Selected admission:

Making migration work for Britain

December 2005

Question 1: Do you agree that the benefits of migration outweigh its costs?  YES

Question 2: Can a managed migration system be used to deliver the UK the workers it needs?  YES

Question 3: Is the current system too complex and bureaucratic? YES

Question 4: Should the users of the system or the taxpayer or both bear the costs of the migration system?  BOTH

Additional comments

Law Centre (NI) is a voluntary sector organisation which provides specialist legal services to advice organisations and disadvantaged individuals.  Four specialist lawyers (one part time) carry out our immigration and asylum work and we represent at a substantial number of all appeals in Northern Ireland.  We are the main advisers on immigration law in Northern Ireland. We generally do not represent at initial stages of work permit or student applications, but we operate an advice line service five days a week.  Through our advice line we regularly answer queries in relation to students and issues affecting migrant workers.  In the last twelve months, there has been a very significant increase in requests for assistance from migrant workers. Our response has been informed by our knowledge and experience.  Our response to the statistics required at the end of this questionnaire reflect not only the actual applications we have made during the last year, but also take account of the applications made with our assistance through the advice line.

The consultation document demonstrates the potential benefits which migration does and could continue to have for the UK.  In these circumstances, a managed migration system should be able to ensure that those benefits are realised, whilst also ensuring that migrant workers rights are recognised and protected. If this balance is not achieved then further abuse of the system is inevitable - regardless of how 'robust' the system is.  In particular, if the migrant's rights are not recognised and protected they have no incentive to use the system and would seek alternative irregular ways of entering the UK - leaving them vulnerable and open to exploitation from unscrupulous employers and, or illegal trafficking organisations.

The present proposals do not achieve this balance, particularly for those migrants who would be entering the UK under tiers 3-5. In addition to the comments below detailing specific concerns with the proposals for these migrants, the overriding concern is in respect of the proposed withdrawal of numerous appeal rights. Any system which purports to be transparent ought to incorporate an independent review system and ideally by way of an appeal.

At present we have significant concerns about the quality of decisions and welcome any attempt to improve this, but nevertheless given the significance of the decisions and the potentially devastating effect on applicants, we believe an independent appeal procedure is an essential element of a managed migration system.

It is understood that those migrants refused visas to come to the UK, for example as fiancé(e)s, students or work permit holders, will no longer have a right of appeal if they are refused entry clearance.  From our advice line experience, we are aware that migrants from a number of countries, who represent a significant proportion of the migrants seeking to come to the UK, have no or little confidence in decisions presently made by entry clearance officers (see also the most recent annual report by Fiona Lindsey, the Independent Monitor).

Moreover, migrants who have existing leave to remain in the UK - students, family members or work permit holders, but are refused an extension of leave, at present have a right of appeal against that refusal and can remain in the UK while that appeal is being heard.  However, the proposals will now prevent them from exercising appeal rights in country and they will be compelled to leave the country immediately.  It should be noted that we are aware that appeals against a decision to refuse an extension of leave have a reasonably high success rate (33 - 40%), whilst those appealing from outside the UK generally have a much lower success rate.   Not only do these figures clearly demonstrate the flaws within the existing decision making process, but they also highlight how important it is an appellant's representative can take instructions directly from the appellant and that they are available to give evidence at an oral hearing.

Neither employers nor the public will have confidence in a system which assumes that all decisions of officials are correct and removes the right to challenge those officials before an independent tribunal.  For a system to have any integrity the government needs to retain rights of appeal especially when attempting to improve a system which is universally acknowledged as being flawed.

The proposals will also have the effect of criminalising large numbers of migrants who are presently lawfully in the UK, in that if having been served with a refusal of an extension and do not leave immediately they are committing a criminal offence and may be arrested by a police officer or immigration officer.  The effect of this and the curtailment of appeal rights is likely to leave migrants believing that they have no choice but to go underground – to the detriment of all interested parties.

If, despite these objections, the system as presently proposed is to be introduced it would be appropriate to re-introduce a 'minded to refuse' decision within the system's structure.  This would not only give the migrant an opportunity to identify any obvious errors or mistakes, whilst being allowed to remain in the UK, but would also give them the opportunity to 'sort out their affairs' and to leave the UK whilst still lawfully in the UK.

