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UK: New immigration system forces UK academics to act as "an extra arm of the police", by Max Rowlands

01 April 2009

New immigration controls are being phased in to compel UK universities to surveil their international students.

New immigration controls being phased in as part of the government’s Points Based System (PBS) will compel UK universities to surveil their international students. Under tier 4 of the new system any educational institution wishing to enrol students from outside the European Economic Area (EEA) and Switzerland must apply to join the UK Border Agency’s (UKBA’s) list of registered sponsors and agree to adopt immigration functions. This means that, among other things, they will have to maintain a record of non-EEA student passports, visas and contact details and report poor attendance to the UKBA. Some universities are already asking academics to take full registers at lectures even if attendance is not compulsory. This inordinate response stems from the fact that failure to meet these new responsibilities will result in the withdrawal of the institution’s sponsorship license and with it the ability to admit non-EEA students (and the high tuition fees they pay).

Universities will also be removed from the list of registered sponsors if they fail to report to the UKBA on non-EEA employees sponsored under other tiers of the system. This and the new Civil Penalty System introduced in 2008, under which employers can be fined up to £10,000 for every irregular immigrant they are found to employ, has resulted in increased monitoring and checks on foreign members of staff. That these new practices have been introduced with little debate is indicative of Britain’s growing surveillance culture. The PBS also represents the growth of “self-surveillance” schemes which encourage members of the public to monitor and police each other’s behaviour.

The new immigration Points Based System

The UK PBS is based on the Australian model and was first outlined in the 2006 Home Office document A Points Based System: Making Migration Work for Britain. [1] The old system, described in the report as inefficient, confusing and overly bureaucratic, has been replaced with a five tier framework:

Tier 1 - Highly skilled individuals to contribute to growth and productivity

Tier 2 – Skilled workers with a job offer to fill gaps in UK labour force

Tier 3 – Limited numbers of low skilled workers needed to fill specific temporary labour shortages

Tier 4 – Students

Tier 5 – Youth mobility and temporary workers: people allowed to work in the UK for a limited period of time to satisfy primarily non-economic objectives

Applications are appraised and awarded a point score on the basis of how well pre-defined criteria (such as language skills, finances and age) are met. These criteria are different for each tier, as is the number of points required to be granted entry. The system is designed to be highly transparent and easy to understand with the intention that people can assess themselves, thus cutting down on the number of erroneous applications. If an applicant fails to score enough points for the tier they will be refused entry.[2]

Significantly, there is no longer a formal right of appeal for a refusal. Instead failed applicants can request an “administrative review” of their decision which is conducted internally by entry clearance managers. This has led NGOs working in the field, such as the Immigration Law Practitioners’ Association (ILPA), to question the fairness and impartiality of the application process.[3]

Those applying under tiers 2-5 have to provide the UKBA with a certificate of sponsorship from a licensed employer or educational institution. To join the list of accredited sponsors, employers and education providers must:

satisfy the requirements for the particular Tier in which they wish to sponsor migrants, and accept certain responsibilities to help with immigration control.

These responsibilities are different for each tier, but in all cases failure to fulfil them will result in the sponsor being removed from the list. This would mean that they could no longer sponsor migrants under any tier. Thus, removal for failing to report to the UKBA on employees sponsored under tier 2 would also mean that they could no longer enrol students under tier 4, and vice versa.

Licensed sponsors are awarded either an A rating or a B rating and their details are made available on the UKBA website. A sponsor with a B rating must “improve its performance within a relatively short time” or face having its accreditation withdrawn. All sponsors are subject to unannounced visits by UKBA enforcement teams to check that the responsibilities of sponsorship are being met.

