SYSTEM DESIGN
3 Architecture of
the new system
Rationale for a new system
27. In July 2005 the Government published a consultation
document on a proposed Points Based System for migration, Selective
Admission: Making Migration Work for Britain. Following the
conclusion of the consultation, the Government's detailed proposals
for the Points Based System were published as a Command Paper,
A points-based system: Making Migration Work for Britain, in
March 2006. The then Home Secretary, Charles Clarke, set out the
rationale for the system:
The system we have at present is complex and difficult
to understand. We will bring all our current work schemes and
students into a simple points-based system designed to ensure
that we are only taking migrants for jobs that cannot be filled
from our own workforce and focussing on the skilled workers we
need most like doctors, engineers, finance experts, nurses and
teachers.[26]
The Points Based System was launched on 28 February
2008, with the implementation of Tier 1. Tiers 2 and 5 were implemented
on 27 November 2008; Tier 4 on 31 March 2009.
The Tiers
28. The Points Based System consists of five
tiers, each of which represents a possible route for non-EEA nationals
to enter the UK to work, train or study. Tier 1 covers highly
skilled individuals, Tier 2 covers skilled workers with a job
offer to fill gaps in the UK labour force, Tier 3 relates to low-skilled
workers and is suspended indefinitely (until the Government decides
that there is a need for unskilled workers from outside the EEA),
Tier 4 relates to students, and Tier 5 to youth mobility and temporary
workers, as follows:
| Tier
| Category
| Replaces
|
| Tier 1 | Highly Skilled Migrants
| Highly Skilled Migrant Programme
|
| Tier 2 | Skilled workers with a job offer
Intra company transfers
| Work permits scheme
Intra corporate transfers
|
| Tier 3 (suspended)
| Low skilled workers for temporary labour shortages
| Sector Based Schemes
|
| Tier 4 | Students
| Students |
| Tier 5 | Youth mobility and temporary workers
| Temporary routes, such as working holidaymaker
|
29. Points are allocated according to attributes, such as
age, qualifications, earnings, language and funds, with a different
number of points needed for each of the five tiers. Tiers 3 and
5 are temporary routes, and migrants will not be able to switch
out of them once in the UK. Those in Tiers 1, 2 and 4 will be
eligible to switch between tiers subject to meeting the requirements
of the tier they wish to switch into. Dependents are allowed under
Tiers 1, 2, 4 and 5. However, dependents will not be allowed to
work where accompanying a student (tier 4) or a temporary worker
(tier 5) who has been given permission to remain for less than
12 months in the UK.
Migration Advisory Committee and shortage
occupation lists
30. The Government set up a Migration Advisory Committee (MAC)
in 2007 to advise on labour market shortages to inform the design
of the Points Based System. The Committee's remit is to
Produce shortage occupation lists for the UK and for Scotland
only (Tier 2 skilled employment). These lists comprise occupations
where, in the MAC's view, there are shortages which can sensibly
be filled by enabling employers to recruit migrants".[27]
31. The lists consist of occupations which the Migration Advisory
Committee judges to be skilled and to be suffering a labour shortage
that can sensibly be filled by enabling employers to recruit migrants.
Occupations on the lists attract extra points, and therefore individuals
in these occupations automatically gain the points needed for
entry, provided they have a job offer from a licensed sponsor
and meet requirements relating to English language and maintenance.
32. The first lists were published in August
2008. They were revised in November 2008, and again in April 2009.
The latest UK list contains certain specialities within occupations
including civil engineers, medical practitioners, veterinarians,
secondary education teachers, social workers, nurses, dancers
and choreographers, musicians, chefs, and care assistants.[28]
The lists are fully revised every two years, and partially reviewed
every six months.
33. The Migration Advisory Committee describes
the process it uses for assessing shortage occupations as follows:
We have used a three-stage approach to drawing up
the shortage occupation lists for the UK and Scotland.
- First, we consider whether
individual occupations or categories of jobs are sufficiently
skilled to be included on the shortage occupation lists;
- Then, we assess whether there is a shortage of
labour within each skilled occupation; and
- Finally, we consider whether it is sensible for
immigrant labour from outside the EEA to be used to fill these
shortages.
When addressing these questions, we used a hybrid
method that combined the consistency and comprehensiveness of
a 'top-down' approach using national-level data with the fine-grained
detail and contextualisation of a 'bottom-up' method using evidence
relating to particular categories of jobs and sectors.[29]
Resident labour market test
34. An employer can recruit a migrant to a Tier
2 job which is not on the shortage occupation lists only when
they can demonstrate that they have carried out a resident labour
market test. The test is designed to ensure that no suitably qualified
settled worker can fill the job, before it is offered to a migrant.
The test requires that the employer must have advertised the job
in JobCentre Plus and as agreed in a sector-specific Code of Practice
for at least two weeks (or one week where the salary is higher
than £40,000). When a Sponsor issues a Certificate of Sponsorship
for a non-EEA national, they are required to confirm that a resident
labour market test has been conducted.
Scoring points
Points are awarded for attributes such as age, previous
or prospective salary, and qualifications. The points criteria
vary somewhat by Tier, as follows.
TIER 1
35. Under Tier 1 applicants must score at least
95 points, including at least 75 points scored for primary attributes,
as outlined in the following tables:
| Age |
Under 28 years
| 28 or 29
| 30 or 31
| 32 |
| Points | 20
| 10 | 5
| 0 |
| Qualifications
| PhD |
Master's degree
| Bachelor's degree
|
| Points | 50
| 35 | 30
|
| Earnings
| <£20,000[30]
| £20,000-£22,999
| £23,000-£25,99
| £26,00-£28,999
| £29,000-£31,999
| £32,000-£34,999
| £35,000-£39,999
| £40,000+
|
| Points | 0
| 15 | 20
| 25 | 30
| 35 | 40
| 45 |
In addition, 5 points are awarded if £16,000
or more of the applicant's previous earnings for which points
are claimed were earned in the UK, or the applicant has completed
full-time study in the UK for at least one full academic year,
or has been awarded a qualification at bachelor's degree level
or above.