Another effect of the present proposals would be to make it more expensive for employers to recruit from overseas and less attractive for migrant workers and students to come to the UK.  If the cost is to be met by the employer or the migrant it is likely to be prohibitive.  Although it is not unreasonable to expect a migrant to cover some of the costs – they should be shared between the taxpayer and the migrant or employer – in recognition of the potential benefits of migration.

Any fee paid by the applicant should reflect his or her economic circumstances.

It is also unrealistic to expect unskilled and low skilled shortage employment areas to remain occupied or to be filled by migrants from the expanded EEA ('A8 nationals').  In particular, as they become established within the UK it is likely that they will seek to obtain alternative employment and as such there will continue to be shortages in the low or unskilled skilled areas.  Equally, as the A8 countries inevitably become more economically competitive, there will then be opportunity for better paid employment within those countries. In particular health care, food processing, catering and hospitality sectors.  In these circumstances, there will still be a need for low skilled migration schemes for non-EEA nationals.

Question 5: Do you think we should introduce these changes in a phased manner?  YES

If so, which bits do you think should be implemented first?

While this depends on the nature of the finalised changes, it is imperative that important work is undertaken in respect of the current system both before and during the period the new proposals are implemented 

We welcome that the stated intention is for the system to be made more transparent and objective, however, as has already been noted, migrants and employers have serious concerns about the quality of decisions and will need to see the system in operation before being confident that the tests set out in the consultation document are satisfied.  In particular, they will need to be confident that the system is transparent and that the objective criteria form the basis for decisions rather than the present arbitrary and prejudice based approach which is perceived to underpin the present decision making process.  As such, although as has already been noted there is a principled objection to the curtailment of appeal rights, if those proposals are to be introduced then it should be dependent on improved, tried and tested decision-making based on objective and fair criteria being in place.

Further work is also needed to ensure there are sufficient safeguards within each of the new tiers to prevent the unlawful exploitation of migrant workers in the workplace. In particular, changes to employment law are required and some welcome elements of this are being put into place (Gangmasters Bill, new proposed powers of entry and inspection of employment businesses and agencies - in Northern Ireland). Powers and resources for the relevant bodies (Equality Commission, DEL, HSENI, LRA) are still needed to tackle specific issues that particularly impact on migrant workers (e.g. retention of documents by employers, excessive deductions from wages for 'services', contracts in other languages, etc). 

The introduction of the Skills Advisory Board could also be phased, for example, by way of a pilot project on a regional basis – so as to ensure that it effectively fulfils the proposed objectives and does not become another layer of bureaucracy, which hinders a migrant’s ability to access the UK labour market.

Question 6: Could the proposals to develop a new points-based system affect some groups of migrants more than others?  YES

If yes, which groups and why?

The proposed system effectively introduces a sliding scale of civil rights between each tier. Those on tier 1 will have close to full civil rights (access to labour market, to be joined by family members and the right to residency) with tier 2 having fewer rights, whilst those on tier 3 – 5 will have little to no rights and entitlements. These restrictions are likely to have a devastating impact on migrants - particularly migrant workers, significantly increasing the likelihood of them slipping into destitution and/or the irregular economy.  This is wholly inappropriate as many migrants are already marginalised and vulnerable to being abused or exploited by unscrupulous employers.

Moreover, there does not appear to be any evidential basis upon which the restriction of civil rights to those migrants coming under tiers 3- 5 can be justified.

Another particular group likely be adversely effected by the proposals are migrants already here.  The restrictions already in place and the introduction of further steps to prevent switching between categories are in the main of no benefit to either the UK’s economic interests or the interests of migrant workers.  Enabling those lawfully already present in the UK to access alternative ways of remaining appears to be a more economically viable option for all concerned.  For example, in the care sector in whose interest is it that a migrant worker who has established an effective working relationship with both employers and clients should be required to return to his or her country of origin if he or she wishes to continue the employment?  Not only could such a requirement have an adverse effect on his or her employment rights, but for both the employer and the migrant it is wholly impractical.

It is also likely that there could be a detrimental impact on grounds of gender, disability, age, race or nationality.

