The current climate for solicitors who practise non-legally aided immigration is arduous to say the least.

What factors make it so? First, we are faced with the worst recession for 80 years. Second, we have been governed by a Labour administration resolute in its determination to reduce the number of ‘overseas nationals’, or, to use the terminology introduced under the points-based system (PBS), ‘migrants’ coming to the UK.

Labour has been engaged in a quest to reduce the number of asylum seekers, bogus or otherwise, and to clamp down on legal as well as illegal immigration. This means a reduction in the number of migrants entering the UK for the purposes of business – supposedly to protect ‘British jobs for British workers’, contrary to the provisions of European free movement – and a reduction in the number for purposes of study, family reunions and visits. Surely this is only to appease the tabloid press and win votes?

Third, this government’s desire for a reduction in the number of migrants is being played out at the same time as the bedding down of the much heralded, robust Australian-type PBS.

What has the advent of the PBS meant for immigration lawyers and our clients? We know too well that the government and its UK Border Agency (UKBA) never grow tired of proclaiming that the PBS has resulted in the contraction of more than 80 immigration categories into five tiers. This retrenchment has inevitably reduced the pool of migrants, skilled and otherwise, qualified to enter the UK and the number of potential clients for solicitors to advise. The consequences of the introduction of the PBS do not stop there. The PBS has resulted in:All this results in less fair treatment for many applicants than would have been possible before the PBS. Many applicants are forced to tick and fit into boxes designed by policy-makers who were unable to ‘think outside the box’, so to speak, when picturing the circumstances of prospective applicants.

  • the erosion of any scintilla of subjectivity from the immigration decision-making process (the consequences of unquestionable objectivity have been inequitable, unreasonable and unfair decisions for applicants);
  • a requirement for applicants to speak English to an advanced standard;
  • the need for the applicant to produce totally prescriptive documentation as evidence of having attained the required points (I describe this requirement as the draconian documentation doctrine, as it is so prescriptive that the omission of a document will result in an outright refusal of the application with no right of appeal); and
  • inexplicably, the removal of appeal rights, which is draconian in itself.

UK Border AgencyWe have also seen the creation of the UKBA, with responsibility for securing UK borders and controlling migration. This agency has been enthusiastic in discouraging stakeholders – that is, our clients – from using solicitors to advise on and submit immigration applications. This is achieved by packaging the PBS as simple, objective and transparent, thereby making applications ‘simple’ for the prospective migrant as well as for the decision-maker to assess, with fewer chances for errors to occur. I am sure I am not alone in disputing that this is the case.

A large number of immigration applications are being rejected – even from migrants we supposedly welcome into the UK. This begs certain questions: are our potential skilled and highly skilled migrants incapable of understanding the ‘transparent system’ and completing the ‘simple’ application forms, even with the help of the online calculator? Are the trained entry clearance staff at the posts incapable of objectively and correctly assessing ‘simple applications’? Or is the PBS not quite as simple and transparent as it is dressed up to be?

Legal representationUKBA staff have been known to tell stakeholders that, because the system is so simple, sponsors do not need legal representation. Jeremy Oppenheim, regional director and policy lead for the PBS, said at a March conference that PBS applications will be so simple that lawyers will not be needed.

From the outset of the PBS, UKBA has shown a disregard for the involvement of representatives. At each and every consultation it has demonstrated an eagerness to sideline lawyers, preferring to have direct discourse with employers. It is arguably laudable that UKBA wants communication with and exposure to business, and for business to hear directly from UKBA. But surely such communication would be more effective in the presence of a lawyer who understands the PBS, both in the context of myriad immigration laws and policies, and in respect of the implications for employers under the PBS. If an error is made, employers face potential criminal and civil penalties, as well as corporate humiliation, if their licence is downgraded or confiscated.

Errors are dangerously easy to make, because the guidance for the ‘simple and transparent’ PBS is itself neither simple nor transparent and often needs a legally trained mind to interpret it.

This legally trained mind would also be alert to the conflict of interest at UKBA. It sells the concept of a sponsorship licence to the employer and charges a fee, while at the same time monitoring the employer’s activities and issuing financial penalties for breaches of the licence terms.

In its determination to disregard lawyers, UKBA is sending emails to clients, providing them with updates to the guidance and forms, and links to these on its website. Clients are also approached directly with offers of presentations and stakeholder meetings, with no reference to legal representation. Indeed, UKBA refused to have solicitors present at an arts and entertainments stakeholder meeting.

Even where the record shows that the employer, educational institute or migrant is legally represented, UKBA continues to attempt to inhibit the use of solicitors by communicating directly with the stakeholder by letter or email, and by returning documents direct rather than to the chosen legal representative.

Further evidence of UKBA disavowing the use of representatives came to light on 22 February, when the sponsorship management system no longer gave the option for sponsors to choose a line of communication with UKBA through a representative.

What is UKBA afraid of? One would think it would welcome customers who are legally represented and who therefore submit better quality applications. Non-legally represented customers are more likely to have their applications refused, and without a right of appeal the only option to pursue is a fresh application, incurring an additional fee. One could take the cynical view that the outcome of an applicant being non-legally represented satisfies two government aims: to reduce the number of migrants entering the UK and to increase revenue.

The simplicity which the government is seeking, while commendable in principle, has resulted in the delivery of a PBS which is rudimentary and unsophisticated, without many of the advantages of the previous immigration system.

General electionAll parties have immigration at the forefront of their general election campaign strategies. It is an easy vote winner to be viewed as the party that will get ‘the problem’ under control.

Party manifestos had yet to be published as this piece was written, but home secretary Alan Johnson has stated that if Labour is re-elected it will persist with its immigration simplification process and, because of the ‘success’ of the PBS for immigration, will continue to roll out a PBS for earned citizenship.

The Conservative immigrationpolicy includes: an annual limit on the number of non-EU economic migrants allowed to work here; a tightening of the student visa system, which it describes as ‘the biggest hole in our border’; a dedicated border police force; and promoting integration. Damian Green, shadow minister for immigration, has also said that all migrants wishing to extend their stay would have to return home and apply for entry clearance; and that all potential migrants would have to pay a deposit, which would be returned on their exit or used towards deportation costs.

Whichever party is elected, the Law Society must continue to provide expert advice in the field of immigration law and respond to consultations by government and its agencies. It is imperative that we, along with the Immigration Law Practitioners Association, prolong our battle with UKBA on its tendency to bypass instructed solicitors.

Laura Devine, Laura Devine Solicitors, London