36. The applicant must also gain 10 points for
English language, and 10 points for available funds (maintenance).
The 10 points for English language are awarded if the applicant
is from a majority English speaking country, or, if not, for an
approved English language test or a degree taught in English.
The 10 points for maintenance are awarded to applicants who are
overseas and have £2,800 in available funds, or to applicants
who are in the UK and have £800 in available funds.
TIER 2
Under Tier 2, at least 70 points, including 10 for
maintenance and 10 for English, are needed from the following
table to apply for entry.
| Section |
Certificate of Sponsorship
| Qualifications
| Prospective Earnings (£)
|
| A | Offer of job in shortage occupation
Offer of job that passes Resident Labour Market Test
Intra Company Transfer
| 50
30
30
| No qualifications
NVQ3
Bachelors or Masters
PhD
| 0
5
10
15
| 17,000-19,999
20,000-21,999
22,000-23,999
24,000 +
| 5
10
15
20
|
| B | Maintenance requirement
| 10 |
| C | Competence in English[31]
| 10 |
TIER 4
Under Tier 4 students need to score 40 points, consisting of 30
points for a place on a course with an approved education provider
which is at level 3 or above on the National Vocational Qualifications
(NVQ) framework, and 10 points for maintenance (funds).
TIER 5
Under Tier 5, temporary workers need to score 40 points, consisting
of 30 points for a Certificate of Sponsorship from an overarching
sponsor body, and 10 points for maintenance. Those on the youth
mobility scheme must score 50 points, consisting of 30 points
for nationality, 10 for age (in the age range 18-31 years old)
and 10 for maintenance.
Sponsorship
37. All migrants except those in Tier 1 require a sponsor
in order to apply for a visa. Individuals or organisations wishing
to sponsor migrants must register with the UK Border Agency and
apply for a sponsor licence. A separate licence is needed for
each Tier in which the sponsor wishes to bring in migrants, and
licences are valid for four years. Approved sponsors are awarded
an 'A' or 'B' rating by the UK Border Agency. A 'B' rating is
transitional, meaning that the sponsor will have to improve their
performance, as specified in a tailored 'sponsorship action plan'
within a given time period. Those who do not comply with the plan
within three months are likely to lose their licence.
38. Sponsors take on a number of new compliance
responsibilities, including the duty to alert the UK Border Agency
if migrants do not comply with their immigration conditions—for
example if they do not turn up to work, or disappear. Licensed
employers are able to sponsor skilled migrants under Tier 2 under
one of three conditions:
- In shortage occupations identified
by the Migration Advisory Committee;
- Where jobs have passed the Resident Labour Market
Test;
- Intra company transfers, where an employee works
for a company overseas which transfers the migrant to work in
the UK for a temporary period.[32]
39. We note that, in the context of the current
economic recession, on 22 February 2009 the then Home Secretary
asked the Migration Advisory Committee to consider whether there
was an economic case for restricting Tier 2 (skilled workers)
only to occupations on the shortage occupation lists.
Administrative Review
40. If an application is refused, the applicant
has no right of appeal against refusal, except on human rights
or race discrimination grounds.[33]
Instead they can ask for a non-statutory, free administrative
review. Any request for administrative review must be made within
28 days of receipt of the refusal notice, and applicants may only
request one administrative review per application. The review
is carried out by an UK Border Agency entry clearance manager
who was not connected with the initial decision. This official
reassesses the whole application, considering whether points have
been correctly awarded, documents have been correctly assessed,
and verification checks have been properly carried out. The three
possible outcomes of administrative review are to overturn the
decision and issue entry clearance, to uphold the decision with
the same reasons for refusal, or to uphold the decision with revised
reasons for refusal.[34]
26 Home Office, Controlling our Borders: Making
Migration Work for Britain, Five Year Strategy for Asylum and
Immigration, Cm. 6472, February 2005, p.7. Back
27
Migration Advisory Committee, Skilled, Shortage, Sensible:
The recommended shortage occupation lists for the UK and Scotland,
September 2008, p.11 Back
28
Migration Advisory Committee, Skilled, Shortage, Sensible:
First review of the recommended shortage occupation lists for
the UK and Scotland: Spring 2009, April 2009, pp.126-132 Back
29
Migration Advisory Committee, Skilled, Shortage, Sensible:
The recommended shortage occupation lists for the UK and Scotland,
September 2008, p.12 Back
30
Prior to March 2009, 5 points were available for earnings in the
range of £16,000-£17,999 and 10 points for earnings
in the range of £18,000-£19,999. However, these were
removed by the then Home Secretary in order to tighten the points
requirement under Tier 1. Back
31
Applicants are required to speak English to a basic user standard.
Applicants will need to prove their competence by either: proving
that they have passed a test in English equivalent to the appropriate
level; come from a majority English-speaking country; or have
taken a degree in English. Back
32
UK Border Agency, Skilled workers under the Points Based System
(Tier 2), Statement of Intent, May 2008, p.7 Back
33
As set out in the Nationality, Immigration and Asylum Act 2002,
Sections 84 (1) (b) and (c) Back
34
UK Border Agency, Tier 1 (General) of the Points Based System
- Policy Guidance, March 2009, p.44 [Annex C] Back
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