Out-Law Guide 3 min. read

Immigration: the points-based system

The UK 'points-based' immigration system was introduced in 2008 to replace the existing work permit system.

The points-based system (PBS) was intended to:

  • streamline and simplify the existing immigration system;
  • ensure that decision-making became more transparent and objective; and
  • strengthen compliance and enforcement measures by delegating responsibility to employers and education providers.

How the system works

Under the PBS, migrants from outside the European Economic Area (EEA) and Switzerland must be able to demonstrate that they possess certain attributes before they can get permission to enter or remain in the UK.

Points are awarded for various attributes which include, but are not limited to,  the role being at the relevant skill level, qualifications, prospective earnings and English language ability. Migrants need to be able to provide evidence of each attribute.

The applicable attributes, and the number of points required to qualify, depend on the tier under which the individual is making an application.

Five tier scheme

The PBS system consists of five 'tiers'. These are:

Tier 1 - this tier is for highly skilled workers, including:

  • investors (investment of at least £2m in the UK is required, with very complex rules around the source of the funds);
  • entrepreneurs;
  • graduate entrepreneurs; and

people of 'exceptional talent' who are internationally recognised as either a leader or an emerging leader in their field  (in either science, humanities, engineering, medicine, digital technology or the arts) and who are endorsed by a relevant body (Tier 2 – this tier is for skilled workers with a job offer outside the EEA and Switzerland and includes the following categories:

  • general – this category is for foreign nationals who have a skilled job offer to fill a gap in the workforce that cannot be filled by someone in the UK. This route can lead to settlement;
  • intra-company transfers (ICT) – this category is for migrants who are transferring to a UK employer from a related employer overseas to perform a specific role. This route cannot lead to settlement. There are two sub categories:
    • Long Term Staff- unless the individual will earn over £73,900 they will need to have been employed for 12 months by the related employer overseas.
    • Graduate Trainee - for transfers into graduate trainee programmes for specialist roles. The individual will need to be a recent graduate with at least 3 months’ experience with your employer overseas.
  • religious ministers and sports people.

Tier 3 – this tier is suspended for the foreseeable future. It was intended to apply to low-skilled workers filling special temporary labour shortages, such as seasonal agricultural workers.

Tier 4 – this tier applies to students.

Tier 5 - this tier is for youth mobility and temporary workers satisfying primarily non-economic objectives, such as musicians coming to play in a concert and voluntary workers. It also covers people who come to the UK under a contract to do work that is covered by an international agreement, for example the General Agreement on Trade in Services (GATS).

Role of the sponsor

Migrants under all tiers except Tier 1 must be sponsored by either a UK employer or education provider before they can enter the UK to work or study. In order to sponsor migrants employers or education providers will first need a sponsor licence.

To obtain a sponsor licence, employers and education providers must apply to UK Visa and Immigration (UKVI) by submitting an online form and providing supporting evidence.

In order to be awarded a sponsor licence, organisations must:

  • satisfy UKVI that they are genuine employers, and are able to comply with employment and immigration law good practice;
  • agree to take on a number of 'sponsorship duties' including reporting and record-keeping requirements;
  • identify key personnel who will have responsibility for the sponsorship duties and for managing the sponsor's relationship with UKVI.

Once a sponsor licence has been obtained, the sponsor can generate 'certificates of sponsorship' in relation to each migrant that it sponsors to enter or remain in the UK.

'Cap' on Tier 2 migrants

There is an annual limit of 20,700 imposed on the number of certificates of sponsorship that can be generated under the Tier 2 (General) category where the migrant is  based outside the UK and their proposed salary is under £159,600. These are known as 'restricted' certificates of sponsorship.

Applications for restricted certificates of sponsorship are considered by a panel on a case by case basis each month.

The limit does not apply to:

  • migrants entering the UK through an intra-company transfer;
  • migrants seeking to enter the UK under the Tier 2 (General) category with a prospective salary of over £159,600;
  • migrants already in the UK who are seeking to switch to the Tier 2 (General) category from another category.

Outside the points-based system

A number of other work-based immigration categories are currently open to people who want to work in the UK. These include:

  • sole representatives of overseas firms;
  • representatives of overseas newspapers, news agencies and broadcasting organisations;
  • people working as domestic workers in a private household.

These categories are under review and may change in the future.

Employer's liability

Employing a person who does not have the right to work in the UK can give rise to fines of up to £20,000 per illegal employee..

However, employers will not be liable where they have obtained a statutory excuse by holding records which demonstrate that they have carried out the necessary checks in relation to all employees in line with the right to work requirements.

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