues a Sponsorship Certificate and the applicant applies for Entry Clearance (visa) at the British Embassy visa office. An Entry Clearance Office checks the applicant’s suitability and makes the final decision.

Entry Clearance Refusals

Work Permit Scheme – Entry clearance refusals can be challenged on appeal and the case heard before an independent Immigration Judge at the Asylum and Immigration Tribunal (AIT).

PBS – Entry clearance refusals have no right of appeal, but can be ‘administratively reviewed’ by an Entry Clearance Manager.

Summary – if it isn’t broke why fix it?

It is clear that there are many similarities between the two schemes and that many of the aims of system, for instance to reduce immigration, could have been achieved by altering or ‘retuning’ the existing Work Permit scheme. In this respect the points system may prove to be pointless.

Furthermore, many of the promised benefits such as a single decision making process have not been delivered.

The JCWI said in a statement on PBS in 2006 that the five tier system appears to duplicate the eighty schemes and is repackaging them into five categories.

The JCWI also warned against outsourcing the functions of Work Permits UK to Entry Clearance Officers overseas.

At the ILPA (Immigration Law Practitioners Association) AGM yesterday (where one of the guest speakers was Peter Wrench who is leading the work on the Immigration and Citizenship Bill for the UK Border Agency) several members, including ILPA President Ian Macdonald QC, criticised the Home Office for the way this and other changes were being forced through without proper consideration and consultation.

Ian Macdonald said there could be a backlash against the Government once members of the public realise the responsibilities for migration being forced on them by the Home Office.

Fines and possible criminal actions will start to bite as employers, which include individuals employing a Nanny or Domestic Worker, struggle with the many checks they will be forced to make to verify a worker’s right to work in the UK.

The lack of proper checks and inspections on employers applying for licences was also highlighted by Keith Best of the IAS and ARIA.

One leading immigration Lawyer said that she had helped one of clients with an on-line sponsorship application and then sent further required documents and a letter to explain that outstanding documents needed to complete the application would follow. Expecting an acknowledgement and request for an inspection visit from the UKBA, she was surprised when four days later a licence was issued to the employer without the complete requirements.

The current sponsorship application process seems far removed from the statement by Phil Woolas that “no one will get a licence unless we are satisfied that they are bona fide, honest and capable of complying with their duties”.

Quite how the UKBA applications team will be able to satisfy themselves that an employer is “honest” is another matter.

Is this the “robust” system with “improved compliance and reduced scope for abuse” as promised by Charles Clarke?

Self Cert Work Permits

Even where checks are made and all the right boxes are ticked, giving employers ‘carte blanche’ to issue certificates virtually allowing migrant workers into the UK is wide open to error, fraud and abuse.

We could be heading for a credit crunch style disaster caused by banks offering ‘Self Cert’ mortgages to borrowers who now cannot replay their loans.

The Home Office would argue that they do have compliance checks and that an Entry Clearance Officer will be making checks on the applicants. However, there are serious flaws in this argument.

Firstly, to rely on compliance checks on employers is like arguing that you should have no staff and no ticket barrier on the trains, and then rely on a few hundred ticket inspectors to catch fare dodgers and issue fines. It’s been tried and it does not work.

Secondly, whilst Entry Clearance Officers may be able to make checks on an applicant in their own country, they cannot possibly adequately verify employers and the job requirements in the UK and will not be required to do so.

The old cliché “if it isn’t broke don’t fix it” is one that should have been considered when successive Ministers, since put out to graze, decided on sweeping changes costing many millions of pounds of taxpayers money – much of which will never be recovered by virtue of the scheme’s success reducing immigration.

The Work Permit and other schemes being swept away, such as TWES or the Working Holiday Maker Scheme, worked perfectly well for many years. When they needed changing or tweaking this was done by simple rule changes or abolishing the scheme altogether as in the case of the Sectors Based Scheme.

The current scheme is like a trusty old family Volvo which might not go very fast, but gets the job done hardly ever goes seriously wrong. It may need a little work and the odd service, but otherwise it’s easily good for another couple hundred thousand miles.

The PBS is like a flashy new car with lots of bells and whistles and electronic gadgets with invariably go wrong. It may go faster than the old Volvo, but there is also a far greater chance of a fatal accident.

Some, like Peter Wrench, would argue that the system needed updating and reforming, although it should be pointed out that Work Permits UK were not exactly working with quill pens.

And for mr Woolas to suggest that only PBS will allow those people in to Britain that the country needs is a gross insult to his Home Office colleagues and staff at Work Permits UK. Who does he think that they have been allowing in for the last ten years?

Whether or not PBS will succeed in delivering a world class immigration system remains to be seen. There is already talk of major companies like Google choosing Switzerland over London as its European headquarters because of inflexible Government policy.

Finally, if Mr Woolas and the Conservatives gets their way and slap a cap on non-EU migration, the points based system could become a ‘white elephant’, like having an expensive dining table with the finest china and crystal glasses, but with nobody coming to diner.

For the latest immigration news visit www.immigrationmatters.co.uk

If you need immigration help with the Points Based System or advise on Work Permits, Visas or appeals, please email us at: info@immigrationmatters.co.uk