Points-based system: overview

Andrew Osborne, Partner, Sports Group and Head of Business Immigration at Hammonds LLP, begins a series of articles on the new points-based system for employing foreign nationals with an overview.

Introduction

On 29 February 2008 the Government implemented new measures designed to strengthen controls against illegal working in the UK and target skills and labour shortages. The new migration system is underpinned by a points-based five-tier framework, covering all existing routes for those wishing to enter the UK to work, study or train. Each tier has different conditions, entitlements and entry clearance checks, and within tiers there are a number of sub-categories.

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 - 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.

The tier 1 sub-categories (see below) have been implemented in two stages. The "general" sub-category was implemented on 29 February 2008 and the remaining three sub-categories, "entrepreneurs", "investors" and "post-study work", were implemented on 30 June 2008. At the beginning of May the Government announced its proposals in respect of tiers 2 and 5 and it is understood that they are to be implemented in late autumn. The Government has no plans to implement any low-skilled employment schemes at present and, as a result, tier 3 is currently suspended. Tier 4 is to be implemented in the spring of 2009. When all of the tiers have been fully implemented, the points-based system (PBS) will replace around 80 existing different entry routes to work, study or train in the UK.

Tier 1 - highly skilled individuals

Tier 1 embraces four sub-categories of migrants:

• General - those migrants who wish to find highly skilled work in the UK.
• Entrepreneurs - those investing in the UK by setting up or taking over (and actively being involved in the running of) a business.
• Investors - high net worth individuals making a substantial investment in the UK.
• Post-study work - international students who have studied in the UK. This category is intended to provide a bridge to highly skilled or skilled work. People with leave to remain in the post-study work category will be expected to switch into another part of the PBS as soon as they are able to do so.

Since 29 February 2008, any highly skilled foreign nationals currently working in UK who want to extend their stay have been required to apply under tier 1 (general) of the PBS. Since 1 April, the PBS has applied to anyone from India who wants to work in the UK as a highly skilled migrant and, on 30 June, the PBS began operating worldwide for highly skilled foreign nationals.

There are three ways of applying under tier 1 of the PBS:

• entering the UK in a tier 1 sub-category;
• extending a stay in the UK in a tier 1 sub-category; or
• switching while in the UK into or out of a tier 1 sub-category.

Successful applicants entering the UK in, or switching into, the general, investors or entrepreneurs sub-categories are granted three years' leave to stay. Successful applicants for the tier 1 post-study work sub-category receive a single, non-renewable, grant of leave for two years. Subsequent grants of leave in the general, investors or entrepreneurs sub-categories 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.

Highly skilled applicants need to show that they have enough points to qualify to enter or remain in the UK. Points are earned against three objective criteria:

• attributes (criteria specific to each sub-category) (pass mark 75);
• competence in English language (pass mark 10); and
• maintenance (funds) (pass mark 10).

Applicants will have to reach the pass mark for each criterion to gain entry, and to continue to stay when their right to stay is renewed after three years, or to switch into this category if already in the UK.

Each sub-category includes specific criteria for entry into the UK. The detailed criteria for tier 1 (general) are set out in Tier 1 (general) of the points-based system - policy guidance (PDF format, 217.6K) (on the UK Border Agency website). In brief, the specific criteria cover qualifications (maximum 50 points), previous earnings (maximum 45 points), age (maximum 20 points) and UK experience (maximum five points). The guidance also contains details of how applicants can prove their competence in English language and level of financial maintenance.

As mentioned above, migrants in all tier 1 sub-categories except post-study work can apply to extend their leave. For the general sub-category, the extension test broadly uses the same criteria as those for initial entry. However, there is no need to provide further evidence in relation to competence in English language and initial maintenance.

Tier 2 - skilled workers

Tier 2 is aimed at enabling UK employers to recruit individuals from outside the European Economic Area (EEA) to fill particular jobs that cannot be filled by British or EEA workers. Tier 2 (and tiers 3 to 5 when they are introduced) requires migrants to be sponsored by a body licensed by the UK Border Agency. This differs from tier 1 applications for which no sponsor is required.