Question 7: Do you agree that the objectives of the managed migration system should be focused primarily on economic benefit to the UK?  NO

Additional comments

The objectives of a managed migration system should seek to balance the interests of the UK with the rights of migrants.  As such it is wholly inappropriate for a system, such as the present proposals, to focus on preventing abuse, for example by seeking to deter migrants – in the context of restrictions on their civil rights and punitive measures, without also recognising the need for incentives for migrants to come to the UK, over and above merely the ‘pull’ of the UK. 

It is highly likely that as migrants become aware of the restrictive aspects of the proposed system they will seek to study or work elsewhere – for example the US, Canada and other European countries, which would be to the detriment of the UK economic interests.

Question 8: If managed migration were intended to meet non-economic objectives what would they be, and how would you measure them?

The UK is a signatory to a number of European and International conventions including the European Social Charter and a number of UN Human Rights Conventions.  These Conventions or treaties have means by which the signatories are encouraged to comply with their obligations.  This is a potential way of measuring compliance with international norms.

There are, however, a number of other conventions the UK has yet to ratify that include recognised best practice, for example the UN International Convention on the Protection of All Migrant Workers and Members of their Families.  The UK should ratify this and other treaties and use these treaties reporting mechanisms to measure non economic objectives. 

As referred to above we consider it an objective itself that the minority ethnic communities within the UK have respect for and integrity in the principles and objectives of a managed migration system, as well as confidence in the practical implementation of such proposals.  Achieving this objective could be measured by liaising closely with minority ethnic community representatives.

Question 9: How would you rank the proposed tests for the system in order of priority?  Please number them below from 1 to 8.

Question 10: What can we do to make the system robust against abuse, whilst still benefiting from migrants working and studying in the UK?

Unfortunately, any system of immigration control will be subject to abuse.  The challenge is to develop a system that encourages migrants to seek to enter the UK legitimately, in order to ensure the UK maximises the benefits gained by migrants.  For example, migrants who wish to come to the UK to study, to join or visit a family member, or to work, have the opportunity to come lawfully.  If the system is too costly, unmanageable or arbitrary then it is likely that migrants will attempt to enter the UK in an unauthorised manner.

The proposals identify numerous measures that seek to deter or punish migrants, especially those falling within tiers 3 - 5 (for example, lack of access to basic civil rights or the Bond scheme and the withdrawal of appeal rights).  As currently drafted, there is limited incentive to encourage participation within the system.  Measures that could be introduced by way of incentives could include an entitlement to family reunion – for example, where the migrant has demonstrated a willingness to improve their skills (training or English) or by remaining in lawful employment (not necessarily with the same employer).  In this context, the consultation document recognises that any system should be consistent with the Government’s Skills Strategy and a system that encourages migrants to improve their skills is consistent with such a strategy and likely to enhance the value of the migrant to the UK.  Given an increasingly competitive market for migrants, without such incentives there is a real risk that migrants will simply choose to go elsewhere or access the irregular economy.

It follows that the proposals for additional enforcement powers and practices to prevent abuse for applicants are inappropriate. The current levels of powers are vastly disproportionate to the perceived problem. The powers and practices of immigration officers in Northern Ireland are already draconian, for example the continued detention in prison without charge of undocumented migrant workers. The number of undocumented workers here is small and the priorities given to immigration officials is to be contrasted (in the sense of priorities) with enforcement against known rogue employment agents (see below).

In addition, the new proposals raise a number of serious concerns.  In particular, they could have a potentially devastating impact and cause social problems, racial profiling and human rights abuses.  For example, how will the public service know who from to ask for cards? It is not possible to tell if someone is a British or Irish citizen by looking at them. It is likely that persons will be subject to greater scrutiny on the basis of unlawful racial profiling (i.e. different accent or skin colour).

It also creates a two tier system of human rights where foreign nationals are obliged to carry residence permits to access public services but local persons not.  If not, then effectively the situation will arise when all persons in Great Britain will have to carry an ID card to access a service.  It is difficult to see how this can be implemented in Northern Ireland, given the legal context of the Good Friday Agreement in which Irish nationals in Northern Ireland could clearly not be made to carry British ID cards or foreign residence permits.

