Sponsoring Skilled Workers and Intra-Company Workers

This article was written by Immigration and Global Mobility Partner Samar Shams on 25 November 2020.

This article focusses on the changes to the sponsorship system. For a complete overview of the new sponsorship regime, please contact a member of the Spencer West immigration team to discuss our sponsorship services and training offering.

Sponsoring people to work will be important for more businesses going forward. EU nationals will need work visas and businesses will be able to sponsor workers for medium-skilled roles for the first time, and without posting job advertisements. 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, are effective from 1 December 2020.

We discuss sponsor compliance and using the Skilled Worker route to set up in business in the UK, then address changes to the Skilled Worker and Intra-Company Transfer routes, including:

• Point-scoring and eligibility requirements
• Salary requirements
• Assigning Certificates of Sponsorship

Sponsor licences

Employers must first apply for a sponsor licence in order to sponsor non-UK nationals to work. UK employers 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.

Under the sponsorship system, the Home Office relies on employers to assign work authorisations to non-UK nationals. The Home Office guards against abuse by requiring declarations from sponsor licence applicants and taking enforcement action for non-compliance with sponsor duties. Immigration Enforcement’s focus is increasingly shifting to sponsors.

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. Existing sponsors might wish to audit their HR systems and processes to ensure compliance.

The Skilled Worker route

Setting up in Business in the UK as a Skilled Worker

There are no restrictions on Skilled Workers holding shares in the business that is sponsoring them. This means that an overseas business owner who would like to expand to the UK can use this route to expand to the UK and eventually settle in the UK. Note that the sponsored worker’s role must not be created mainly to enable someone to come to the UK. Also, they will need a ‘settled worker’ in the UK to be an employee or company office-holder responsible for the sponsorship activities of the business.

Basic eligibility of the worker and the role

An applicant needs 70 points to be eligible for a Skilled Worker visa. They must earn 20 points for sponsorship, 20 points for meeting the skill level requirement and 10 for English language. The remaining 20 are earned from salary, having a PhD, the job being on the shortage occupation list or their being a ‘new entrant’ to the labour market.

Sponsors are not required to advertise vacancies before sponsoring Skilled Workers.

Businesses can fill medium-skilled roles with sponsored Skilled Workers. A role must be skilled to level 3 on the Regulated Qualifications Framework to be eligible for Skilled Worker sponsorship. Skill level 3 is generally equivalent to A-level. Medium skilled roles across many industries are eligible for sponsorship for the first time, including tech, creative, retail and construction roles.

An applicant must demonstrate that they are able to maintain and accommodate themselves, but only if they are applying from overseas or have been in the UK for less than one year on the date of application.

Applicants can switch to a Skilled Worker visa from most visas other than a Visit visa.

No ‘cooling off’ policy applies to Skilled Workers. Previously a ‘cooling off’ policy 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.

Salary

A Skilled Worker applicant must meet a general salary threshold, which can be £20,480 to £25,600 depending on their other characteristics. They must also meet a salary threshold relevant to the role for which they are being sponsored. Each role has a ‘going rate’ listed in the immigration rules. An applicant might only need to earn 70%, 80% or 90% of the going rate for their role, depending on their other characteristics.

Only guaranteed basic gross pay, before income tax and including employee pension and National Insurance contributions, counts toward salary requirements. Under the new rules, allowances do not count toward Skilled Workers’ salaries.

Part-time work is pro-rated and the pro-rated salaries must still satisfy the general and salary threshold and the going rate for the job, or the requisite percentage of the going rate.

The definition of ‘new entrant’ to the labour market has been expanded to include applicants whose last visa was a Student and that visa expired less than 2 years ago. Also included are those working towards professional qualifications. As under the predecessor Tier 2 General visa, those under 26 years old on the date of application are also considered new entrants.

This summary does not include information on the Health and Care visa or on transitional arrangements for Tier 2 General workers. Please contact us for advice on these points.

Intra-Company routes

The main Intra-Company route is the Intra-Company Transfer route which we summarise here. There is also an Intra-Company Graduate Trainee route for employees taking part in a structured graduate training programme who are being transferred to the UK, which we do not summarise here. Please contact us for details of the Intra-Company Graduate Trainee route.

Basic eligibility of the worker and the role

An Intra-Company Transfer applicant must score 60 points: 20 for sponsorship, 20 for skill level and 20 for salary.

The skill level for Intra-Company Transfer roles is maintained at Regulated Qualifications Framework 6, equivalent to graduate level. The general salary threshold for Intra-Company Transfers is maintained at £41,500. An Intra-Company Transfer applicant’s salary must also meet the going rate for their role, as listed in the Immigration Rules.

An applicant must meet also demonstrate that they are able to maintain and accommodate themselves, but only if they are applying from overseas or have been in the UK for less than one year on the date of application.

Applicants can switch to an Intra-Company Transfer visa from most visa categories other than the visitor. Intra-Company Transfer visa holders can switch to the Skilled Worker route, affording them an opportunity to settle in the UK.

A modified cooling off policy applies to Intra-Company Transfer applicants. The maximum period they will be able to stay in the UK is 5 years in any 6-year period. For those earning £73,900 or more, the limit is 9 years in any 10-year period.

Salary

An Intra-Company Transfer applicant can count allowances guaranteed for the duration of their employment in the UK, or paid as a mobility premium to cover the additional cost of living in the UK, toward meeting the general salary threshold of £41,500 and the going rate for their role.

Part-time work is pro-rated and the pro-rated salaries must still satisfy the general and salary threshold and the going rate for the job, or requisite percentage of the going rate.

Assigning a Certificate of Sponsorship

A Certificate of Sponsorship is the virtual work permit assigned to a non-UK national by a UK employer, authorising them to work in a particular role for which they are sponsored.

For Skilled Worker applicants from overseas, a sponsor must request allocation of a ‘defined’ Certificate of Sponsorship from UK Visas and Immigration. The sponsor must request allocation of a defined COS as and when they require one. This is similar to the previous system for requesting ‘restricted’ Certificates of Sponsorship. However, UK Visas and Immigration have said that they will decide requests for allocation of defined certificates which are straightforward and do not require further information within one day. There is currently no limit, annual or otherwise, on the number of defined Certificates of Sponsorship available to UK employers.

A certificate of sponsorship for a Skilled Worker must confirm how an applicant’s PhD is relevant for the job, if they are claiming points for a PhD. All certificates of sponsorship have to include the PAYE scheme reference number through which the worker will be paid or an explanation of why they will not be paid through PAYE.

The £199 fee that a sponsor usually pays when assigning a Certificate of Sponsorship does not apply if the worker is a citizen of a country which has ratified the European Social Charter. This exemption applies to Certificates of Sponsorship for both the Skilled Worker and Intra-Company Workers. 27 European countries have ratified the European Social Charter, e.g. France, Germany, the Netherlands, Belgium and Turkey.

As with the predecessor Tier 2 route, you must not assign a Certificate of Sponsorship to a worker for a role in which they will be working for a third party in an ongoing, routine role or providing an ongoing, routine service to the third party.

The new sponsorship regime offers exciting opportunities. It touches many more sectors, businesses, roles and workers than ever before. Please get in touch if you would like to discuss how to best use the new sponsorship regime to support your organisation.