AS IT approaches its first anniversary on 20 November, the government's new immigration regime for non-EU workers can already boast one notable scalp.
In September, Baroness Scotland, the Attorney General, was fined £5,000 for failing to keep documentation in relation to her housekeeper – a Tongan national who was working in the country illegally.
Strict documentation is a central tenet of the
points based system (PBS) of immigration, introduced last year, that sought to combine the 80 previous routes by which immigrants could enter the country into one five-tier system of entry.
Under the new rules, points are awarded to applicants based on their experience, age and, importantly, the skills that they possess.
The new set-up, which was modelled on the Australian method, replaced the old case-worker based application system and has the aim of bringing objectivity to a process that had apparently become prone to the subjective assessment of Home Office employees.
Its implementation came at a dire time for the UK economy that saw a huge drop in the number of applications made by companies looking to bring in foreign talent. That, coupled with the political fallout of rising unemployment, has made the new immigration system something of a political plaything, allowing the UK government to point to concrete evidence it was being tough on immigration.
But with around 60 per cent of migrants arriving in the UK coming from within the EU, and a need for skilled workers to help UK businesses and the NHS, critics have lined up against the system, complaining it is inflexible, confusing and unnecessarily tough on the wrong group of immigrants.
Under the new rules, the onus on compliance moved away from Home Office case-workers towards those coming into the country and their sponsors. Employers must now obtain a licence to employ overseas workers and are compelled to maintain fastidious human resource records, a requirement that caught out Baroness Scotland.
"Those obligations have always been around, but they were never centralised," explains Anne Morris, a leading immigration lawyer with Davidson Morris.
"So if an employer had asked me, 'What duties do we have towards an employee?', it would have been a little bit of that legislation, a bit of this case law and a bit of home office policy. It has pulled everything to the centre, outlining the exact list of duties and the exact list of penalties if you fail."
The new standards are similar for universities and colleges for foreign students, and both types of licence holders risk losing their rights to sponsor overseas migrants should they be found to be in breach.
But the new rigidity has been the main source of complaint for the users of the system. There is no first point of contact for applications and even miniscule errors in forms can lead to outright rejections that can only be appealed before a judge.
In the increasingly complicated industrial global picture, there are also fears the set-up is insufficiently flexible to deal with changing labour demands, especially in new industries and new markets.
"The biggest gripe we have as practitioners is that they have taken away discretion," Anne Morris says. "You tick the boxes and get your points, but there is no discretion."
A glance at the last available statistics show that in the year prior to the roll-out of the legislation (it began in February 2008) the Home Office reported the total number of non-EU work permit holders and their family members admitted to the UK was 112,485, a drop of 12 per cent from the previous year.
At the same time, 227,000 students from outwith the EU were allowed in.
Official figures for 2008-9 have yet to be released, but the Home Office has confirmed in the final two months of that year 4,300 people were admitted under the PBS.
The new system was implemented alongside a more profound alteration of the way the UK deals with immigration. The Home Office's Immigration and Nationality Department was replaced last year by the UK Borders Agency, a semi-autonomous structure operating within the Home Office and guided by two advisory committees.
The Migration Impacts Forum looks at the wide social impact of immigration, including pressures on local authority services such as housing.
Meanwhile, the Migration Advisory Committee advises on specific areas in which immigration is required to fill gaps in the labour market.
It is that committee that decides on the points applicable in the new system, which puts applicants into one of five tiers: Highly skilled; skilled with a job offer; low skilled; students and temporary workers.
Each category has a different points target and allows applicants to enter the country under certain conditions. For example, applicants under tier one and tier two can gain points for investing a lot of money in the UK, or have skills in areas that the Border Agency deems to be in short supply.
In theory, it allows immigration to respond more effectively to specific skills shortages and the Border Agency has produced a list of jobs that gain higher points. These include doctors, dentists and nurses, as well as engineers and scientists and more surprising occupations such as jockeys and dancers.
"The five-tier system has been a step in the right direction, because it has taken away a lot of the mystique," explains Anne Morris. "There is nothing worse than trying to explain to an employer the 80 different ways to bring somebody into the country."
"The five tiers means people can very clearly eliminate the ones not relevant to them. It has taken away a lot of the uncertainty."
Her enthusiasm for this aspect of the system is shared by Phil Taylor, the regional director of the UK Border Agency in Scotland and Northern Ireland: "The flexibility of the points-based system allows us to meet changing economic circumstances, and be sensitive to the needs of Scotland," he says.
But some critics say, despite its apparent flexibility, there is room for improvement. The UK Liberal Democrat home affairs spokesman Chris Huhne says the PBS is a step in the right direction, "but it still fails to offer a hard-headed assessment of the needs of different regions and parts of the economy". "Too many recent migrants have settled in the South East," he says, "Which now has less water per head than the Sudan. Too few are in areas, like Scotland, crying out for more population.
"We need a system that attracts migrants to those areas. The regional points-based system would reward migrants for moving to areas that need them and not just pull up the drawbridge because we have reached an arbitrary national limit."
And according to Anne Morris, there are yet more areas that could be improved. As well as grumbles over the reliability of the online system set up to handle applications, she says many companies employing foreign workers are ignorant of the rules, despite the efforts of the government to impress their responsibilities upon them in the run-up to the introduction of the system.
"The legislation has been out for a year, so you would think that most bodies would be up to date," she says. "Not a chance. In this year particularly, businesses have been focusing on surviving. Most have a recruitment freeze and are making sure that they are as lean as possible. This legislation has come in at a time a lot of companies aren't recruiting and they haven't had to look at work permits."
But things could yet become more confusing for employers and immigrants. In August, Phil Woolas, the UK immigration minister, launched a consultation called "Earning the Right to Stay" that proposed allowing immigrants to earn bonus points towards their visa by becoming active citizens of the country. What do points make? Visas.