In addition, for those persons who do not have a card and have no prospect of getting one, the proposal would effectively create a permanently detached 'underclass' of migrants.  These migrants will be highly vulnerable to exploitation and will have no rights and entitlements. It is likely that these provisions would effectively create a climate of fear of accessing essential services, including urgent medical care, leading to cases of destitution and at worst deaths. This is a real risk as demonstrated by our experience on the advice line of the Workers Registration Scheme.  The WRS has effectively created an 'underclass' of migrants, who fear repercussions if they were to attempt to access any services, including health care. 

As such any system that will re-produce that climate is disproportionate, unworkable and potentially dangerous.

Tiers 1 and 2

Question 11: Which of the following attributes do you think are most important for Tiers 1 and 2?

Question 12: Would the proposed outline design for Tiers 1 and 2 exclude any migrants who enter the UK under current Work Permit and Highly Skilled migrant Programme arrangements?  Should these people be allowed to work under the new system?  If yes, please state why you think they should be allowed to work under the new system and how this related to the objectives set out in Section 5.  YES

It is not clear under the present proposals whether migrants who presently have a work permit tied to employment within health care would fall within tier 2.  There are also reservations in respect of the impact on the catering industry.  If these posts are to come within tiers 3 or 5, it could have serious repercussions for the respective industries.  In particular, to require these migrants to return to their country of origin to renew a visa is impractical, costly, prohibitive and counter productive.  At a very basic level the migrants have adapted to the routine of the particular residential home and the needs of those in their care – which gives them invaluable experience.  Moreover, continuity of staff who are settled, happy and content is a key factor that assists businesses to develop and grow.  Whereas uncertainty as to their future undermines the confidence of staff and is likely to undermine the growth of the business.

It is also not consistent with the government’s Skills Strategy.

Question 13: Do you agree with the proposal for the Skills Advisory Body set out in section 6?  YES

Additional comments

There is no objection in principle to a Skills Advisory Board as envisaged within the consultation document.  However, it is imperative that there is a significant regional element to the Board.  Although there is a relatively small migrant population in Northern Ireland, there has been a significant increase in recent years and there are particular issues that are more readily identifiable at a local level. 

Moreover, in the past proposed changes to practice and procedure in immigration law have overlooked the concerns and needs of Northern Ireland

Question 14: Should employers be able to access migrant labour for non-shortage occupations (ie those not identified by the Skills Advisory Body) and what would be the most effective mechanism for doing so?  YES

Additional comments

The most practical suggestions are the resident labour market test and/or awarding points for 'attributes’.  The alternative suggestion for ‘higher fees’ raises a number of concerns.  In particular there is a real risk that the less scrupulous employer will require the migrant to cover the additional costs.  This is inconsistent with the purpose of the proposal.

Tier 3

Question 15: Which bodies or organisations should be involved in identifying labour shortages involving low or basic levels of skills?

The Skills Advisory Board in conjunction with local councils, trade unions, employer federations, and the Department of Education & Learning in Northern Ireland would appear to be the appropriate organisations or bodies. 

Question 16: There will be a number of responsibilities associated with proposed Tier 3 schemes.  Which of these should be placed on operators and employers of low skilled migrants?

Question 17: Should employers seeking to fill particular vacancies with participants on Tier 3 schemes be required to demonstrate that they have attempted to fill that vacancy with a resident worker?  YES

Additional comments

It is understood that this is the current test applied for low skilled and unskilled vacancies and it appears to work satisfactorily.  As such there is no reason to seek to impose or apply a more restrictive or onerous test. 

The suggestion that Compulsory Remittances should be introduced is problematic as it significantly impacts in a discriminatory way on the individuals rights to manage their own money.

It limits the ability of the worker to plan their own life and respond to unforeseen circumstances.

In addition, at present, migrants are potentially subject to a number of deductions from their wages - for example for accommodation/travel costs. Unscrupulous employers take advantage of these 'lawful' deductions to the disadvantage of the migrant, who is highly unlikely to jeopardise his or her employment by complaining about the deductions.  Compulsory remittances are likely to offer unscrupulous employers further opportunities for exploiting migrants.

