UK Immigration

01 October 2006

Hilary Belchak, Kingsley Napley

Lies, Damn Lies, and Statistics

Although we know that migration to the UK has increased, nobody agrees by how much, how long the migrants stay or what proportion of the migration is legal. UK government statistics say 494,000 people came to the UK on 2004. The Organisation for Economic Cooperation and Development said in June 2006 that the number of legal migrants staying long term is less, more like 266,500.

It is widely accepted that the number of workers coming from the countries that joined the European Union in May 2004 has had an impact on the number of legal migrants in the UK. Between May 2004 and the end of last year, 345,000 workers came from these countries but in fact many did not stay for long. Bulgaria and Romania are set to join the EU in 2007. The UK authorities are reported to be considering whether to restrict access to the labour market for the acceding countries’ nationals and will make a decision later this year.

Of concern to the public has been the number of illegal migrants and asylum seekers and failure to remove those with no permission to stay. It is agreed that the numbers of asylum seekers have reduced considerably in the last few years but perhaps by less than the UK government had claimed. There are no official estimates of illegal migration and the figures could be anywhere between 310,000 and, as some allege, 870,000 illegal migrants in the UK. Migration statistics are collated by the Home Office, the government department with responsibility for crime and immigration in the UK. Their estimate is nearer 430,000. The Home Office’s lack of knowledge about the numbers of illegal migrants sparked off much public interest earlier in the year and contributed to the downfall of the then Home Secretary, Charles Clarke and his replacement by John Reid. A senior civil servant had reported to a House of Commons Home Affairs Committee that he had no idea how many illegal migrants there were in the United Kingdom. News broke of the Home Office’s failure to deport released prisoners from overseas and combined with an earlier scandal over corruption among caseworkers, Dr Reid was led to describe his department as “not fit for purpose” in May 2006.

Proposals for Change to the Rules on Entry to the UK

We started 2006 with a proposal in March put forward by Mr Clarke called ‘A Points- Based System: Making Migration Work for Britain’. He began optimistically with the premise that migration is vital for the UK economy but that current immigration rules are cumbersome and complex. He proposed the new points-based scheme to replace the current variety of ways to enter the UK. We have the very successful work permit scheme, which is responsible for the bulk of economic migration applications to the UK and which most practitioners have pleaded should be retained. In the last few years a category called the highly skilled migrant programme has become popular for those who have no employer to sponsor them. We also have many categories of entry that are much less used. All these will be replaced.

The key features of the points-based scheme will be:

1. A new five-tier framework ranging from tier one for highly skilled (or highly paid) individuals to tier five for such as youth mobility and temporary workers schemes. There will be no extra discretionary or concessionary categories (such as the concession that has for years enabled foreign lawyers to come to the UK – they will have to get points like everyone else).
2. A points basis and structured decision making for the new tiers. Applicants will need the appropriate number of points to obtain approval to enter the UK. Points will be scored for attributes that predict a migrant’s success in the labour market, for control factors – relating to whether someone is likely to comply with the conditions of their leave – or for both. Points will be awarded on an ‘objective and transparent’ basis. All applications, however, will be assessed by the consular officers in the British consulates where the applicants live instead of the present system where many decisions are made by caseworkers
3. Most applicants other than the most highly skilled (in tier one) will need to provide a certificate of sponsorship from an approved sponsor when making their application. Employers will need to be registered with the Home Office and satisfy criteria to show that they are eligible and suitable to sponsor migrants and they will be expected to accept their responsibilities to help with immigration control.
4. Financial securities in certain circumstances will be required of those who suggest they present a high risk of breaching the Immigration Rules. Bonds may be expected by the sponsors of those thought to be a high risk. Such sponsors will include colleges and employers.

Practitioners have expressed vociferous and ongoing concern about these proposals. We doubt there can be totally objective criteria in any system. We also fear the shift in decision making from the UK to British consulates outside the UK. All practitioners worldwide have endless horror stories of ‘rough justice’ and arbitrariness when their clients are making applications thousands of miles away from them. For UK representatives who have prided themselves in being able to establish channels of communication with the decision makers, we have increasingly found it difficult to speak to the entry clearance officers working at the British consulates. This has come about in a number of ways. More and more consulates are requiring applicants to complete online applications. This is good for the technically competent but reduces contact between the consulate and the applicant. Commercial companies are increasingly contracted to accept and forward entry clearance applications. The consular officers will in these countries not take phone calls about cases until they have made a decision. Several consulates have also started to use the services of outsourcing firm Abtran to field any enquiries likely to be made for information about the entry clearance processes. Nevertheless our policymakers are adamant that the consulates will be fair, the system will be transparent and straightforward and if it is properly drafted, so objective that there will be no chance of mistakes being made by the entry clearance officers.

