The future has arrived: post-Brexit immigration rules published
This article was written by Immigration and Global Mobility Partner Samar Shams with support from Associate Partner Talitha Degwa on 23 October 2020.
The Home Office has been adapting existing immigration rules bit by bit to form its future immigration system. From 1 January 2021, EU nationals and their family members will no longer enjoy free movement rights in the UK; they and all other non-UK nationals will have to apply for visas under the immigration rules to live and work in the UK.
On 22 October 2020 the Home Office published the last pieces of the puzzle, the rules for sponsored worker visas replacing ‘Tier 2’ visas. The new sponsored worker visas include the Skilled Worker route, generally for new hires, and the Intra-Company Transfer route, for employees transferring to a UK organisation from linked entities overseas. Most of these rules will be effective from 1 December 2020, so that applications can be processed in time for workers to come to the UK under the new rules from 1 January 2021.
The Points-Based myth
The government is packaging the changes to the immigration rules as ‘new’ rules comprising a points-based system. In fact, the changes are modifications to the existing rules and only one element on one visa category involves a points calculation: Skilled Workers can trade points for salary, a PhD and their role being on the shortage occupation list.
The government has introduced this points calculation despite its own advisors stating that shortage occupation list should not be used as a salary reduction mechanism. Why? The government is keen to be seen to deliver the points-based system it has been promising for years. In fact, there is no ‘points-based immigration system’ anywhere in the world. There are points-based visas, for example in Australia and Canada, where applicants register their interest and are invited to apply on the basis of scoring points for characteristics such as age, qualifications and experience.
Points-based visas do not require an offer of a job and sponsorship from an employer. The government has stated that it will eventually introduce a points-based visa for highly skilled workers, but it will not be available in 2021. Please Samar’s article for Maddyness for more information.
UK employers who are having difficulty hiring the talent they need should consider applying for sponsor licences. Those who already have licences will be able to use them to sponsor workers in the new system. Tier 2 General sponsor licences will convert to ‘Skilled Worker’ sponsor licences and Tier 2 Intra Company Transfer sponsor licences will convert to ‘Intra Company Transfer’ licences.
The sponsorship system is one in which the Home Office relies on employers to assign work authorisation to non-UK nationals. The Home Office guards against abuse by requiring declarations of responsibility from sponsor licence applicants and taking enforcement action for non-compliance with sponsor duties. UK businesses should seek advice on sponsor compliance, record-keeping and reporting duties and the HR systems necessary to fulfil them, before applying for a sponsor licence.
The (medium and highly-) Skilled Worker route
The new Skilled Worker route will be in effect from 1 December 2020 for all online applications submitted on or after 9am on that date. This is true even where a Certificate of Sponsorship is issued before then; please get in touch for help with the particular process required in these circumstances.
The Skilled Worker route is simpler than its predecessor, Tier 2 General: Sponsors are not required to advertise vacancies and the limit on the number of Skilled Worker visas is suspended. These changes will save sponsors time and money during the sponsorship process.
Another simplification is the abolition of the ‘cooling off’ period which prevented Tier 2 General migrants from reapplying for a Tier 2 visa within 12 months of leaving the UK or switching to another visa type. Please see below for the modification of the ‘cooling off’ policy for Intra-Company Transfers.
Skilled workers will require an offer for a medium or highly skilled role. The opening up of sponsorship to medium-skilled roles is a significant change that has been overlooked in the turbulence of recent months. The drop in skill level means that sponsorship is now a viable option for entire sectors of the economy that were not able to take advantage of it previously.
Affected industries and roles include the following:
- Building and Construction, e.g. plumbers, electricians and bricklayers
- Human Resources
- Hairdressers and beauty salons
- Theatre and dance
- Manufacturing, e.g. process and production technicians
- Graphic design
- Product design
- Clothing design and manufacture
- Agriculture, horticulture and farming
- Forestry and fishing
Applicants need at least intermediate English. They have to meet an absolute minimum salary threshold of £20,480. Applicants must earn at least 20 points from salary, having a PhD, the job being on the shortage occupation list or their being a ‘new entrant’ to the labour market.
They must satisfy conditions in one of the rows in the following salary table, even if they gain zero points:
|General salary threshold
|Salary of at least £20,480
|At least 80% of the going rate for the profession (70% if a new entrant).
|Salary of at least £23,040
|At least 90% of the going rate for the profession.
|Salary of at least £25,600
|At least the going rate for the profession.
|Salary of at least £20,480
|Listed health/education job and meets the relevant national pay scale.