For these reasons it is a further aspect of the proposed system which is likely to be unattractive to prospective migrants and encourage them to go elsewhere or access the irregular economy.

Question 18: Should there be an English language requirement for Tier 3 workers?  NO

Additional comments

There should not need to be an English language test as a prerequisite for a job. If English language fluency (or any other level) is required for the job then this is fine.  Where it is not an occupational requirement for the job then it should be treated like any other skill on a personnel specification. If you need people to pluck chickens and want to pay the national minimum wage it is unrealistic to expect them to have third level equivalent language skills.

Tier 4

Question 19:  What are your views about what a points system for students might mean in practice?

There is no objection in principle to a points system which is genuinely transparent and objective.  However, as has already been noted, the present provisions are not being applied in a transparent or objective manner and it is feared that the present decision makers will be unable to properly apply objective criteria in a transparent manner unless significant re-training and supervision occurs.  In this context it is noteworthy that when the 'primary purpose' requirement was withdrawn, officers continued to effectively use the old criteria to refuse applications, albeit purporting to refuse it on the basis that they could not be satisfied that the couple genuinely intended to live together. 

Question 20: Should leave to enter or remain in the UK for students be linked to a specific course at a specific institution?  NO

Additional comments

If the student has been able to demonstrate that he or she can support him or herself and has the necessary qualifications then the student should be able to choose the institution and course he or she wishes to attend.  The right to remain in the UK should not in these circumstances be tied to a specific course or a specific institution.

Question 21: Should educational institutions be required to help maintain integrity of the immigration control in order to be able to issue certificates of sponsorship?  NO

Additional comments

It is wholly inappropriate in principle or in practice for educational institutions to be required to control immigration.   The responsibilities for enforcing immigration should always be the responsibility of the government. In any event educational establishments have neither the skills nor ability to manage this.  Any attempt will lead to a lack of consistency of approach between institutions.

Tier 5

Question 22: What are the benefits to the UK of these kinds of temporary/exchange workers?

Invaluable as they add to the rich fabric of life in the UK.

Question 23: Is it right that the system should provide for them?  YES

Question 24: Should there be provision for tier 5 workers to switch into tiers 1 and 2?  YES

Question 25: Should additional conditions be attached?  NO

Sponsors

Question 26: Do you think employers, educational institutions and other sponsors have a responsibility in maintaining the integrity of the immigration control?  NO

Question 27: What should employers, educational institutions and other sponsors be expected to do to carry out that responsibility?

We are fundamentally opposed to employers, operators, educational institutions or other sponsors having some of the responsibility for maintaining the integrity of a managed migration system for the following reasons. 

Such a system is likely to lead to an inconsistency in approach, which is at odds with one of the key objectives outlined in the consultation document.

In addition, giving the employer/agent the role of policing the migrant’s status (rather than this being the responsibility of the immigration service) creates an uncomfortable power dynamic between employee and employer. This can lead to abuses of power where the employer/agent, being aware of the status of the employee can use this to their advantage (e.g. coercion of accepting new conditions before application for renewal).  A recent example of an employer exploiting their relationship with a migrant worker is of a migrant who was working on an SBS visa, but recently lost his job.  His employers are now harassing him and have advised him that they have revoked his visa and that he must return to his country of origin forthwith.  It is believed that they want him out of the accommodation they originally provided.  Increasing the employer or operator's responsibilities in terms of managing migrants will inevitably lead to further abuse or carelessness and the continued exploitation of migrant workers.

Moreover, in our experience migrant workers have often been left in a vulnerable position either deliberately by unscrupulous employers or inadvertently by those not acting with sufficient care.  For example, we have a number of clients at present whose work permits were not applied for in time and they have now been left in a very vulnerable position.  This is in spite of the migrant worker being in a shortage occupation and where the employer still wished to employ them. 

At a practical level, maintaining immigration control can be highly intrusive in respect of a right to privacy and family life.  For example, where the migrant’s right to work arises from the status of his or her spouse, an employer would be required to check up periodically that the employee was still married.