Licensed sponsors will apply to the UK Border Agency justifying their need to employ the migrants that they wish to admit. If the application is approved, the Agency will issue the employer with a certificate of sponsorship. The employer will then forward the certificate to the migrant worker. Migrants wanting to come to the UK under the PBS will need to have prior entry clearance (ie a visa) and will need to have their certificate of sponsorship from the sponsoring employer to apply for entry clearance. The next article in this series will look at sponsorship.

Tier 2 comprises three sub-categories:

• general - which includes what was previously dealt with by the work permit scheme but excludes temporary assignments of sports people or entertainers;
• sports people; and
• ministers of religion.

As under tier 1 (general), under tier 2 migrant workers can apply to enter the UK, extend a stay in the UK or switch while in the UK. Successful applicants entering the UK in, or switching into, tier 2 will be granted three years' leave. Subsequent grants of leave will be for two years, giving a total period of leave of five years, again potentially leading to permanent residence if desired.

Applicants under tier 2 will also have to show that they have enough points to qualify for entry - including points related to the certificate of sponsorship that they must have before applying. The points can also be earned against three sets of objective criteria: attributes (with sub-category specific criteria); competence in English language; and maintenance (funds). The detailed criteria are set out in Skilled workers under the points based system - (Tier 2) Statement of intent (PDF format, 276K) (on the UK Border Agency website).

The specific criteria for justifying the employment of a migrant worker for the tier 2 (general) sub-category include the following:

• Whether the job offer is in a shortage occupation. The Migration Advisory Committee to the UK Border Agency has published a national shortage occupation list, which is due to be amended on 18 July 2008.
• Whether the resident labour market test has been satisfied. This test is required when the job to be filled is not a shortage occupation. Broadly speaking, to satisfy the test, the job must have been advertised for at least two weeks.
• Whether the job is an intra-company transfer. The transferring job must be at least skill level NVQ 3.

Further specific criteria for sports people and ministers of religion are set out in the statement of intent.

Tier 5 - temporary workers and youth mobility

The UK Border Agency has also issued Temporary workers and youth mobility under the points based system - (Tier 5) Statement of intent (PDF format, 222.5K) (on the UK Border Agency website) containing its detailed proposals for these categories of migrants. The tier 5 sub-categories are "creative and sporting", "voluntary", "government authorised exchange", "international agreement" (eg employees of overseas governments) and the "youth mobility scheme". Successful applicants under the temporary worker sub-categories will be granted 12 or 24 months' leave depending on which sub-category applies. Successful applicants under the youth mobility scheme will be granted up to two years' leave.

The youth mobility scheme will replace the working holidaymaker visa. It is likely to be far more restrictive in terms of the nationalities eligible to apply than the working holidaymaker scheme, which is open to all Commonwealth citizens.

Appeals

Rights of appeal against rejected applications are also changing. Appeal rights have already been abolished for tier 1 (general) and will also be abolished for tier 2 when it is implemented. An exception for both tiers is where the appeal is brought on human rights or race discrimination grounds. However, applicants will be able to seek one administrative review per application if they feel an error has been made in their case. There will be no administrative review for applicants already in the UK, who keep their existing rights of appeal. The right of appeal will remain for any non-PBS categories such as family-based applications from both in and outside the UK. The statement of intent for tier 5 does not make any provision for appeals under that tier.

Switching between tiers

Tier 5 is a temporary route - people in it will not be able to switch out of it once they are in the UK. Those in tiers 1, 2 and 4 will be eligible to switch between these tiers subject to meeting the points and other requirements of the tier to which they wish to switch. Tiers 1 and 2 will potentially lead to the right to permanent settlement in the UK if settlement requirements are met at the time of the settlement application.

Dependants

Dependants will be allowed under tiers 1, 2 and 5. Different rules apply to each tier and further details can be found in Tier 1 (dependant) of the points-based system - policy guidance (PDF format, 120.5K) (on the UK Border Agency website) for tier 1 (general) migrants, and the tiers 2 and 5 statements of intent.

Next week's article will look at sponsorship under the points-based system and will be published on 14 July.

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