Tier 4 – Students

The concept of sponsorship underpins the new PBS and is of particular importance for the education sector whose institutions will undoubtedly be the biggest users of the new system. 309,000 non-EEA students entered the UK in 2006 [4] and British Council research estimated the average annual contribution of foreign students to the British economy at £8.5 billion. [5] The UKBA published a Statement of Intent for the implementation of tier 4 in which it emphasised that:

Those that benefit from migration will be expected to take greater responsibility for the migrants they bring to this country… For the education sector, this means we will expect education providers to take more responsibility for their recruitment decisions and to keep track of their students once in the UK. [6]

To be granted entry, tier 4 applicants must acquire forty points. Thirty are awarded for obtaining a certificate of sponsorship from an accredited institution to undertake a course “at a suitable level.” The remaining ten points are given to applicants able to show that they have enough money to cover course fees and monthly living costs. Once in the UK the onus is very much on the sponsor to help ensure that the student is complying with the terms of his/her visa. Most of the tier 4 reporting responsibilities are currently voluntary while “migrant reporting functionality in the sponsorship management system“ is being rolled out. This will happen between autumn 2009 and March 2010 at which point it will become compulsory for a sponsor to:

Keep a copy of all their non-EEA students’ passports showing evidence of their entitlement to study;

Keep each student’s contact details and update them as necessary;

Report to UKBA any students who fail to enrol on their course;

Report to UKBA any unauthorised student absences [missing 10 “expected contacts”]

Report to UKBA any students who discontinue their studies (including any deferrals of study);

Report to UKBA any significant changes in students’ circumstances, (e.g. if the duration of a course of study shortens);

Maintain any appropriate accreditation;

Offer courses to international students which comply with UKBA conditions;

Comply with applicable PBS rules and the law; and

Co-operate with UKBA

Under the previous system the Home Office occasionally approached institutions to check whether foreign students had been attending their course. This was done on an ad hoc basis with no formal obligation on the institution to respond (although not doing so harmed the chances of the student being allowed to remain in the UK). Under the PBS there is still no legal obligation to adopt these functions of immigration control. However, should an education provider now fail to comply they risk losing their status as an accredited sponsor.

Non-EEA employees

Like all UK employers, universities also have sponsorship responsibilities for any non-EEA staff they employ under tiers 2, 3 and 5. If a non-EEA employee - be it an academic, administrator, caterer or cleaner - misses 10 working days the university is obliged to notify the UKBA. They must also report: when their contract of employment ends; if they stop sponsoring them for any other reason; if there are changes in job circumstances such as salary; and if they have any reason to suspect they are breaching the terms of their visa. [7]

Anyone who employs non-EEA nationals also has stringent legal obligations under Sections 15 to 26 of the Asylum and Nationality Act 2006 which came into force in February 2008. It introduced steeper penalties for the employment of irregular migrant workers. Section 15 of the Act introduced a civil penalty system under which employers face a fine of up to £10,000 for each irregular worker they employ. Under Section 21, in serious cases, the UKBA can prosecute those who knowingly employ (or have employed) irregular workers. This offence is punishable by an unlimited fine and/or a prison sentence of up to two years. However, sanction can be avoided if employers demonstrate a willingness to inspect the original documents of prospective non-EEA employees and perform annual checks on the eligibility of those already employed. UKBA guidelines confirm that by complying with these controls the employer has an “excuse against payment” that can help them avoid a fine if they later unknowingly find themselves at fault. [8]

Employers are thus incentivised to adopt UKBA functions and monitor their staff. To facilitate these immigration checks, in November 2008 biometric identity cards were issued to all foreign nationals who had been given permission to extend their stay in the United Kingdom. In March 2009 the scheme was extended to cover the dependants of successful applicants and students (who now also have to provide their biometric data in their original tier 4 application). The majority of successful applicants under other tiers of the PBS will continue to have a sticker put in their passport under the old system. [9]

The reaction of UK universities

The further and higher education sector’s reaction to the PBS has been uncertain and inconsistent. The scheme discriminates against non-EEA students and undermines academic freedoms, yet many institutions have swiftly implemented new procedures to ensure it is adhered to with little or no debate. Non-EEA students are charged high tuition fees and effectively subsidise many institutions. The prospect of losing the ability to admit them or paying £10,000 fines for employing staff who lack proper documentation has elicited panicky knee-jerk reactions from some university management.

