We have repeatedly heard that the UK has experienced its biggest overhaul of the immigration system in half a century. This claim is false. The recent changes to our immigration system are more of a repackaging.

In 2010 we are at the conclusion of the five-year plan for immigration announced in 2005 by the then home secretary Charles Clarke. In a command paper, Controlling our borders: making migration work for Britain – five-year strategy for asylum and immigration, he declared that his top priority was to achieve public confidence in the immigration system and the acceptance of a points-based system (PBS) – a controversial concept. Five years on, where are we?

The PBS was heralded by the ousted Labour government as ‘a simple, transparent, objective, robust, Australian-type immigration system designed to attract those migrants the UK needs’. Has it done its job?

The last government certainly thought so, having introduced robust controls and penalties, while reducing the number of routes available for overseas nationals to enter the UK from over 80 categories into five tiers. There have certainly been many changes, but whether there has been an ‘overhaul’ of the system is ­questionable.

The changes have included:Unbeknown to many angry British voters, the PBS has certainly reduced the numbers of migrants, skilled and otherwise, qualified to enter the UK, and increased the number of applications being refused on ‘technical’ grounds. The PBS has also resulted in:

  • the removal of subjectivity from the immigration decision-making process;
  • a requirement for applicants to speak English to an advanced standard;
  • an enhanced requirement for an applicant to show he can maintain ­himself and any family in the UK;
  • the need for the applicant to ­produce strictly prescriptive ­documentation as evidence of having attained the required points; and
  • unaccountably, the removal of appeal rights.

  • a PBS;
  • application decisions for leave to enter and remain being made entirely on objective criteria and only ‘on the papers’;
  • the need for a sponsor for most applicants to enter the UK;
  • a more comprehensive analysis of shortage occupations;
  • a single application process;
  • new (but not necessarily improved) technology;
  • rigorous paper checks;
  • biometrics;
  • the formation of the UK Border Agency (UKBA);
  • robust powers to strengthen the UK’s border control; and
  • ‘overseas nationals’ being called ‘migrants’.

Australian systemComparing the UK’s PBS and the Australian system is not sensible or reasonable. Unlike the Australian PBS, the UK system encompasses (nearly) all the business routes within it, making it very different. The Australian employer/sponsor categories sit outside the PBS.

RobustnessThe PBS has indeed shown itself to be robust in some areas. There are arduous compliance duties for sponsors, with severe civil, criminal and financial penalties for non-compliance. But the system is not robust in filtering into the UK suitably skilled migrants.

Some migrants who are not fully skilled or well qualified (having the equivalent of NVQ level 3 for tier 2), or recent masters graduates with a good level of English and a reasonable income, can enter the UK as ‘skilled’ and ‘highly skilled’ respectively. Meanwhile, others who are indeed skilled, some very highly skilled (for example, a self-employed film producer with a Sundance film award who has not earned a sufficiently high salary to attract points), cannot enter the UK under these categories. Another observation is that the PBS has, through the development of certificates of sponsorship and confirmation of acceptance, established self-certification, a concept that was tried and tested and failed in the past. Surely self-certification does not fit within a so-called ‘robust’ system.

Simple and transparent The UKBA describes the PBS as simple and transparent. Indeed, former immigration minister Tony McNulty, when introducing the concept of the PBS, said he wanted a system so simple that a three-year old would understand it. It is scarcely imaginable that HM Revenue & Customs or the criminal justice system would promote systems so simplistic that they could be understood by a three-year old. UKBA staff have been known to announce to stakeholders that, because the system is so simple, sponsors do not need legal representation.

The last government was adamant in its quest to ensure that all decisions regarding PBS applicants are totally objective with no element of discretion allowed. This quest for equal treatment backfired and led to unfair decisions for applicants owing to the lack of subtlety under the PBS. Further, it resulted in a category under tier 1 for highly skilled migrants where no points can be awarded for skills and very few for work experience (except for experience obtained in the UK). To assess these two significant attributes that employers want in staff would require a subjective decision, and subjectivity is an unwelcome factor within the PBS.

Five tiersThe former government’s claim to have reduced 84 ways of entry into the UK to five tiers is misleading – again, the change merely constitutes a repackaging of the immigration system not an overhaul. The PBS only deals with employment, business and students. There is still a number of business categories outside the PBS, not to mention asylum, family and, indeed, human rights and European free movement. Finally, it should be noted that the five tiers within the PBS have subcategories – about 16 in general. There are in fact about 35 immigration categories.

The last government was aided in its quest for a reduction in the number of migrants coming to the UK by the recently created UKBA, responsible for controlling migration in the UK, enforcing immigration and customs regulations, and considering applications for permission to enter or stay in the UK and for citizenship and asylum. As well as showing an enthusiasm for border control, UKBA has revealed a passion for discouraging its stakeholder immigration applicants from instructing solicitors.

ConclusionThe new government is anxious to be seen to be reducing the number of migrants coming to the UK. Since human rights are governed by international law, the government has limited powers here. As highlighted by David Cameron’s adversaries, another area that the government has limited (if any) control over is European free movement. Each member state of the EU can control the number and type of non-European nationals who enter its country and enact domestic immigration laws to do so, as we do in the UK. But each member state, including the UK, cannot interfere with the movement of European nationals, despite Gordon Brown’s rhetoric about protecting ‘British jobs for British workers’. This only leaves the UK government control over non-human rights claimants and non-European nationals whose entrance to the UK is controlled by the PBS and our immigration laws and rules, and policy for family reunion.

The new PBS is not more effective in allowing employers to bring in the skilled migrants needed in the UK and, indeed, more easily allows for non-highly skilled migrants to enter the UK under tiers 1 and 2.

All parties in the 2010 general election had immigration at the forefront of their campaigning strategy. The new coalition government is likely to limit further economic migration to the UK. They would do well first to note the effects of the PBS’s already stringent limitations on migration and understand that further substantial limitations may adversely affect businesses in the UK and inhibit economic recovery.

The government’s time would be better spent adapting the rigid rubric of the PBS so as to sustain economic migration numbers, but select more astutely for skills that will buoy the economy.

Laura Devine, Laura Devine Solicitors, London. Sam Ray, legal assistant at Laura Devine, also contributed to this article.