The ‘going rate’ for each role is listed in the immigration rules. It is based on the 25th percentile of salaries for each role.
The points gained for salary can be combined with the following points for a PhD, a job being on the shortage occupation list or the application being a new entrant to the labour market, to make up the required 20 points:
|Education qualification: PhD in a subject relevant to the job
|Education qualification: PhD in a STEM subject relevant to the job
|Job shortae occupation (as designated by the MAC)
|Applicant is a new entrant to the labour market (as designated by the MAC)
Currently, a role’s inclusion on the shortage occupation list streamlines the sponsorship process by exempting the sponsor from having to fulfil the Resident Labour Market Test, e.g. by advertising the role. With the abolition of the Resident Labour Market Test in the new system, the significance of the shortage occupation list will be the reduction to the minimum salary that it affords.
The shortage occupation list is being retained for the time being. This means that the lower salary provisions of the new rules only apply to highly skilled roles. The Government is not including medium skilled roles on the new shortage occupation list, at least for the time being. This is contrary to Migration Advisory Committee’s recommendations for changes to the list, which suggested inclusion of medium skilled roles in tech, construction, engineering, medical and creative sectors.
An applicant will be considered a new entrant to the labour market where they are switching from a Student visa or from the future Graduate visa route, they are under 26 years old or they are working towards recognised professional qualifications.
A tech company would like to sponsor a data analyst. This is a medium-skilled role for which sponsorship will be appropriate for the first time under the new rules. The going rate for data analysts is £36,600. The applicant is 30 years old and currently residing and working in India for an unrelated company. The proposed salary is £28,000. In this scenario, the role will not be eligible for sponsorship because the salary does not satisfy the conditions at any of the rows in the salary table.
What is the minimum salary in this scenario? It is the going rate for the profession, £36,600. As the applicant will not gain any points from the second table, they must gain 20 points from the first table, which means a salary of at least £25,600 and of the going rate for the profession. In this case, the going rate is the higher figure so that is the required minimum salary.
A body shop would like to sponsor a car paint sprayer, another medium-skilled role for which sponsorship will be appropriate for the first time under the new rules. The going rate for car paint sprayers is £23,000. The applicant is 23 years old. The proposed salary is £23,000. In this scenario the applicant will satisfy the minimum salary requirement but earn 0 points for salary. They will earn 20 points for being a new entrant to the job market, based on their age. Therefore, they will fulfil the points requirement.
Both the data analyst and the car paint sprayer role were recommended for inclusion on the shortage occupation list and might be added in future changes to the immigration rules.
Other changes to the Skilled Worker route include the following:
- A greater allowance for switching into this route, for example from family-base visas;
- Removal of the £35,800 threshold for settlement; and
- Expansion of the criminal records certificate requirement to cover medium-skilled roles newly eligible for sponsorship.
The Intra Company Transfer route will undergo fewer changes. The minimum skill level will be maintained at graduate level. The minimum salary level for this route will be maintained at £41,500. A subcategory for Graduate Trainees will be retained, with a lower salary minimum of £23,000. Changes to the Intra Company Transfer route include the following:
- Applicants will be able to hold Intra-Company Transfer Leave for up to five years in any six-year rolling period. For applicants who are considered ‘high earners’ the limit will be nine years in any 10-year period;
- The high earner threshold will drop from the current £120,000 to £73,900, for Intra-Company Transfers; and
- Applicants will be able to switch into this route from within the UK. The exemption for high earners from having to have 12 months of service for a related overseas company will be retained. Those who are not high earners will still have to satisfy the overseas service requirement in order to switch to the Intra-Company Transfer route from within the UK
The Intra-Company Transfer route will have a different minimum salary requirement and, unlike the Skilled Worker route, the minimum skill level requirement will be maintained at graduate level for Intra-Company Transferees.
Welcome changes to the Intra-Company Transfer route include that Intra-Company Transferees will be allowed to switch into the Skilled Worker route. This affords them a possible route to settlement. The restriction preventing Intra-Company Transferees from applying for settlement will otherwise apply and time spent in the UK as an Intra-Company Transfer migrant does not count towards the residency period required for settlement.
Cross-cutting changes: English language and maintenance
The new rules consolidate English language and maintenance requirements to make them more uniform across visa types. Affected visa types include Skilled Worker, Representative of Overseas Business, UK Ancestry, Start-up, Innovator and Sportsperson.
