Comment: The pitfalls of our points-based immigration system
The system has its flaws and could certainly be improved, but it does offer a flexible way of managing the process for sponsoring migrant workers.
By Tony Haque
The National Audit Office (NAO) recently reviewed the performance of the work routes under the points based immigration system and its report, whilst finding that the system was designed well, highlighted a number of deficiencies stemming from “poor programme management in the initial stages”. As part of its process of reviewing this report, I was called upon by the public accounts committee to testify as to my experience of how the system works in practice, as an immigration solicitor in a large city firm.
In many ways the findings in the NAO report are borne out through my own experience and those of my colleagues. The report found that a poor IT procurement process led to delays, reductions in scope and additional cost. When the points based system was first introduced in 2008 the UK Border Agency (UKBA) launched a new technology platform, the sponsor management system, to allow licensed employers to sponsor migrants to work in the UK. Whilst this system may get the basic job done, it is quite cumbersome, lacks a lot of functionality and is slow to respond to change. For example, despite being built to order by Fujitsu, the system does not allow employers to pull up a simple list of their sponsored employees. Similarly, employers holding a number of certificates under the ICT category are unable to see under which sub-categories (e.g. skills transfer, graduate trainee, short term staff etc.) these have been allocated. This type of basic functionality would allow sponsors to undertake their compliance obligations more easily and reduce the high number of calls that have to be made, at some cost to the sponsor and to the public purse, to clarify these and other issues.
The NAO report confirmed that nearly half of all applicants currently have to call the agency to resolve issues. This is another area where our experience of the system is very much in line with the report’s findings. Whilst UKBA provides a substantial amount of written guidance, this is often unclear and difficult to understand. Even lawyers dealing with such matters on a daily basis can find the guidance difficult to interpret, so it is hardly surprising that applicants dealing with a one-off application struggle to understand the requirements. Unfortunately, in our experience, the advice received from calling the agency’s helplines is often inaccurate and inconsistent, even when the question is relatively straightforward. It is not unusual for a caller to get a completely different answer if he or she calls back with the same question a few minutes later.
The full impact of this lack of clarity regarding the requirements was clearly felt in the early days of the new system. In the quest to create a process that was both fair and objective, under the new system applications that did not meet the prescribed requirements were simply rejected. There was no scope for the agency to exercise discretion and to request additional documents or to try and clarify an issue with an applicant. Either an application met the requirements and was approved, or it did not and it was rejected. This led to a very high refusal rate and countless appeals being submitted, at great cost to the applicant and the agency, often for very minor issues. For example, in relation to the requirement that the applicant could support themselves, applications were being rejected because the applicant’s bank account happened to dip below the required £800 level by as little as one penny on one day during the three month qualifying period. The committee questioned why, if the system was a good one, were lawyers needed and this is a prime example of why many applicants quite understandably felt a need for support with the process.
As a result of the increasing number of refused applications, the agency introduced a policy of “evidential flexibility” which essentially allowed caseworkers some scope to request additional documents. However, despite this being introduced in August 2009, we still find that this policy is applied on an inconsistent basis. As I mentioned in my evidence before the committee, the department responsible for processing licence applications does not seem to exercise this policy. This leads to the situation where a responsible employer submits a licence application, having completed a lengthy due diligence exercise, only to find that the application is rejected due to a minor error with the documentation or payment category. Instead of writing to or calling the employer to resolve the issue, and despite potentially having spent a considerable amount time reviewing the application and supporting documents, UKBA refuses the application and refunds the employer’s money in full. In this situation the employer has to prepare and submit a new online application and resubmit the supporting documents and the agency has to review everything all over again. The impact of this inefficient way of processing applications is evidenced in the NAO report which shows that the unit responsible for processing licence applications had a budget deficit of £10.2 million. It is clear from this that the policy of “evidential flexibility” needs to be universally applied and that this is both a practical and financially prudent measure.
The report also identifies issues with the system for inspecting sponsors, and the committee questioned whether the agency was actually checking to see if potential and existing sponsors were genuine or not. As I mentioned in my evidence, the agency does request a whole raft of prescribed documentation (much of it official documentation issued by other agencies such as HMRC) to verify that a sponsor is genuine. It also visits employers in certain high risk categories before granting a licence. However, once these requirements have been met, the licence system relies upon the trust and co-operation of sponsors and is premised upon the fact that most employers will comply with the requirements. Whether this is a sensible premise is debatable, but in my experience of dealing with a whole range of employers they do generally take their compliance obligations very seriously. In my evidence I gave the example of a large company whose CEO is a sponsored employee. In this type of situation, there is a clear incentive for the company to ensure that it is fully compliant. The committee questioned whether most companies use the system to retain such high level employees, raising the example of large IT outsourcing companies that bring in a high number of low paid software engineers. However, even in this type of situation, the financial benefit to the company of bringing in these employees ensures that it will do everything possible to comply with the requirements.
Members of the committee appeared to take the view that the licence system was being abused and that the intra-company transfer category was being used predominantly to bring in low level employees. However, at least in my practice, most clients using the system have a need to bring in employees with certain proprietary knowledge or key skills that cannot be obtained locally. Quite often these transfers allow our clients to retain jobs in the UK and to train and up-skill the local workforce. The high cost of transferring an employee to the UK on an expatriate basis ensures that our clients only use this category when it is absolutely necessary. The government’s long-term limit on the number of migrants entering the UK for work purposes came into force on April 6th. As I mentioned to the committee, this new cap of 1500 applicants each month will only apply to newly hired employees from overseas. However, although this limit will not apply to long-standing employees being transferred to the UK, the government has tightened up the requirements for such transfers. The minimum salary rate for those being transferred for over a year has been raised to £40,000 and such employees will be limited to a maximum stay of five years. These changes are already having an impact upon the way our clients manage their expatriate assignments. Whilst the system has its flaws and could certainly be improved, it does offer a flexible way of managing the process for sponsoring migrant workers and allows our employers to meet their key staffing requirements.
Tony Haque is a senior associate at Baker & McKenzie with over sixteen years of immigration experience. He was appointed to the Law Society’s immigration law committee in 2009 for a four-year term.
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