One of the really significant changes to UK immigration legislation during recent years has been the introduction of the Points Based System for managing UK immigration.  The introduction of Tier 1 and Tier 2 of the system has had a particularly profound impact for those overseas nationals who seek either to enter or to remain in the United Kingdom.

Tier 1 of the Points Based System superseded the Highly Skilled Migrant Programme (HSMP) in March 2008.  Points based migration was introduced to cater for highly-skilled individuals who don’t require an offer of employment in order to immigrate into the UK.  The British government recently took the decision to close the Tier 1 General Visa category to new applications as part of its strategy to reduce overall immigration.  The Tier 1 Post Study Work category will be closed in April 2012 as part of the same policy.

Tier 2 replaced the Work Permit Scheme in November 2008, which had enabled skilled persons with a firm job offer to enter the UK in order to take up employment.  One of the major differences is that employers recruiting foreign nationals are required under the new terms to register with the UK Border Agency (UKBA) as a Licensed Sponsor.  Failure to do so can lead to the revocation of an employer’s right to take on foreign nationals in the future as well as a substantial fine.

As well as forming part of the government’s UK immigration control strategy, the Points Based System was designed to allow the government to cherry pick the most talented workers whose contribution to the success of Britain’s economy is considered likely to be the greatest.  It was developed in close consultation with employers, education providers and users of the current UK immigration system.  Points based migration is already a feature of certain other developed nations such as Australia.

The intended outcomes of the new system include:

• Easier identification and encouragement of potential migrants deemed to have the most to contribute to the UK economy.
• A more objective and transparent UK immigration process for applicants.
• Built-in support from employers, education providers and other involved agencies to ensure improved compliance and minimise the potential for abuse.
• Closing employment routes for non-EU nationals to the UK for low-skilled workers other than where it can be demonstrated that there is an existing need which cannot be fulfilled by resident workers.

The points based visa concept was intended to make it quicker and easier for employers and educational institutions alike to bring in those migrants they specifically needed.  It also aspired to consolidate the previous eighty Work Permit and study UK entry routes into five more manageable tiers.  In essence, under the Points Based System the more skills one has and the more those skills are sought by potential employers, the more points one will accrue thus making it more likely that the requirements of the UK immigration system will be met.

Identifying and Responding to Skills Gaps and Labour Shortages

As an integral part of its points based migration system the Home Office has created the Migration Advisory Committee (MAC), an independent advisory body the objective of which will be to provide up-to-date intelligence as to where skills gaps are evident within the UK labour force.  Part of MAC’s brief will be to recommend changes to the system where it considers there is a potential for these gaps to be filled through managed migration.

As part of its strategy of discouraging overstaying, the Points Based System will ensure that all foreign workers and students have a licensed UK sponsor. This places the onus upon businesses and educational establishments to take proactive responsibility for ensuring foreign workers and students comply with UK visa regulations.

PBS – Sponsorship Licence

One key feature of the UK Immigration Points Based System is that non-EU workers are required to have a sponsor, who must be licensed before bringing a person into Britain on a UK visa.

The Border and UK Immigration Agency has sole responsibility for issuing sponsorship licences, grading sponsors and undertaking site. The sponsor has the absolute responsibility of ensuring that the conditions of the UK visa sponsorship licence are met at all times.

UK immigration Requirements under Sponsorship License:

• Sponsors must be able to demonstrate that they have all  the relevant procedures in place to ensure compliance with UK immigration law
• If found to be in contravention of British immigration law the person or persons responsible may be fined up to £10,000 or sentenced to up to two years in prison
• If a sponsor is found to have been granting sponsorship outside of PBS rules its licence may be suspended or revoked, all overseas nationals under their jurisdiction will have their leave in the United Kingdom curtailed and a fine may be imposed
• Only parties registered with OISC and solicitors on the roll of the Law Societies of England and Wales, Scotland and Northern Ireland are permitted to offer advice under UK immigration rules
• A sponsor has the responsibility of ensuring that the overseas qualification is comparable to a UK NVQ level 3 or above and that ALL advertising for the position is compliant with changing UK immigration criteria
• Those sponsored will still have to apply for entry clearance and can be refused a UK Visa if the clearance officer has any legitimate concerns about the case
• No right of appeal exists under British immigration law

The Principles of Sponsorship

The UK Immigration Points Based System from tier 2 to tier 5 means all migrants other than those travelling to the United Kingdom through family based immigration need a UK sponsor before they can apply.  The UK visa sponsor can be a company, a place of education or a place of worship such as a church or temple.

All non-EU nationals intending to remain for six months or more also require a biometric ID card.

This means places more responsibility upon sponsors, thereby ensuring that they remain compliant with the requirements at all times.  They also remain wholly responsible for the conduct of those whom they sponsor.  If the UK Border and Immigration Agency has reason believes a sponsor lacks the relevant procedures to ensure total UK Immigration compliance the sponsor risks having its licence will be revoked.

Sponsorship is based on two basic tenets, firstly that UK employers, educational providers and other institutions that stand to benefit most from skilled migration accept the responsibility for helping to prevent abuse.

Secondly, the Points Based System seeks to ensure that those immigrating into the UK are eligible to do so, and that they have a genuine offer of work or study.

It needs to be understood that a successful award of a sponsorship certificate does not ipso facto constitute a right of entry to the UK, but rather it fulfils ticks the first box thereby allowing a candidate to progress to making an application for a UK visa.

Once the applicant arrives in the UK their sponsor will be obliged to take complete responsibility for them.  This includes keeping adequate records of each person and informing the Border and Immigration Agency of any instances in which a sponsored person fails to turn up for work or study and takes absence without permission for any significant period of time.

UK Immigration Compliance

All these requirements are enforced by the Border and Immigration Agency which monitors sponsors through compliance checks and site visits to the sponsor’s premises, sometimes impromptu, to review the sponsor’s management of its obligations.

The Border and Immigration Agency will also review a sponsor’s activity through review points based on numbers of certificates.  Where sponsor is deemed not to have met the required standards prosecutions may follow.

Sponsors are rated into either of two categories by the Border and Immigration Agency, A or B.  The majority will be A rated although in some cases a B grade may be awarded instead based on its risk assessments.

A rated sponsors can be demoted to a B rating if the Agency feels that it is not meeting its obligations their entirety.  In this instance there is a right of appeal.

Penalties for non-compliance may be issued where it is considered appropriate to do so.  Civil remedies can be pursued in situations of negligence or unlawful employment practices. Where it is believed that a sponsor is knowingly employing migrants illegally criminal action will be taken instead (or as well as) which can potentially lead to a maximum of two years imprisonment and/or an unlimited fine.