Another new proposal will increase the responsibility of employers to ensure that they employ people legally in the UK.

A key part of the new proposals is the policy that those who benefit from migration, namely employers and educational institutions, should play a part in ensuring there is no abuse. Approved sponsors can issue a certificate of sponsorship, which will result in points for the applicant. It is therefore important that all sponsors are competent and act in good faith. Employers will need to register and prove that they meet set requirements before they are approved as sponsors. Among other things the employer must show a trading presence in the UK and must be registered with the appropriate authorities. An employer can be removed from the register if they do not take adequate responsibility for checking the credentials of migrants that they wish to bring to the UK and for failing to inform the Home Office, for example if a sponsored migrant fails to turn up for work on their first day or leaves the sponsor’s employment. If the sponsor is subject to a merger or takeover, the UK authorities must be informed. Sponsors will be rated A or B according to their track record and policies. Sponsors with a less good track record or who could do more to improve their procedures will be rated B. This will lead to the allocation of fewer points for the migrant.

In addition to this emphasis on rewarding good employers and penalising bad employers, new offences will be introduced in relation to the employment of illegal workers. Since section 8 of the Asylum and Immigration Act 1996 it has been a criminal offence for an employer to engage someone who does not have permission to work in the United Kingdom. The employer could establish a defence simply by showing that they had checked certain documents before employment began. This defence would fail only if the employer employed someone knowing that they did not have permission to work in the UK.

The Immigration Asylum and Nationality Act 2006 will change the law. There will be two different penalties. There will be a new criminal offence to replace the old section 8, which will narrow the criminal offence to one of knowingly employing a person who does not have permission to work but which will attract a much higher potential penalty including the possibility of imprisonment for up to two years. A broader civil penalty will be aimed at catching employers who engage someone without permission to work but employers can avoid the penalty by carrying out prescribed checks in a similar way to the provisions of section 8 of the 1996 Act. This new civil penalty will impose a fine per unlawful employee of £2,000. The idea is that the penalty would be similar to receiving a fixed penalty speeding fine. The employer would receive a notice requiring the payment of a penalty of up to £2,000 per employee alleged to be working in breach. It is up the employer then to show that it complied with any prescribed requirements or that the proposed fine is too high. The Secretary of State could then either cancel the penalty or reduce the fine but could alternatively, increase the fine so the employer takes a risk by objecting to the original notice.

When he took over as Home Secretary in May 2006, John Reid faced a number of public relations disasters connected to the inefficiencies of the Immigration and Nationality Directorate of the Home Office, its recordkeeping and its decision-making processes. He gave 25 of the Home Office’s ‘brightest and best’ six weeks to come up with proposals for reform of the bureaucracy and these proposals have just been published. The proposed overhaul will include a reshaping of the structure of the Immigration and Nationality Directorate to make it into a semi-independent agency. This will be similar to the Identity and Passport Agency, established as an executive agency of the Home Office on 1 April 2006. The Identity and Passport Agency provides passport services and in the future will be part of the national identity scheme producing ID cards for British and Irish nationals resident in the UK and also for foreign nationals resident in the UK who will be included by linking the scheme to biometric immigration documents. The introduction of ID cards is an extremely contentious issue in the UK. More relevant here, however, is the question of whether a semi-independent agency can meet the criteria that the Home Secretary will introduce to produce a 21st century organisation focusing on frontline services. The Home Office will be expected to establish “stronger accountability arrangements, set demanding targets for performance and delivery, and give (the new agencies’) chief executive and board greater operational freedom to improve services and innovate as performance improves.” Dr Reid hopes by 2010 to save £115 million in the costs of the Home Office itself as a result of this and related changes.

Dr Reid ruled out an amnesty for illegal immigrants and concentrated instead on proposals aimed at strengthening our power to refuse admission to the UK or to remove unwanted migrants. Uniforms for border control staff will be introduced to make them more visible. The budget for immigration enforcement will be doubled by 2010 and some of the functions will be privatised. Embarkation controls, dropped a few years ago, are to be reintroduced but probably through the use of technology.

Though Dr Reid has not dropped his predecessors’ plans for reform they have a much lower profile in these new proposals. The old see-saw between encouragement of migration and its control remains; but right now it is tipped more firmly towards control.

It is not possible to buy entry into Who's Who Legal

terms and conditionscontact us