Applicants will only have to prove the required level of English language once and will be able to rely on UK GCSE/A Level or Scottish Highers to demonstrate English language.
Regarding maintenance, applicants who have already been in the UK for a year will not need to meet the maintenance requirement a second time; this applies to Student, Skilled Worker, Intra Company Transfer, Start-up and Innovator visas among others.
Applicants will be able to rely on more types of accounts and on funds from third parties. The timeframe for holding funds is being made uniform at 28 days. Perhaps most significantly in practice, applicants will be able to rely on electronic bank statements without having to get the bank to stamp every page.
Student maintenance rules are being amended to £1,334 per month inside London and £1,023 outside London.
The new Graduate route
The new rules do not include the requirements relating to the new Graduate visa, which the Government announced will be available to international students in the UK from summer of 2021. allowing them to stay in the UK and work, or look for work, after they graduate. Please see our July 2020 article ‘Details published on the UK’s future immigration system’ for more information on the new Graduate route.
Other business and work visa routes
A change to the Global Talent route is designed to make this visa type more accessible to emerging leaders. The Innovator and Start-Up visas which allow for self-employment and the Representative of Overseas Business visa, for employees setting up a UK branch or subsidiary, will remain largely the same. Some of the cross-cutting English language and maintenance changes discussed above will apply. These routes will also benefit from new, more generous allowances for switching visa types from within the UK.
On 5 October 2020 the Tier 4 student route was replaced by the new Student and Child Student category, which now incorporates EEA nationals being able to obtain sponsorship from an approved UK school, college or university in order to study in the UK. However, in-country applications by EEA nationals under the new Student route will invalid if submitted before 1 January 2021, and entry clearance applications by EEA nationals will only be granted with leave commencing from 1 January 2021.
The new route permits increased switching within the Student route and increased switching between routes within the new points-based system.
Students will only need to prove the required level of English language once to the Home Office and applicants who have met the maintenance requirement on their current route, and supported themselves in the UK for more than one year, will not need to met the maintenance requirement again under the Student route. The Home Office have also provided more flexibility around meeting the maintenance requirement e.g., relying on a wider range of accounts.
Visit visa and application process changes
Study of up to 6 months with an accredited institution will be permitted under the standard visit route. Note that those studying under the visitor rules will not benefit from allowances to switch to other immigration routes in the UK. Under the current system the Short Term Study route could be used for study of up to 6 months and allows for switching.
The limit for recreational study under the visitor route is being maintained at 30 days. Volunteering similarly will continue to be limited to 30 days, though it will no longer have to be ‘incidental’ to the main reason for the visit.
The Government plans for EU nationals to use a smartphone self-enrolment application form when applying for non-visit visas to the UK. Non-EU nationals will continue to have to enrol biometrics at visa application centres, at least initially.
Eventually, the Government plans to introduce Electronic Travel Authorisations (ETAs), similar to the US ESTAs, for applicants to apply for permission to travel in advance.
The British National (Overseas) visa
The new rules confirm that the British National (Overseas) (BN(O)) visa route will go live on 31 January 2021. Two types of visas comprise this route:
- The BN(O) Status Holder route is for BN(O) citizens ordinarily resident in Hong Kong or the UK, their partners and children. This is also the route for other dependent family members, but they would only be granted visas in exceptional circumstances.
- The BN(O) Household Member route is for adult children born after 1 July 1997 and who therefore do not hold BN(O) status themselves. Applicants under the BN(O) Household Member route must normally live with the BN(O) Status Holder.
BN(O) citizens and their dependants who are already in the UK with visas valid through January 2021 will be able to apply for the BN(O) visa from within the UK when this new visa route comes into force.
Applicants can apply for a 30-month visa or a five-year visa. We still do not know what the visa application fees will be.
The BN(O) visas afford the right to work and study in the UK and lead to settlement in the UK. Applicants must demonstrate that they can maintain and accommodate themselves. In line with the new cross-cutting maintenance requirements, applicants who have been resident in the UK for one year will be deemed to meet the maintenance requirement.
They Government has previously stated that applicants must demonstrate a commitment to learn English, but the new rules do not include an English language requirement until the settlement stage.
Applicants must have a certificate confirming they are free from TB if applying from a country on the relevant list in the immigration rules. They must not have serious criminal convictions.