Since 2008 the UK Border Agency rolled out the new points-based system regarding migrants coming into the UK requiring work authorisation. What used to be 80 different ways for economic migrants to enter the UK have been consolidated into only five tiers, all of which are points-based.

The change affects some 350,000 – 400,000 individuals, who come to work, train or study in the UK every year from the USA, Australia, Canada, India, China, Nigeria, South Africa and other countries outside Europe's internal market, known as the European Economic Area (EEA).  Employers and educational institutions in the UK have implemented new procedures inline with rules set out by the UK Border Agency.

The points-based system is expected to slow down the surge in net immigration to the UK, much of which in recent years has come from Eastern Europeans exercising their newly acquired free movement rights.  Commonwealth nationals with close UK ancestry and migrants coming to the UK through marriage and other family routes also fall outside the new points based system.

A combination of new rules and procedures, however, the devolving of decision making from the UK to British missions abroad and the abolition of any formal right of appeal, mean that non-EEA nationals are likely to face an increased level of rejections in future unless applications are prepared very thoroughly. The Government has also overhauled the rules for visitors coming to the UK for less than six months and, by 2011, will introduce biometric visas for all non-EEA nationals.

The new points-based system has five tiers for different types of migrant as follows:

• Tier 1: Highest skilled workers
• Tier 2: Skilled workers with a job offer
• Tier 3: Low skilled workers to fill temporary gaps in the UK labour force
• Tier 4: Students
• Tier 5:Youth mobility and temporary workers, e.g. those on "gap years" or professional sportspeople coming to compete at a sporting event.

Tiers 1 and 2 are broadly equivalent to the current Highly Skilled Migrant Programme and various Work Permit schemes, which have been abolished. Only those qualifying under tiers 1 or 2 have a route to settlement in the UK after a qualifying period normally of five years. Family members will be able to join. Tiers 3 – 5 are temporary categories where people will have to return home at the end of their stay in the UK.

In order to be granted entry clearance, or to extend or vary their leave to remain in the UK, migrants will need to achieve the number of points specified for the tier that is most appropriate for them. The criteria for awarding points and the "pass mark" will vary according to tier.

Every migrant (except those in tier 1) will need a "sponsor", typically their employer, to support their application. The Home Office will rate sponsors "A" or "B".  This in turn will give migrants more or fewer points when applying under the points based system and will affect the ability of sponsors to recruit non-EEA nationals.

While most new sponsors can expect to enter the system on a probationary "A" rating, failing sponsors can be downgraded to a "B" rating or lose their rating altogether.  Sponsors will have greater incentives to comply with their responsibilities.

These will include certification that the applicant has the skills and ability to do the particular job and is likely to comply with the conditions of entry. The duty of employers to perform prescribed checks on original documents before an employee starts work and to keep copies will be extended to cover follow up checks during the course of employment.

Employers will face a new on the spot penalty notice of GBP 2,000 per employee found working illegally if the prescribed checks have not been carried out. Employers will also have to report their migrant employees to the Home Office should they not appear for their first day of work or are absent from work for any prolonged period or if their contract is being terminated.

In mainstream tier 1 attributes for which points are awarded will be qualifications, previous earnings (weighted to take account of the country in which they were earned) and being aged under 32. 'Bonus' points will be available where previous earnings or qualifications have been gained in the UK. There will also be an English language requirement but no requirement for a job offer. Mainstream tier 1 will effectively replace the Highly Skilled Migrant Programme.

There will be two sub-tiers of tier 1 with different points criteria covering enterprise (persons intending to establish themselves in business, innovators or who have substantial funds to invest in the UK) and post-study (offering a route for skilled overseas students who have chosen to study at UK institutions).

The majority of migrants coming to the UK to work are likely to enter under tier 2. Applicants under tier 2 will need a job offer from an approved sponsor and satisfy an English language requirement. Apart from listed shortage occupations as advised by the new Migration Advisory Committee or intra-company transfers jobs will be subject to a resident labour market test, i.e. advertising. The employer will have to show that it is unable to recruit within the EEA. This however does not apply for jobs to be filled by company directors earning at least GBP 130,000.

Points awarded will then be used to assess whether the applicant has the appropriate combination of qualifications and experience for tier 2. The current two stage application process whereby employment qualifications are assessed in the UK and immigration issues assessed by British missions abroad will be abolished and replaced with a single stage abroad.

The starting point for tier 3 will be that any low skilled migrants should come from within the EEA. There will be a quota of low skilled migrants admitted from outside the EEA under tier 3, which will be "tightly managed". Family members will not beable to join. Nor will there be any right to switch into other tiers from tier 3.

Updated 7 August 2009

Andrew Dekany is a partner and head of the employment and business immigration group at Holman Fenwick & Willan:  andrew.dekany@hfw.co.uk
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