The UK will be introducing a points-based immigration system from the 1 January 2021, when free movement will end. This follows the UK exiting from the European Union in January 2020. But we wander, how accessible this PBS will be to its user?
Of course, the UK already had a points-based system (PBS), which was introduced in 2008, which introduced five tiers that replaced schemes such as work permits. PBS required applicants seeking entry clearance into the UK, to achieve a certain set of requirements for which they scored points. Visas were then granted only on the basis you achieved the required number of points.
The PBS was ill thought out and notoriously complex. Since 2008, Judges sitting in nearly every hierarchy of Court in the UK that have to deal with immigration law of the country, have lamented on the complexity of the system. Judge Easterman of the First-tier Tribunal in an unofficial speech said that “immigration law is a total nightmare. I don’t suppose the judges know any more about it than the appellants who come before them”. The Court of Appeal in Pokhriyal v Secretary of State for the Home Department  EWCA Civ 1568, stated the “provisions have now achieved a degree of complexity which even the Byzantine emperors would have envied”. The Supreme Court, in Robinson v Secretary of State for the Home Department  UKSC 11 observed “As will be apparent from this judgment, the structure of both primary and secondary legislation in this field has reached such a degree of complexity that there is an urgent need to make the law and procedure clear and comprehensible.”
Accessibility to the law is a fundamental feature to the rule of law itself. The late, Tom Bingham, in his the Rule of Law, gives three reasons why accessibility to the law is a fundamental feature of the rule of Law. The third reason he gives, relies on Lord Mansfield, regarded as the father of English commercial law, who 250 years ago said that in all mercantile transactions the great object should be certainty.
If law is unduly complex and unaccessible then what certainty is there for those from abroad, who wish to enter the UK, to work, to start businesses and to contribute to UK life.
In UK’s points- based immigration system policy statement, updated on the 30 September 2020, which was originally published in February 2020 starts by stating
- that from the 1 January 2021, there will be an end to free movement of workers within the EU.
- EU and non-EU citizens will be treated equally.
- Overall levels of migration will be reduced,
- top priority will be given to those with the highest skills and greatest talents and
- free movement will be replaced by the UK’s points-based system. Initiatives are also being brought for
The PBS Rules will make changes to skilled workers route and also introduces or changes routes that include to:
- Global talent route where the current route will be opened to EU citizens on the same basis as non-EU citizens. This means that the most highly skilled, who can achieve the required level of points, will be able to enter the UK without a job offer if they are endorsed by a recognised UK body approved by the Home Office. A recognised UK body approved by the Home Office may include e.g., Royal society for science and medicine, Tech nation for digital technology, arts council England for arts and culture
- Graduate route for international students who have completed a degree in the UK from summer 2021. This is an unsponsored route and will enable international students to remain in the UK for 2 years and PHD students can remain for 3years after study to live and work in the UK.
- Intra company transfer (ICT). ICT route allows multinational organisations to facilitate temporary moves into the UK for key business personnel through their subsidiary branches, subject to ICT sponsorship requirements being met.
- Other Routes made up of Start-up and Innovator, Health and Care visa, Creative Route, Sporting Routes, Seasonal Workers Pilot, Youth Mobility Scheme.
Of note is the The health and Care visa, which is part of the skilled work route. It is meant to ensure that individuals working in eligible health occupations, with a job offer from the NHS, social care sector or organisations that provide services to the NHS, are able to come to the UK.
Many talented people will wish to enter the UK and spend many years of their life wishing to contribute to UK society, creating employment, starting businesses and no doubt, want to lead fulfilling lives whilst in the UK. The starting point must be a set of Rules that make sense and provide certainty to those who give up a life, to begin a new one in the UK. They do not want to enter a “Wild West” where the law is arbitrary, depending on how the Home Office feel on a particular day.
There is some hope though in that the Law Commission started a consultation in 2017, looking to redraft the Rules. The Law Commission recognised the complexity of the Rules and the need for certainty, when it said: Hundreds of thousands of decisions are made annually under the Immigration Rules. Decisions which can be life changing for those seeking entry or leave to remain in the UK and their families.
But the Rules are widely criticised for being long, complex, and difficult to use. On 1 May 2017, the Rules totalled 1096 pages in length and their drafting is poor. Many provisions are duplicated, cross references are often incomplete, and some parts are incomprehensible.
Our project will not involve any substantive policy changes or any new legislation. It will instead aim [to] redraft the Rules to make them simpler and more accessible to the user.”
Let’s hope in the near future, immigration law becomes accessible to those who will give up so much, to make new lives for themselves and contribute to a country that claims to welcome their talents.
Rajesh Rai, Barrister