A growing campaign against this is being led by the University and College Union (UCU) which strongly condemned the PBS at its congress in May 2009. It warned that the new immigration rules will “turn our members into an extra arm of the police force.” The organisation’s general secretary, Sally Hunt, told Labour Research that:

We do not believe it is appropriate or effective to task colleges and universities with the policing of immigration. UK higher education is rightly proud of the diversity of its staff and students. These measures would see reluctant lecturers acting as border guards and sending an unsettling message around the world of a fortress Britain culture. [10]

UCU highlighted several examples of how universities have started to perform immigration checks on staff and students. Lampeter University sought to check the documentation of all members of staff to ascertain whether they were legally permitted to work in the UK. The College of North East London made a similar request for staff to produce their passports before being forced to back down. And Goldsmith College asked all staff to put their attendance registers online. [11] Writing in Times Higher Education, Ann Singleton, Steve Tombs and David Whyte argued that:

What is common to these responses is that they are discriminatory and likely to result in at best prejudicial and at worst unlawful actions against individual colleagues and students. Across the sector, management responses are confused and overzealous. The atmosphere for non-EU students and colleagues is becoming increasingly hostile and surrounded with doubt and suspicion.[12]

In some cases external examiners and visiting lecturers have been asked by universities to provide their passport details. And in a high profile case at the School of Oriental and African Studies (SOAS) in June 2009, nine members of the university’s cleaning staff were detained by immigration officials. They were called to a meeting by ISS, the company the university uses to contract cleaners, where they were met by around 40 UKBA officials. Two university senior administrators were present at the raid, but no advance warning was given to staff. SOAS cleaners had recently been campaigning for better working conditions, the London living wage and greater union representation. Six of those arrested were deported within two days, two held in detention and one went into hiding. Sixty SOAS students responded by occupying the principal’s office for three days until a number of concessions were met. The university eventually agreed to write to the Home Secretary asking for leave to remain for the cleaners not deported and the immediate return of those who had been. They also agreed to discuss the possibility of bringing cleaning in-house, to acknowledge UCU's policy of non-compliance with immigration raids, and to not take action against those involved in the protest. [13]

The implications of compliance

In his foreword to A Points Based System: Making Migration Work for Britain, the then Home Secretary Charles Clarke said:

I believe that this new points-based system will allow employers and those in educational institutions to take ownership of migration to this country. They, rather than just the Home Office alone, will be able to vet who comes into the UK.

But is this an appropriate role for universities? The principal of academic freedom holds that universities should be independent of government to ensure that teaching and research can be carried out without political interference. This means that academics can conduct research and publish findings without fear of state sanction and can act as independent experts in their field. Making them do the work of the UKBA undermines this tenet.

UK universities find themselves in a precarious position. If they refuse to implement the PBS and lose their accredited status the financial consequence would be disastrous. But assuming an active role in immigration control would unquestionably have a damaging effect on the education sector’s health. Surveilling students would fundamentally undermine the relationship of trust between them and members of staff. This, together with tier 4’s rigorous application process, which includes stringent financial checks and the mandatory submittal of biometric data, is likely to reduce the international appeal of UK universities. The financial repercussions of a decline in the number of non-EEA students would be severe for tertiary education in the UK. Widespread concern was voiced at a UCU conference on the PBS held in April 2009, that a decrease in foreign student numbers would damage university programmes, funding, international reputations and jobs. [14]

However, the ramifications of non-cooperation are unclear. The UKBA has emphasised that it holds sponsors directly responsible for the actions of staff they appoint to administer the new system. [15] Further, legal advice issued to employers by Law at Work recommended that they “amend employment contracts to take account of the PBS changes” to include “an obligation on employees to reveal changes in circumstances.” [16] This means that while university staff have no legal obligation to perform checks on foreign staff and students, they could face disciplinary action should they refuse to do so. Protest through non-compliance would be undertaken at considerable risk. The system is therefore likely to prove internally divisive. Academics who object to the scheme will be pitted against university administrators charged with ensuring that the institution’s responsibilities are met.

