The United Kingdom Border Agency's (UKBA) Points-Based System is the UK's immigration regime relating to those wishing to apply to gain initial admission into the UK and permission to remain for all forms of business and employment related immigration, as well as those who wish to study in the UK.
Gherson provides specialist advice and legal representation throughout the application process of the Points-Based System, both for applicants themselves and for the employers and education providers who sponsor them.
Gherson's experienced caseworkers and lawyers can also assist on the full range of applications, including visa applications to visit the UK, applications for British citizenship and also asylum applications.
The Points-Based System
Since its gradual introduction in 2008 and 2009, the United Kingdom Border Agency's Points-Based System has replaced the previous range of immigration routes for those seeking to enter the United Kingdom for employment, to invest in the UK, to set up in business or to study in the UK, although many of the criteria which used to be applicable to those routes continue to operate for qualification under the new system. With a few exceptions entry under the Points-Based System leads to eligibility to apply for settlement and thereafter for UK nationality.
The Points-Based System is comprised of five "Tiers" which are as follows:
- Tier 1 is the only part of the regime which does not require applicants to be sponsored either by an employer or an education provider. It has six subcategories: Investor, Entrepreneur, Graduate Entrepreneur, Exceptional Talent, General (closed to new applicants) and Post-Study Work (also closed to new applicants).
- Tier 2 - for skilled workers sponsored by employers holding a Tier 2 sponsor licence issued by the UKBA to come to the UK either in order to fill a job for which no suitable employee is available from the resident labour market (Tier 2 (General)), or for people already working for a company outside the European Economic Area who are required to join their employer's UK office on a temporary basis (Tier 2 (Intra Company Transfer)). Additionally, Tier 2 has separate subcategories for Ministers of Religion and for Sportspeople.
- Tier 3 - this Tier, which was intended for unskilled workers, has never been operational since the implementation of the Points-Based System and seems likely to remain closed.
- Tier 4 - for those wishing to study in the UK. Tier 4 (General) and Tier 4 (Child) Students have to be sponsored by a college or a school (in the case of Tier 4 (Child) Students) which has been granted a Tier 4 sponsor licence by the UKBA.
- Tier 5 - which has two subcategories: Tier 5 (Youth Mobility), enabling young people from Australia, Canada, Japan, New Zealand, Monaco and Taiwan to live and work in the UK for a period of two years, and Tier 5 (Temporary Workers), for those sponsored by licensed UK employers to come to the UK on a temporary basis.
Eligibility for entry under the Points-Based System is heralded as being genuinely objective. A key feature of this is the absence of any discretion exercisable by the UKBA's staff when considering applications for entry clearance and for leave to remain. To this end applicants must prove their entitlement to leave to enter or remain by the production of documents specified by the Secretary of State in guidance published on the UKBA's website. The Immigration Rules point out that if an application is not accompanied by these specified documents it will not meet the requirements of the Rules.
The requirements for eligibility under each Tier are subject to frequent variation. There have been seven significant amendments so far in 2012, and eight in each of 2010 and 2011. Keeping abreast of the law is therefore a fulltime occupation and there are many pitfalls for the unwary. Anyone making an application under the Points-Based System is strongly advised to obtain professional legal advice.
There is an ever shortening list of countries from which people can come to visit the UK without having a visa. Even nationals of those countries which are currently not required by the UK to have a visa before they leave their own country are strongly advised to obtain a visa.
People wishing to visit the UK must apply in the category which applies to them individually. The Immigration Rules currently provide for the following twelve categories: general, child, business (which includes "academic visitors"), sports, entertainer, student, prospective entrepreneur, visitors in transit, visitors for private medical treatment, visitors for marriage or to enter a civil partnership, visitors as the parent of a child at school in the UK, and for nationals of the People's Republic of China under the Approved Destination Status Agreement. Family visitors are included in the general category.
The Immigration Rules additionally provide for applications for visas from spouses, civil, unmarried and same sex partners of British citizens or of people who have indefinite leave to remain who wish to join them in the UK. Similar provisions are made for children of parents and relatives who are British nationals or who have indefinite leave to remain.
Nationals of the countries comprising the European Economic Area (citizens of the countries comprising the European Union as well as those of Switzerland, Iceland, Liechtenstein and Norway) and their family members (whether or not they are themselves EEA nationals) are not subject to the UK's Immigration Rules. Instead their admission into and stay in the UK is subject to European Union law, implemented in the UK by the Immigration (European Economic Area) Regulations 2006.
A separate regime applies to nationals of these countries, which joined the European Union relatively recently. There are no restrictions to Bulgarian and Romanian nationals establishing themselves in business in the UK or if they are self-employed, but those who are working for UK employers are subject to the Accession (Immigration and Worker Authorisation) Regulations 2006. These regulations were amended in December 2011, extending the employment restrictions until 31 December 2013.