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Decline and fall of the Points Based System
Credit: Antoine Dautry on Unsplash

Decline and fall of the Points Based System

The UK needs a world class migration system to attract the brightest and the best from across the world… That is why I am so pleased today to be able to publish this points-based system for the UK.

– Home Secretary Charles Clarke, March 2006

We will introduce an Australian style points-based immigration system… one that attracts and welcomes the brightest and the best.

– Home Secretary Priti Patel, October 2019

In 2006 the Home Office published a plan called A Points-Based System: Making Migration Work for Britain. The Labour Home Secretary, Charles Clarke, described the proposals as “the most significant change to managed migration in 40 years”, saying that the UK needs to “attract the brightest and the best from across the world”.

This was to be accomplished with the aid of simplified visa rules for foreign workers. The plan promised that

Applicants will find the system simpler to understand and the rules for entry clearer and more consistently applied. It will be quicker and simpler for employers and educational institutions to bring in the migrants they need, and there will be more certainty about whether prospective migrants will be able to come to the UK. The public will better be able to understand who we are allowing into the UK and why, and have confidence that the system is not being abused. It will also be more straightforward for entry clearance officers and caseworkers to administer.

A Points Based System, containing the rules for most economic migration from outside the European Union, was duly added to the Immigration Rules. But the dystopian system we have ended up with stands in sharp contrast to that envisaged. By 2013, the Court of Appeal was opining that the rules of the Points Based System have “now achieved a degree of complexity which even the Byzantine Emperors would have envied”. As the House of Commons Library sums up the consensus: “it has come to be widely regarded by individual applicants, sponsors, immigration lawyers and the judiciary as unduly complex, burdensome, costly and ill-suited to the needs of its users”.

As we enter the 2020s, the government is once again promising fundamental reform of immigration by way of a points based system. Clarke’s Conservative successor, Priti Patel, promises a model that is “clear and easy for applicants and employers to understand” and “will attract the brightest and the best from around the world”. It is all very familiar — and may be no more than a branding exercise to capitalise on public belief that Australia operates a particularly rigorous immigration policy.

Still: taking the objectives in good faith, it is obvious that they are essentially the same as New Labour’s all those years ago. So what happened to the UK’s first points based system — and what lessons can we learn from its failure?

Removal of points from the system

The essence of a true points based system on the Australian model is that foreigners who want a work visa are scored on personal attributes such as educational qualifications, English language ability and work experience. The scoring system is flexible, such that there are multiple ways to earn enough points: a low score for English could be made up for with excellent work experience, for example. People can qualify with different blends of skills, a bit like there being multiple ways to assemble a winning hand in poker.

The Points Based System of 2006 was originally designed along these lines, up to a point. Points allocation in each visa category did contain an element of “trade off”, so that a deficiency of points in one area could be made up for in another. The criteria for being awarded points for a particular attribute would be fleshed out in “descriptors” intended to promote consistent decisions.

The Tier 1 (General) visa was perhaps the purest expression of a points based route, awarding points for age, previous earnings and qualifications, and (as with its Australian equivalent) not requiring a sponsor. Similarly, for sponsored workers under Tier 2 it was proposed that there would be higher points for more advanced qualifications, greater prospective earnings and working in a job where there were shortages. A trade off was envisaged, with an applicant making up points in salary, for example, against a lower level qualification. A migrant could be sponsored by an “A- rated” or “B-rated” sponsor, with more points available for the former.

None of these Australian-style persist. Tier 2 is now largely a creature of mandatory requirements: you either tick all the necessary boxes, or you do not. Tier 1 (General) has been abolished altogether. The “points based calculator” on gov.uk was switched off in 2016.

The end of objectivity

The 2006 paper set out a number of metrics by which the performance of the new Points Based System could be judged. The paramount consideration was

Objectivity; That attributes of applicants and needs of the UK are defined in a factual way (minimising subjectivity, inconsistency, and error); and the ability to evaluate similar applicants so that those with the same attributes receive the same entitlements.