The wider context – the normalisation of surveillance

The PBS’s imposition of stringent sponsorship responsibilities can be contextualised within a broadening debate on the nature of surveillance. The issue is increasingly not solely whether surveillance is a good or bad thing, or how much of it is permissible, but what form it should take and who should carry it out. The former Information Commissioner, Richard Thomas, confirmed Britain to be the “most surveilled” western state in 2006 and in February 2009 warned against “hardwiring surveillance” into everyday life. [17] In recent years there has been a proliferation of government schemes in which members of the public are actively encouraged to surveil one another.

For example, government anti-terrorism posters encourage people to studiously monitor neighbours and report any activity they deem to be suspicious. In March 2009 a campaign ran under the slogan “Don’t rely on others. If you suspect it, report it.” One poster encouraged citizens to report anything suspicious they saw in their neighbours’ garbage bins such as empty chemical bottles. Another poster urged people to report anyone they saw studying any of the UK’s 4.2 million CCTV cameras.[18] Similarly in March 2008, the Metropolitan police launched a counter-terrorism advertising campaign that encouraged the public to report anyone they thought to be taking suspicious photographs. The advertisements ran in national newspapers with the slogan: “Thousands of people take photos every day. What if one of them seems odd?” [19] And in July 2009 Cambridgeshire and Hampshire police forces launched radio campaigns encouraging people to check the background of anyone they think behaves oddly around children. Members of the public can contact police and check whether an individual is on the sex offenders register. [20] In short, the public is being urged to surveil and police each other’s actions.

The promotion of this form of ‘self-surveillance’ is also strongly evident in the raft of anti-social behaviour legislation introduced in the last ten years. Acceptable Behaviour Contracts and, in particular, Anti-Social Behaviour Orders (ASBOs) rely heavily on public pro-activeness to be effective. The latter are civil orders, made against any person over ten years of age, which ban them from committing certain acts, entering designated geographical locations or socialising with specific individuals. Breaching an order is a criminal offence punishable by up to five years in prison, but that has not prevented over half of all recipients violating the terms of their order. Members of the public are encouraged to gather evidence against objectionable neighbours to aid the application process. In a number of cases this has led to accusations of vindictiveness. Once an order is made, many of the things prohibited by an ASBO, and thus criminalised, are so petty that it is virtually impossible for the police to enforce. Thus if someone is banned, for example, from walking on a specific road, wearing a hooded top or swearing too loudly at their television set, it is often the responsibility of their neighbours to notify police of a breach to ensure that they are punished. To this end police actively encourage public participation by “naming and shaming” ASBO recipients. Their name, photograph and the terms of their order are distributed in leaflets, published in the local press and posted on the internet. Those with orders can then be monitored by their neighbours. Peterborough council went so far as to offer people CCTV cameras and Dictaphones to gather evidence against their neighbours. [21]

And while the surveillance of others is being normalised, perversely the right of the public to monitor the state is being increasingly curtailed. Since February 2009 an individual can be arrested for photographing a police officer. Section 76 of the Counter Terrorism Act 2008 permits the arrest of anyone taking photographs of members of the armed forces, the intelligence services or police officers “likely to be useful to a person committing or preparing an act of terrorism.” The Terrorism Act 2000 has also frequently been invoked to restrict photography when police claim a photographer’s subject matter is sensitive to issues of national security (specifically under Section 44 which gives the police powers of stop and search). And media workers are increasingly being obstructed in their work by police, particularly at political demonstrations. Alarmingly, they are also being targeted and filmed by the Metropolitan Police’s Forward Intelligence Team (FIT). FIT units attend large-scale gatherings to archive video footage of potential troublemakers. Despite police assurances that media workers are not their intended target, there is an abundance of video evidence indicating otherwise. At Climate Camp journalists were filmed in a café several miles away from the protest site. [22]

