Points-based system: frequently asked questions

Andrew Osborne, Partner, Sports Group and Head of Business Immigration at Hammonds LLP, concludes a series of articles on the new points-based system for employing foreign nationals with some frequently asked questions.

The Government's new migration system is underpinned by a points-based five-tier framework. What are the five tiers?

The five tiers are:

• tier 1 - highly skilled individuals who can contribute to UK growth and productivity and for whom no job offer is necessary;
• tier 2 - skilled workers with a job offer, to fill gaps in the UK labour force;
• tier 3 (currently suspended) - low skilled workers to fill specific temporary labour shortages;
• tier 4 - students; and
• tier 5 - youth mobility migrants and temporary workers coming to the UK to satisfy primarily non-economic objectives.

Each tier contains a number of sub-categories. For tier 1, the sub-categories are: "general" (highly skilled migrants), "entrepreneurs", "investors" and "post-study work". The tier 2 sub-categories are: "general" (skilled migrants with a job offer), "ministers of religion" and "sports people". It is envisaged that tier 5 will comprise 12 sub-categories. Details of the sub-categories (if any) for tier 4 have not yet been announced.

Further details of the tiers and sub-categories are contained in the Highly skilled migrants under the points based system - Statement of intent (PDF format, 343K), Tier 1 (general) of the points-based system - policy guidance (PDF format, 217.6K), Skilled workers under the points based system - (Tier 2) Statement of intent (PDF format, 276K), and Temporary workers and youth mobility under the points based system - (Tier 5) Statement of intent (PDF format, 222.5K) (all on the UK Border Agency website).

Have all of the tiers and sub-categories been implemented?

No. Only tier 1 is fully implemented. Implementation of the tier 1 (general) sub-category began on 29 February 2008 and it was fully implemented on 30 June 2008. The remaining three tier 1 sub-categories were also implemented on 30 June 2008.

Tiers 2 and 5 are due to be implemented in November 2008. Tier 3 is currently suspended as migration from the expanded European Union has filled the requisite gaps in the labour market. Tier 4 is due to be implemented in spring 2009.

What criteria will applicants under the points-based system have to satisfy to be successful?

Under the points-based system, applicants will have to show that they have enough points to qualify to enter the UK, extend a stay in the UK (where permitted) or switch between tiers in the UK (again where permitted). Points are earned against three sets of objective criteria: attributes (with sub-category specific criteria), competence in English language, and maintenance (funds). For tiers 1, 2 and 5, the detailed criteria for each sub-category are set out in the relevant statements of intent, and in the policy guidance in relation to tier 1 (general). The criteria for tier 4 have yet to be announced.

Under tier 2 (and tiers 4 and 5 when they are introduced), migrants must be sponsored by an employer or college licensed by the UK Border Agency. Sponsorship is not required for tier 1 applications. Further details of the sponsorship scheme can be found in Guidance for sponsor applications - Tier 2, Tier 4 and Tier 5 of the points based system (PDF format, 610K) (on the UK Border Agency website).

How long will successful applicants under the points-based system be able to stay in the UK?

Successful applicants entering the UK in, or switching into, the tier 1 general, entrepreneurs or investors sub-categories, or entering the UK in, or switching into, tier 2, will be granted three years' leave. Subsequent grants of leave will be for two years, so that the total period of leave is five years, after which an application for permanent residence may be made. Successful applicants for the tier 1 post-study work sub-category receive a single, non-renewable grant of leave for two years. It is envisaged that they may be able to switch into the other tier 1 or tier 2 categories at the end of this period.

Successful applicants under the tier 5 temporary worker sub-categories will be granted 12 or 24 months' leave depending on which sub-category applies. Successful applicants under the tier 5 youth mobility scheme sub-categories will be granted up to two years' leave.

How does an employer or college become a licensed sponsor?