The Home Office recognised that rules which promoted objectivity in assessing a migrant’s attributes would not be straightforward. “Drafting these descriptors”, it said, “is a difficult challenge and will take time to get right”. The Immigration Law Practitioners Association suggested a pilot, with the proposed new rules compared against the existing rules — something which did not occur.

Over time, we witnessed a tacit admission of failure in the search for objectivity. First we had “evidential flexibility”, introduced initially in secret, then revealed as policy and finally written into the Immigration Rules. Evidential flexibility reintroduced a degree of discretion to prevent absurdly harsh outcomes based on minor deficiencies in supporting documents.

Then came the introduction of “genuine” tests across many visa categories. Even if the applicant had the required points, the Home Office decision-maker could nevertheless question the genuineness of the application. This was particularly relied upon in Tier 1 (Entrepreneur) applications, with applicants required to undergo a “genuine entrepreneur” test: subjective assessment of an application’s merits.

The system thus developed into a hybrid, containing both objective and subjective criteria.

Ballooning of the Rules

The criteria for visas awarded under the Points Based System were laid out in the Immigration Rules. But the Home Office also published guidance alongside the Rules. Unlike changes to the Immigration Rules proper, policy guidance does not have to be laid before Parliament and so can be tweaked at will.

The problem was that this policy guidance was not just filling in fine detail: it was adding substantive requirements that an applicant would need to satisfy to be granted a Points Based System visa. This offended a core principle of UK immigration law as set down by the Immigration Act 1971: any rule that an applicant needed to satisfy to be granted leave must be in the Immigration Rules.

This state of affairs was challenged in court. From the line of cases beginning with Pankina [2010] EWCA Civ 719 and culminating in the twin Supreme Court decisions of Alvi [2012] UKSC 33 and Munir [2012] UKSC 32, the Home Office was compelled to place increasing amount of policy guidance formally within the Rules.

The decisions in Alvi and Munir in particular led to the panicked incorporation, the day after the judgment, of vast screeds of policy guidance into the Rules. This of course only added to the complexity. The new material, incorporating or expanding various appendices, upset the fundamental structure of the Immigration Rules. It ceased to make sense as a complete document and became increasingly idiosyncratic, with varying quality of drafting and disparate numbering systems.

Particular detail was afforded to the specification of acceptable forms of evidence. The Law Commission’s consultation on the Simplification of the Immigration Rules noted:

The current Tier 1 (Entrepreneur) Rules found in Part 6A and Appendix A amount to 11,702 words (approximately 4500 of which cover evidential matters, in the form of specified evidence). The Business Person Rules, found in Part 6 prior to their replacement in 2008, amounted to 2058 words, which were supplemented by eight pages of guidance.

There have been 63 statements of changes to the Immigration Rules since 2010, the majority of which will have amended at least some aspects of the Points Based System. This constant tweaking in pursuit of perfection has contributed to the Byzantine complexity derided by the courts. The system depended on reducing human agency in decision-making, but to achieve that the governing law needed to cover all possible permutations.  

Constant changes of policy

As well as a chronic inability to resist constant tweaking, changes in policy contributed to constant changes to the rules. The most significant of these followed the financial crisis of 2008. In July 2009, the Home Affairs Committee of MPs reported on the rollout of the Points Based System over the course of 2008 and early 2009. It noted the tightening of the system as a result of the financial crash:

Concern amongst the public and politicians about redundancies sparked debate about the extent to which migrants should be allowed to work in the UK, and how much jobs could and should be protected for UK residents. In this context the language used by the Government about the Points Based System became tougher.

This tightening was given additional impetus by the Conservative manifesto commitment in 2010 that net migration would be reduced to the tens of thousands. Faced with such a target, the primary mechanism available was to restrict economic migration under the Points Based System, given the challenges in curtailing EU free movement or family migration. A House of Commons Library report of July 2018 noted a dizzying list of changes over the preceding decade, broadly designed to reduce immigration. They included:

  • Closure of the Tier 1 (General) sub-category, which was arguably the closest example of a “pure” points-based UK visa category.
  • Closure of the Tier 1 (Post-Study Work) visa.
  • Limits on the number of visas available in certain categories.
  • Changes to the eligibility criteria and associated conditions for Tier 1 (Investor) and Tier 1 (Entrepreneur) visas.
  • Restricting eligibility for skilled worker visas (Tier 2 General) to graduate level jobs and raising the minimum salary requirement.
  • Limiting international students’ entitlements to work, bring dependent family members to the UK, extend their stay, and “switch: into a work visa category.
  • Introduction of the Immigration Skills Charge for employers.

