The Points Based System

Posted on Analysis May 2008 - by Tandoori Magazine
The Points Based System

Solicitor Priti Patel of Ash Norton Solicitors looks at the Government’s new Points Based System for Tandoori.

Immigration is once again the political flavour of the season. There is increasing pressure on the Government to control migration into the UK. The recent Economic Affairs Committee report on the Economic Impact of Immigration has fuelled the debate further on one of the biggest public policy issues in the UK.

There is a call to limit the number of Non- EEA nationals entering the UK. As a member of the European Union, UK cannot regulate the number or selection of nationals from   the EEA area entering the UK. It is understood that the large influx of eastern European workers in the UK,  will be able fill   many of the employment posts in various sectors, including the hotel and catering industries. However there are certain posts which   cannot be filled by eastern European nationals and an employer will have no choice but recruit from overseas if no resident worker is available.

The government has decided to introduce the new points based system as a way of controlling immigration to the UK. The Rt. Hon. Jacqui Smith M.P., Secretary of State for the Home Department said in February 2008 that “the introduction of our Australian-style points system will ensure that only those with skills the country needs can be able come to the UK.”

Current procedure for employing overseas staff

At the moment employers can apply for Work Permits to employ Non–EEA visa nationals. This will change with the introduction of Tier 2 of the Points based system which is expected to be introduced in October 2008. Work Permits will eventually be phased out

The Purpose of the Points based system

The Government intends to make the system easier to understand and use, but only time will tell if they have been able to achieve this. There are currently 80 routes available for entry to the United Kingdom be it for study purposes, to work or to train. The new points based system will cover all of these routes. There are five tiers with different conditions, entitlements and entry-clearance checks. The first of the new system, Tier 1, was introduced on 29th February 2008.

The five tier system framework is as follows

Tier 1: Highly skilled individuals to contribute to growth and productivity
Tier 2: Skilled workers with a job offer to fill gaps in UK labour force.
Tier 3: Limited numbers of low-skilled workers needed to fill temporary labour shortages.
Tier 4: Students.
Tier 5: Youth mobility and temporary workers: people allowed to work in the United Kingdom for a limited period of time to satisfy primarily non-economic objectives.

Points will be awarded according to objective and transparent criteria for all tiers .Those applying will need sufficient points in order to gain entry to the United Kingdom.

More responsibilities for employers under Tier 2

The category relevant to employers who recruit staff from overseas will be Tier 2. The Government is of the view that as employers and educational institutions benefit from overseas migrants they ought to take on the responsibilities associated with migration.
The British Hospitality Association is concerned by the high standard of English required by Tier 2 workers at entry. Many of the ethnic chefs simply do not have this level of English and employers claim that they do not need it to perform their jobs. There is a serious concern that the supply of ethnic chefs will dry up under the Points Based System.

Licensed Sponsorship and Compliance

Under the new system employers will be required to firstly register as a licensed sponsor before they sponsor a migrant from overseas .The employer can register on line to be become a sponsor by completing an application form. The BIA will carry out checks before deciding to grant the license. The BIA will then issue an A rate or B rate license to the employer. The latter is a temporary license where the sponsor has not fully complied and is allowed time to comply fully with the requirements. 

The Sponsors must comply with certain duties. They must also keep proper records of the migrants they have sponsored, including contact details and soon details on the migrant’s ID cards. Under the new system employers will share monitoring of their migrant staff with BIA. The sponsor will have access to a Central Sponsor Management System due to be launched in October 2008 .This will enable them to report to the Border and Immigration Agency and manage their own system.

After October 2008 the sponsor will be able to apply to the BIA for Certificates of Sponsorship (“COS”) to employ Non EEA staff.  The migrant will be required to qualify the points before a COS is issued.

The migrant will be required to apply for a visa to enter the United Kingdom. It is important to note that if the migrant is refused there will be no right of appeal if the visa is refused except by way of an administrative review. Critics of the new scheme point out that when the migrant makes an application for visas the entry clearance Officers at the diplomatic posts who make the decisions have a poor record of decision making as many employees have made successful appeals against incorrect decisions .It will be interesting to see how the system is going to work in practice.

The implementation of tier 2 is imminent and the message to all employers is to ensure that you have proper procedures in place in your place of business including your record keeping, recruitment process employment and tax obligations. Ensure that you carry out the necessary checks when employing non EEA nationals. These verification checks are a must in order to avoid heavy fines. Any records for non compliance may affect your license.

If you require any further information please contact Ms Priti Patel at Ash Norton Solicitors by email priti@ashnorton – or telephone 02089913330 /1

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