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To what extent will recent and proposed changes to the immigration system assist in successful integration of new immigrants?
UK Immigration law has recently seen a metamorphic transition. The new Immigration Rules are now in full swing. It is inevitable that any system that is introduced for the first time will either be very beneficial in the successful integration of new immigrants or will have devastating consequences.
The introduction of the Points Based System (PBS) for new immigrants seeking to work, train or study in the UK replaces the approximate 80 routes of doing either of the above under the present regime. These Immigration categories have now been streamlined into one single immigration system.
Adopting the single system provides clarity in the law and secures a carefully controlled integration of new immigrants. The system is much more straightforward in application. New immigrants can easily ascertain whether they meet the necessary criteria for a particular visa, which will save them time and prevent wastage of costs.
The PBS is divided into 5 Tiers. Tier 1 (General) took effect from June 2008.. Tiers 2 & 5 have been in force since November 2008. Tier 3 has been temporarily suspended and Tier 4 aims to be incorporated by March 2009. Under each Tier, any prospective immigrant would need to score points in order to attain entry clearance. The points have been set by the Migration Advisory Committee. Instrumental to the PBS is the involvement of sponsorship. Another change is the requirement of the entry clearance and the knowledge of the English Language.
The objective of Tier 1 is aimed at Highly Skilled Workers (HSW) and the Post Study Work (PSW) schemes, which replaces the former Highly Skilled Migrant Programme, (HSMP) the International Graduates Scheme, (IGS) The Fresh Talent Working in Scotland Scheme and the rules for business-people and innovators, investors, writers, composers and artists.
This Tier has been formed in line with bringing in the, “brightest and the best”. This is good news for some workers, particularly those that do wish to enter on the PSW. The PSW allows a new worker to remain in the country for a period of 2 years and will benefit from good quality training. Employers were previously reluctant to invest in resource training of new recruits who were required to leave the country after 12 months.
The process under the old HSMP scheme and the new HSW scheme is very different. Points are given on a sliding scale against requirements such as a degree qualification. The new immigrant needs a score of 75 points or more in order to qualify on the scheme and additional 10 points for the knowledge of English. There is also requirement for those that apply outside the UK; that they must have a bank balance of £2,800 and those within the UK must have £800.
The purpose is to ensure that the new immigrant is able to support him/herself up until the first salary is received and not be dependant upon Government resources. This minimum financial requirement may appear to be a hindrance for those residing outside the UK.
Tier 1 was questioned where foreign Doctors are concerned in the BAPIO case. The House of Lords held that the Department of Health guidance defeated a legitimate expectation held by Doctors in training on the previous HSMP that they would not be prevented from undertaking work. Tier 1 states that a doctor will not be able to undertake employment as a doctor in training up until entry clearance is granted. This is therefore, another procedural obstacle for a UK Immigrant.
Tier 2 applies to skilled workers with a job offer and replaces the concept of work permits completely. A skilled foreign worker will obtain 50 points and this will depend upon factors such as the person already being in skilled work as well as having an earning capacity of £24,000 or having a recognised qualification.
One way for an immigrant to earn 50 points immediately will be if the UK employer in can show that they cannot fill the required skilled post with a British worker and that the job vacancy has been advertised in the UK. This leads onto the employer passing the Resident Labour Market Test, which refers to the job being in shortage occupation.
Tier 2 does not include overseas qualified nurses and midwifes, ground staff of overseas owned airlines, exchange teachers, and language assistants. The list includes a wide range of professionals in the cross section of society, which does not help with the integration of new immigrants with these qualifications.
In R v SSHD the Judge raised a concern with the new law regarding highly skilled migrants and those immigrants who have already obtained entry clearance and have not secured a job will constitute as racial discrimination. The Home Office has incorporated the judgement. The previous rules will apply to those UK immigrants who have been adversely affected by the change in law. This is good news for those immigrants that fall under this category.
Alongside Tier 2 is the requirement of the certificate of sponsorship which has to be issued to the prospective employer. Prior to this, the Company will have to firstly be registered with the UK Border Agency so that it can obtain a sponsorship license.
Skilled workers will be discouraged from coming to the UK and if an organisation is called into question, if faces losing its license and any immigrant working would be required to leave the country within a period of 28 or 60 days. The procedure of carrying out this process is set to cause serious delay to the recruitment of key immigrants and employers will risk losing access to a pool of talent on an international level.
Tier 4 only applies to students as overseas ‘adults’. The immigrant must pass a maintenance test and produce supporting documents such as educational qualifications. The long term plan for Autumn 2009 is the emergence of the an IT system to support the student visa route. Whether the overseas ‘adult’ option excludes a section of student is yet to be decided.
Tier 5 is currently in existence where temporarily workers wish to come to the UK for primarily non-economic reasons. UK Immigrant must be awarded 30 points and savings of at least £800. This again may be difficult for some workers who only essentially work on a ’temporary’ basis.
The actual criteria to meet has not considerably changed but what has reformed is the legal process. This will have a negative affect on those immigrants that will want to appeal against the decisions and the Asylum Immigration Tribunal(AIT). The Government has produced a consultation paper, which proposes to revise the scope for Judicial Review, which will have the prevent the applicant’s right to appeal to the High Court, following a decision of the AIT.
The law could deter new immigrants from applying and discriminates against highly skilled individuals who hold the qualifications but not the job to go with it or the financial standing . The law has already been ’tweaked’ in its initial stages that could open up the floodgates for UK immigrants to question other areas of the new law.
1. Clayton, G (2008) Immigration and Asylum Law (3rd Edition) Oxford University Press, Oxford
2.Jackson, D Warr, G, Cole, J.0., Middleton, J (2008) Immigration Law and Practice, (4th Edition) Tottel Publishing
Home Office Border & Immigration Agency, (2008) The Path to Citizenship: next steps in reforming the Immigration System
Home Office Border & Immigration Agency (2008) Students under the Points Tier System -(Tier 4)- Implementation Plan
Home Office UK Border Agency, Consultation: Immigration Appeals, Fair Decisions; Faster Justice, August 2008
Berry, M (2007) Are your employees eligible to work in the UK?-EEF, the manufacturers’ organisation – Broadway House – Tothill Street – London
http://www.oup.com/uk/orc/bin/9780199238668/ -updates on Clayton, G (2008) Immigration on Asylum Law (3rd Edition) Oxford University Press, Oxford
Border & Immigration Agency 2007
R (on the application of BAPIO Action Ltd & another) v SSHD and another  UKHL 27
R(on the application of HSMP Forum Ltd v SSHD  EWHC 004 (Admin)
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