The Government is introducing a points-based system to make the UK's business immigration process efficient, but lawyers fear the changes will cause chaos, writes Grania Langdon-Down


Julia Onslow-Cole, the leading business immigration practitioner, had a shock when she was headhunted by Pricewaterhouse Coopers Legal to lead its global immigration practice. Her 14-strong team moves with her.



Ms Onslow-Cole, who joined City firm CMS Cameron McKenna 17 years ago to set up its immigration practice, says: ‘You think you are doing well, but I had a real shock when I got PwC’s client list and saw about three of my old clients had sent out pitches for their business and we hadn’t even been invited to pitch. It was a horrible feeling. In the UK, you may be number one, but there is a load of pitching going on which you aren’t even party to because you don’t have that global presence. Moving to PwC puts you in with the big boys and you will be playing a different game.



‘I have really enjoyed working here but this is a very exciting job offer. PwC is a truly global player providing immigration services in 90 countries.’



The big issue for business immigration lawyers is the government’s introduction of the new Australian-style points-based system, which consolidates more than 80 existing work and study routes into five tiers.



The first for highly-skilled migrants comes in April next year, with the rest following in 2009: the second is for skilled workers, effectively replacing work permit; tier three is for low-skilled workers, tier four for students; and tier five for youth mobility and temporary workers. Applications have to be made at British missions overseas and, while those who are refused can ask for a review, there will be no formal right of appeal.



Hilary Belchak, a partner at City firm Kingsley Napley, leads its eight-strong business immigration practice. ‘The new system will mean we will have to find new ways of making sure people don’t submit wrong or fraudulent documents. It will be very difficult for companies making multiple applications to have as much control and, from a corporate point of view, the changes are going to be chaotic. The government says the new system will be efficient, simple and objective, but these things are unlikely to be achieved.’



The new system will also place much greater emphasis on compliance. Ms Onslow-Cole warns: ‘You are going to need really sophisticated data-tracking systems.’



Gazette immigration law columnist Laura Devine is principal of an eponymous firm in London, which she set up five years ago. The firm, a split-off from a joint venture with Eversheds, has 13 specialist lawyers and is in the process of setting up a New York office.



‘The UK has the best business immigration system in the world,’ she says. ‘But all that hits the press is illegal immigration, asylum seekers and economic migrants.’



However, she says: ‘I could bore for Scotland on the points-based system. The revised highly-skilled migrant programme (HSMP) is seen as a template for the new system. But since they have “simplified” it, the refusal rate has increased and is now 63%. Either these highly-skilled people are not very competent and can’t fill out this “simple” form or there is something dreadfully wrong with the system.’



Sophie Barrett-Brown, who heads the firm’s UK team, says the ‘gearing’ is wrong. ‘The system used to include factors such as achievements and experience, but it is now about qualifications and earnings,’ she explains. ‘It means you can be a 23-year-old graduate earning in the low £20,000s and be a highly-skilled migrant, but in theory Bill Gates wouldn’t qualify because he doesn’t have a degree.’



Karen Sturtivant, principal of London-based niche immigration practice Sturtivant & Co, says: ‘Superficially, it will make the system more objective and transparent, but I think it will be poorer. This has already been seen with the shocking descent of the HSMP into a crude, one-size fits-all. The applications could be decided by a robot.



‘There is a Machiavellian pedantry about the requirements coupled with Humpty Dumpty language – it means what the Home Office says it means, not what common sense says it means.’



Chris Randall, chairman of the 1,100-strong Immigration Law Practitioners Association and a solicitor with London firm Bates Wells & Braithwaite, says that in the immediate aftermath of the revised HSMP, the number of refusals at 1,200 outweighed the number of grants by 500 – ‘that is not a sign of a system that is encouraging the right people to apply. If this is their flagship, objective scheme which is so transparent you won’t need a lawyer, then those aren’t statistics you would want to flag up’.



Another concern among lawyers is that requiring applications to be made ‘offshore’ through visa facilitation services will insulate those making the decisions.



