The new system is intended to kill two birds with one stone. Firstly, it is intended to simplify the number of possible routes of entry into the UK. Secondly, it is intended to make the tracking (or at least recording initial entry) of immigrants less of a lottery.
How will this effect employers?
Simplifying the number of possible routes of entry into the UK sounds positive. That said, the Government has dismissed the number of categories that have evolved over years due to specific need (whether cultural, political or business). Most employers are familiar and, by and large, happy with the applications that affect them. Most employers would employ immigrants under the provisions of the work permit arrangements. So, the fact that there are another 80 or so possible applications is — to a large degree — irrelevant.
Why change the work permit application?
The Government has suggested that the current system is inefficient given that, in many cases, two applications need to be made (for example, an initial work permit application followed by a visa application). These applications serve completely different purposes. Under the proposed system, a single application is filed. It may be supported by, for instance, an offer letter from the employer but it is the employee who is responsible for lodging and completing the application.
As a result, the employer is no longer in control. This is disadvantageous for a number of reasons. Employers who have built up any experience of the requirements of immigration applications will be limited with the influence they can exercise. The Border & Immigration Agency (formerly Work Permits UK), which operates in the same time-zone as the employer, becomes obsolete, replaced by an entry clearance officer who is possibly on a twelve-hour time difference. Finally, in the case of a senior executive moving from an overseas office to one in the UK, they now have to complete the entire application process instead of concentrating on running a company.
While these issues are problematic in themselves, it is removing the safeguards of the current two-stage process which causes concern on a more basic human rights level. Currently, the visa application is the ‘immigration’ application. Without, for instance, a work permit, the visa application cannot be filed for leave to come to the UK as a work permit holder. Therefore, the employee is protected from making an inadequate application. Under the proposed ‘one stop shop’ process, the economic (e.g. work permit) and immigration applications are filed as one. If there is a technical error with the economic application, the visa application is therefore rejected.
Given that, historically, two visa application refusals have led to it being virtually impossible to travel to the UK, this has extremely serious consequences.
The Government has countered this by saying that the proposed points-based system will be so clear that it should be impossible to present an application without being certain of its chances of success. There is a precedent for this. The highly-skilled migrant programme was revised in November 2006 with new criteria introduced from December 2006. Under the revision, the Government removed evidence and points available for work experience, leaving age, earnings and academic qualifications (together with a small additional bonus for previous time spent within the UK). In February this year, the Government released a statistic stating that out of 2,000 applications submitted under this criteria, just over 600 had been approved. How can this be if the requirements are so clear? One application was rejected because a P60 was not included in the application, even though it was a tax return that was requested in the guidance notes. Even the Inland Revenue does not consider a P60 and a tax return to be the same. This is an example of how applications can be rejected on simple technicalities as opposed to merit. This now becomes a visa refusal.
Alongside the change in the routes of entry, there is new legislation: the Immigration, Asylum and Nationality Act 2005. Employers will be well aware of the Asylum and Immigration Act 1996, and in particular section eight, which sets out the documents and process to ensure that all employees are legally entitled to work in the UK. The 1996 Act makes it a criminal offence for an employer to employ somebody who does not have a valid permit. The new Act creates a civil penalty. Cynics have suggested that this is purely a money-making exercise and it is hard to disagree given that a civil penalty can be imposed on ‘suspicion’, i.e. without any proof. The employer then has to prove compliance.
What can the employer do?
Watch this space. Despite stating that the new points-based system will come in from 2008, scant detail about when, or how, has been released. Employers will be able to register from the end of the year. Once registered they will be given an A or B rating. An A rating should mean that a subsequent application by an overseas worker is approved (providing all other criteria are met) whereas a B could mean delay or further investigation.
How do employers register?
Again, watch this space. Most employers will have a secure process in place already. Relevant checks are made on the commencement of employment (or before) and personnel files maintained. The 2005 Act states that employers should update those records at least annually (more often if they have actual knowledge of the change in circumstances). The diligent employer will also realise that this type of questioning could be seen as discriminatory unless asked of every single employee. This is something that appears to have been overlooked by Government.
Gavin Jones is an associate at Taylor Wessing.