By 2019 we had also seen the closure of the Tier 1 (Graduate Entrepreneur) and (Entrepreneur) routes.

All these changes add to complexity. By creating restrictions or removing routes you also must deal with the position of those already here. Shutting a route or altering fundamentals requires transitional provisions and consideration of whether grandfathering of rules should occur. Do it too much, and you create a mess of preserved routes and previously relevant versions of the rules which apply to different applicants depending on their own immigration history.

Staff turnover at the Home Office

The financial crash also led to fundamental changes in our civil service. In 2017, the National Audit Office reported that there had been a 26% reduction in the number of civil servants since 2006. Most of the reduction was in more junior grades, of Executive Officer and Administrative Officer, who constitute the “decision making” grades in the Home Office.

A prescriptive system which reduces the need for trained decision-makers admittedly lends itself to this kind of reduction in staff capability. But losing experienced people has consequences.

In January 2019 the Institute for Government published a report on The costs of high staff turnover in the civil service. This noted that high turnover of civil service staff had a number of adverse effects, in particular that staff moving roles too quickly served to “undermine good policy making”. Civil servants were moving department before they had fully mastered a policy area, and the report quoted various senior ministers complaining about the lack of policy expertise in their civil servants. The report said:

Institutional memory is vital to any organisation. It shapes everything from how staff perform basic tasks, to how they learn from past mistakes and improve, or ensure that work is not being repeated unnecessarily. But excessive turnover in Whitehall is damaging institutional memory, with negative consequences for policy making.

It added that civil service information management systems were considered to be very poor. “Teams in Whitehall therefore rely on people to act as institutional memory, but high turnover undermines this strategy: knowledge is lost when key individuals leave”.

The flawed development, at breakneck speed, of our Points Based System for immigration took place in the context of turmoil and capability loss within the civil service. It helps to explain the constant cycle of advancement and retreat, the retreading of old ground and the constant repetition of ideas without seemingly taking any lessons from the past.

Conclusions

What then can be said? Why did we end up in such a mess? It is difficult to reduce such a complex history to a few points, but let me try.

First, the architects of the Points Based System did not appreciate the scale of the task in trying to create a system based on wholly objective rules. As the drawbacks of such a system became apparent, subjective elements were reintroduced, as the cost of the system’s coherence.

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Second, the framers of the points based system overlooked constitutional restraints. The resulting court decisions led to the incorporation of guidance within the Immigration Rules themselves. This led to an over-complex system littered with overly prescriptive rules and detailed specifications.

Third, the financial crisis and political emphasis on reducing net migration lead to the visa routes available under the Points Based System being pruned, which further affected its efficacy and internal cohesion.

Finally, policy development and operational capability was adversely affected by budgetary pressures on the civil service.

We approach the next decade with a Conservative government intent on substantial reform of our immigration system, reportedly including proposals for a separate department for borders and immigration. Will the lessons of the past be heeded? It is difficult to be anything other than pessimistic. Yet the Institute for Government notes that the creating and dismantling of government departments can have positive outcomes, if handled correctly. I’ll conclude on this paragraph from that report, and leave you to make up your own minds.

Creating a new, focused department only works if the political will behind the new organisation is sincere. If it is simply a rebranding exercise, designed to garner positive headlines or give the impression of change but not properly equipped to achieve its new purpose, the restructuring is unlikely to have the impact the government may have envisaged.

Darren Stevenson

Darren Stevenson is a solicitor at McGill and Co.. Prior to joining the firm in 2008, Darren spent 6 years working at the Home Office with what was then the UK Border Agency, including representing the Secretary of State at tribunal hearings. Darren has extensive experience in all areas of UK immigration law with particular expertise in navigating difficult and technically complex areas, including the Points Based System, EC law and British nationality law.

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