Ms Barrett-Brown says: ‘The level of decision-making at the British missions ranges from quite good to absolutely atrocious. Having them all decided at the Home Office was good for consistency and quality control, whereas the embassies often have a distinct perspective. Applications go quite smoothly in New York but good luck to you if you are applying in some developing countries.’



The changes could involve lawyers travelling more. However, Ms Sturtivant says: ‘Because there will be this layer between the applicant and the decision-maker, it is difficult to see how useful it will be to fly all over the world, only to get closer to the equivalent of a Post Office counter.’



London sole practitioner Gulay Mehmet, who chairs the Law Society’s immigration law committee, says: ‘We are concerned that, in all aspects of immigration, there is an erosion of due process and checks in the way that applications are processed and the way that civil servants conduct themselves. This will have an impact on the points system, particularly when it is being delivered from overseas with no rights of appeal, and with entry clearance officers who have a particular culture of working.’



Ms Mehmet says the new system will affect the way practitioners work. ‘The whole thrust of the government’s policies is about enforcement and that is reflected in the HSMP. The starting point is that the documents submitted in support of applications in certain countries are not authentic, so the government is entering into partnerships with private organisation to carry out checks. That is going to have a really big impact on the way that business immigration operates.’



The new system is also likely to receive serious competition from the EU when the European Commission publishes its proposals for high-skilled migration into the EU in September, says Elspeth Guild, an immigration partner at Kingsley Napley.



She adds: ‘Another key issue for the UK government on economic migration is how to react to the increasing harmonisation of law and practice among the 27 member states, which are adopting common immigration policies.



‘Already, practitioners are hearing from multinational companies that their international staff are increasingly reluctant to come to the UK rather than France or Germany. If they are based in those other European countries, they will acquire rights which apply across the EU – but not in the UK – while if they are based in the UK, they only acquire UK relevant rights.’



Immigration is a political hot potato. ‘The government is trying to influence public perception much more than it used to,’ says Ms Barrett-Brown. ‘It wants to be seen to be tough on immigration and to streamline the process, but the danger is it is creating a blunt, unsophisticated instrument. There is also a sense that it is trying to squeeze lawyers out.’



Ms Mehmet says it is no longer possible to separate business immigration from the general political climate on immigration. ‘The cosy situation that it was only lawyers doing asylum work and cutting-edge cases involving removals who had to battle with the state is no longer the case. The elements of discretion and flexibility that business people require are going to be more difficult to exercise and there are serious questions about how the new system will operate and the consequences in terms of consistent, fair and just decisions.’



While London may be the main pull for people wanting to come and work in the UK, Marian Dixon has proved that it is not necessary to be based in the capital. She moved from City firm Lovells in 2005 to Ollerenshaw, a small firm based in Leamington Spa, to create a new business immigration practice. ‘I took all of my clients with me, with Lovells’ consent, and continue to act for them and do Lovells’ own in-house work.



‘As I live here, it was a case of coming home after more than 20 years working in London. Provided the clients are getting the same level of service, it doesn’t have to be done from London. The Internet, email and widespread use of couriers has changed how the work is done.’



Graeme Kirk, senior partner of Gross & Co in Bury St Edmonds, agrees, though he does find it vital to have a small office in London. ‘If a client is only in the UK for a couple of days, they won’t want to come out here when there is a big choice of London firms which can do the work.’ However, moving to Suffolk in 1984 was ‘the best thing I ever did’.



Being a successful practitioner in this field requires excellent ‘people skills’, diplomacy and tenacity. ‘You need to be very tactically-minded,’ says Ms Barrett-Brown. ‘Also, while we may not be not in court litigating, we are advocating on a daily basis on people’s behalf. ’



Ms Onslow-Cole adds: ‘You have to be good at juggling. You also come across some really poignant cases and there is a sense of satisfaction when you resolve things.’



It is a practice area where women lawyers fill the legal directories. ‘Women do well in this area of work because, by and large, they are less confrontational than men,’ believes Ms Sturtivant.



The key attraction, however, is the contact with people of all nationalities and backgrounds. Ms Barrett-Brown says: ‘It is a window on the world.’



Grania Langdon-Down is a freelance journalist