Thus there is an obvious contradiction in government policy. A sense of social responsibility for the surveillance of neighbours and colleagues is being fostered, but at the same time control over what can and can’t be surveilled is being increasingly tightened. This disparity is illustrated by the aftermath of the July 2005 London tube bombings in which the police relied heavily on public photographs and video images taken on the day. [23] Ironically the recording of such footage could today result in arrest.

The PBS represents a dangerous extension of this trend because of the financial penalties non-compliance potentially incurs. Universities that refuse to administer the system cannot be punished by criminal law, but removal from the UKBA list of approved sponsors will have a devastating impact on their ability to function. The danger is that university management’s need to administer this risk will lead to increasing interference in daily academic decision-making. This could limit the free exchange of ideas and personnel with academics and universities outside the EEA.

The decision to charge educational institutions with the responsibility of policing immigration has been made with little or no debate. It reflects increasing state control over the right to surveil others and the swiftness with which it has been implemented by many universities is genuine cause for alarm.

Footnotes

[1] Home Office website:
http://www.homeoffice.gov.uk/documents/command-points-based-migration?view=Binary

[2] UKBA website:
http://www.ukba.homeoffice.gov.uk/managingborders/managingmigration/apointsbasedsystem/howitworks

[3] ILPA Briefing on a Points-Based System: Making Migration Work for Britain March 2006

[4] Select Committee on Economic Affairs First Report: http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeconaf/82/8210.htm

[5] British Council website: http://www.britishcouncil.org/home-press-180907-global-value-study.pdf

[6] UKBA website: http://www.ukba.homeoffice.gov.uk/sitecontent/documents/managingourborders/pbsdocs/statementofintent/studentsunderthepointsbased.pdf?view=Binary

[7] UKBA website:
http://www.ukba.homeoffice.gov.uk/employers/points/sponsoringmigrants/sponsorshipduties/reporting/

[8] UKBA website:
http://www.ukba.homeoffice.gov.uk/employers/preventingillegalworking/complyingwiththelaw/post280208/

[9] UKBA website:
http://www.ukba.homeoffice.gov.uk/managingborders/idcardsforforeignnationals/

[10] Labour Research, June 2009: “We are not border guards”

[11] University and College Union website:
http://www.ucu.org.uk/index.cfm?articleid=3705

[12] Times Higher Education 15 June 2009:
http://www.timeshighereducation.co.uk/story.asp?storycode=406422

[13] http://freesoascleaners.blogspot.com/

[14] University and College Union website:
http://www.ucu.org.uk/media/pdf/k/g/pbs_seminarreport_apr09.pdf

[15] UKBA website:
http://www.ukba.homeoffice.gov.uk/employers/points/sponsoringmigrants/sponsorsandratings/awardaandbratings/

[16] Law at Work, July 2008:
http://www.taylorwessing.com/uploads/tx_siruplawyermanagement/Law_at_Work_-_July_2008.pdf

[17] The Times, 27 February 2009:
http://www.timesonline.co.uk/tol/news/politics/article5812076.ece

[18] Infowars website:
http://www.infowars.net/articles/march2009/250309Stasi_UK.htm

[19] Metropolitan Police website:
http://www.met.police.uk/campaigns/campaign_ct_2008.htm

[20] BBC News website, 9 July 2009:
http://news.bbc.co.uk/newsbeat/hi/the_p_word/newsid_8142000/8142148.stm

[21] Statewatch ASBOwatch website:
http://www.statewatch.org/asbo/ASBOwatch.html

[22] NUJ website: http://www.nuj.org.uk/innerPagenuj.html?docid=910

[23] BBC News website, 10 July 2005:
http://news.bbc.co.uk/1/hi/uk/4668675.stm