At present, sponsors applying to sponsor migrants under only the tier 2 (general) sub-category (which includes intra-company transfers) can apply to join the register of sponsors. The UK Border Agency has produced guidance for such prospective sponsors (Tier 2 (general) and tier 2 (intra-company transfers) of the points based system - guidance for sponsor application (PDF format, 260K) (on the UK Border Agency website)). From a date yet to be specified during the summer of 2008, sponsors will be able to apply for a licence to sponsor migrants under the other tier 2 sub-categories (sports people and ministers of religion) and tiers 4 and 5. Sponsors will have to register separately for each tier and sub-category under which they wish to sponsor migrants.

Applications for a licence can be made electronically only. Once an application has been made, the applicant employer or college must send the UK Border Agency a set of copies of the required documents and the correct fee within 10 working days. The documents to be provided depend on the type of organisation applying for a licence. The Agency has published lists by organisation type and these are set out in appendix A of the licensing guidance. For details of fees see Points-based system: sponsorship in this series.

What happens if an application to become a licensed sponsor is successful?

Successful applicants will usually be granted an A-rating. In certain circumstances (for example if it has an unspent conviction in relation to a serious offence in the conduct of its business, such as a conviction under the national minimum wage legislation), an applicant employer or college may be granted a B-rating. Further details of the circumstances under which a B-rating may be granted are included in the licensing guidance.

B-rated sponsors are subject to a more rigorous inspection regime by the UK Border Agency and will also have to complete an action plan (usually over a period of three months, depending on the circumstances) agreed with the Agency. At the end of that time the Agency will decide whether the sponsor should be upgraded, kept at a B-rating, have a new action plan drawn up, or have its licence withdrawn altogether.

A register of sponsors, including details of licensed sponsors' names, locations, ratings and the tiers and sub-categories for which they are licensed, is available on the UK Border Agency website.

Do unsuccessful applicants have the right of appeal?

There is no right of appeal against the refusal of a licence application. However, unsuccessful applicants can reapply at any time. They will, of course, need to ensure that the reasons for their earlier refusal no longer apply, or risk being refused again.

What are the consequences of a licensed sponsor failing to comply with its sponsors' duties?

All licensed sponsors are required to fulfil certain duties. Some of the duties apply to all sponsors, whereas other duties apply only to sponsorship under certain parts of the points-based system. The generic duties are: record-keeping, reporting, complying with the law, and cooperating with the UK Border Agency.

Failure to comply with its sponsorship duties may lead to a sponsor's licence being withdrawn or downgraded, or receipt of a warning from the UK Border Agency. Alternatively, the Agency may take no action. The factors that the Agency will take into account when deciding what action to take include the seriousness of the conduct concerned and the harm it has done, and whether the breach is part of a consistent or sustained record of non-compliance or poor compliance, or a one-off incident. The Agency will also consider whether any action was taken by the sponsor to mitigate the consequences of its conduct (such as alerting it promptly in the event of a migrant going missing). Where the breach is caused by the actions of an individual member of staff, the Agency will take account of any internal action that the organisation has taken in respect of that individual, such as dismissal, relocation to another area of work, or re-training as appropriate.

If a sponsor's licence is withdrawn, the leave of the migrants sponsored by it will be cut to 60 days or curtailed immediately, depending on whether the migrant concerned was complicit in any dishonest actions that led to the sponsor losing its licence.

If the Agency is considering action against a sponsor that could lead to the withdrawal of its licence, it will suspend any current applications for entry clearance or leave to remain by migrants who were to be sponsored by that sponsor at least until a decision has been made on the sponsor's status.

Can an employer or college cease being a sponsor?

If a sponsorship licence holder no longer wishes to sponsor migrants and no sponsored migrants are working for it, it may surrender its licence by writing to the UK Border Agency. The sponsor will then be removed from the register of sponsors. It may reapply for a licence at any time in the future.

Next week's article will be the first in a series on the repeal of the statutory dispute resolution procedures and will be published on 4 August.

Andrew Osborne is Partner, Sports Group and Head of Business Immigration at Hammonds LLP (Andrew.Osborne@hammonds.com).

Further information on Hammonds LLP can be accessed at www.hammonds.com.