If, notwithstanding these objections, the employer and or the operator will be expected to take on some of the responsibilities of the immigration service then the responsibilities and roles of the operator and the employer have to be identified with a clear separation of duties/responsibilities.  Otherwise it is likely that both the employer and the operator will be able to avoid any sanctions imposed where it has been established that a migrant worker has been abused or exploited (either deliberately or inadvertently).

Moreover, the proposed system needs to be able to effectively police operators and employers.  At present there are statutory provisions which empower the authorities to penalise those employers who employ migrants unlawfully. However, unfortunately there has been very limited use of these provisions, which creates an environment where employers believe they can continue to employ migrants irregularly, without any fear of reprisal.  If the proposed system is to be sufficiently robust then the employers have to believe that significant penalties will be imposed where migrants are employed irregularly.

We believe that a strict liability should be placed on employers or operators who have abused or exploited migrants or adopted discriminatory practices, so as to enable appropriate regulation of employers and operators and encourage good practice.

In addition, migrant workers should be given and have access to accurate information in respect of their rights and responsibilities.  In addition, there has to be scope for the employee to be able to move easily from the employment otherwise there is an aggravated risk of abuse and exploitation of the migrant worker.

Question 28: What should be the criteria for being on a list of recognised sponsors?

Undertaking regular training in relation to best practice especially in the context of anti-discriminatory law and practice.

Bonds

Question 29: To which types of case would it be sensible for bonds to be applied?  For example, should a bond be required of applicants from countries defined as ‘high risk’ according to accepted criteria (number of breaches, returns etc)?  What about applicants from categories of entry regarded as ‘high risk’?

In our view there is no justification for a bonds scheme to be imposed on any migrant or applicant for the following reasons. 

It is potentially an abuse of the individual's rights and will automatically discriminate against all the nationals of certain countries.  We have successfully represented appellants, from 'high risk' countries, in challenging decisions that were based in part on general assumptions of the applicant because of their nationality.  In this context, there are serious concerns as to how countries are identified as being 'high risk'.  In paragraph 6.32 of the consultation programme there are examples given of what constitutes a high risk.  In our experience black migrants in the UK are far more likely to come to the attention of the authorities for these types of breaches than white migrants.  On the other hand, the consultation paper recognises the majority of migrants come from white migrant producing countries, for example Australia and USA.  It is implausible to suggest that only black migrants breach immigration control.  Therefore if this discriminatory categorisation of what constitutes "high risk" countries were to be incorporated into the proposed system then it further undermines any justification for the imposition of bonds. 

It is also likely to prove cumbersome and wholly impractical and the impact is most likely to be felt by the poorest sections of the developing world.

Question 30: How should a bonds scheme be operated?

It has no part to play in a managed migration scheme.  If, however, it is intended to introduce such a scheme then initially it should be tested by way of a pilot scheme.

Any scheme has to be non-discriminatory and be compatible with the UK's obligations under international conventions, including the Human Rights Convention. 

Question 31: Is contracting out a better option than trying to combine it with existing migration work?  NO

Additional comments

No it should not be contracted out for the following reasons. 

It is likely to raise concerns about quality standards and accountablity. 

Prvatisation is also likely to give rise to corrupt or unlawful actions.

It should not be a profit generating exercise and will only lead to further costs for the migrant.  As such it would be a further incentive for migrants to seek to enter illegally or go elsewhere.

Countering illegal working

Question 32: What improvements (eg different documentation) would help employers understand whether foreign nationals are entitled to work?

There needs to be greater emphasis in this area on compliance with anti-discrimination laws and the introduction of procedures to prevent discrimination.  As a practical measure, there should be a clear statement on the visa to that effect.

Question 33: What additional services would help employers in ensuring that they are not employing illegal migrant workers?

Although, the 'workingintheuk' website can resolve some of the problems, there is a real shortage of independent organisations offering advice to employers in Northern Ireland.  We have experienced a significant rise in the number of advice line queries from employers in relation to migrants and their immigration status.  As such, it is apparent that there is a need for additional services in Northern Ireland, perhaps at first instance funding could be provided for an independent organisation to offer support to employers looking to employ migrants.  Any such organisation should not be allowed to supply migrant workers as this could lead to a conflict of interest.

Buster Cox, Immigration Legal Adviser, Law Centre (NI)