Matthew Davies of Fox Williams LLP considers the new landscape employers and employees will face as the Points Based System for
Following a carefully managed media campaign heralding an “Australian style” Points Based System (“PBS”) for
Tier 1 is the first part of the new system to go “live”, beginning on 29 February 2008. Broadly, Tier 1 covers similar ground to the existing Highly Skilled Migrant Programme (“HSMP”), which was introduced in 2002 to provide stand-alone immigration permission enabling individuals with high-level skills, qualifications and experience to immigrate to the
For in-country applicants, that is those already with immigration status in the
For out of country applicants, the position is different. Only applicants currently residing in
Tier 2 will replace the current work permit system. It is primarily designed to enable
Initially intended for low-skilled workers filling temporary labour shortages, for example in agriculture and hospitality, Tier 3 has effectively been mothballed. The Government thinking is that the ready supply of cheap labour following the accession of the “new” European countries in 2004 has removed the need for employers to look further afield. This is not universally accepted – for example, the Immigration Advisory Service has argued that a need for “cultural sensitivity” should be considered in some sectors – citing the example of Bangladeshi-owned restaurants and their perceived need to employ staff with a particular ethnic and cultural background.
Under the new arrangements, students will have to score a requisite number of points to qualify to come to the
This Tier is aimed at “youth mobility” and temporary workers, and those admitted to the
The concept of sponsorship is a key plank of the new system. All applicants in Tiers 2-5 will need a certificate of sponsorship issued by a licensed sponsor – a
Although the sponsorship register is already open, there have been few applications to date and, until recently, no sponsors were actually licensed. This is partly because the work permit scheme is still in place and Tier 2 is yet to be implemented. It also reflects a degree of employer concern about the level of information which a sponsor must commit to Government via an on-line process, followed by a “visit” by Home Office officials. The Government is refining the sponsorship application process, and many employers are adopting a “wait and see” approach before rushing to register.
Although relatively little of the new PBS has been implemented, problems are already occurring. There is concern that, as the system is rolled out, new issues will emerge. A current issue is the restriction on “switching” into Tier 1 from other categories. For example, those holding working holidaymaker status were previously able, subject to meeting the criteria, to “switch” in-country into the old Highly Skilled Migrant Programme. Many working holidaymakers and their employers were shocked to discover that it was no longer possible to “switch” in-country into Tier 1 after 29 February. There is also uncertainty about the dates at which certain features of the existing system will be withdrawn. The Home Office has announced its intention to “delete” some key provisions, including the International Graduates Scheme (which will be replaced by Tier 1 Post-Study – see above). Some transitional arrangements have been put in place to alleviate the difficulties – but they will only be available for a limited time.
The Government has irrevocably committed to wholesale change of the business immigration system; points, tiers and sponsorship are on their way. Changes are at an early stage, and it will be several months at least before the new system is substantially implemented. Most employers are adopting a cautious, wait-and-see approach to sponsorship registration while the system is developed and refined. Transitional provisions are offering some relief to those caught out by the changes, but persistent difficulties are emerging and there are indications that more problems lie ahead as implementation gathers pace.
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