In July the Government has released further details of the new immigration schemes that will open from 1 January 2021 when free movement ends with the EU. The 130-page document outlines the draft requirements for the main work and study routes to the UK. The new immigration architecture will be endorsed by Parliament later in the year.
With just four months to go until the end of the transition period, it is imperative for employers to understand how the new immigration rules and legal right to work compliance requirements will impact employment decisions and HR strategy.
The new scheme will apply to EU and non-EU migrants alike, creating a level playing field, and will include a Skilled Worker route based on an applicant’s experience, education, and salary. New visa categories will also be introduced, as well as a relaxation of requirements for many existing immigration routes.
Skilled Worker Category
The main route for both EU and non-EU workers from 1 January 2021 will be the Skilled Worker route, which replaces the current Tier 2 General route. Workers will have to demonstrate that they meet a specific set of requirements for which they will score points. A worker in this route must earn a minimum salary of £20,480 – although this is subject to additional salary requirements based on their role, education, and experience.
Applicants will be required to meet mandatory criteria in order to earn 50 points for the application. They can obtain these mandatory points by having an offer of a job by an approved sponsor, a job offer at an appropriate skill level, and English language skills at intermediate level. A migrant must then obtain a further 20 “tradeable” points through a combination of points for their salary, a job in a shortage occupation or a relevant PhD – totalling 70 points for the application.
“New entrants” to the UK labour market already benefit from a reduced salary threshold for three years, and this benefit will continue in the new system. A new entrant under the Skilled Worker scheme will continue to include those switching from the Student or Graduate route to the Skilled Worker route, those under the age of 26, as well as those working towards recognised professional qualifications or moving directly into postdoctoral positions.
There are some significant changes contained within the announcement, including the welcome abolition of the Resident Labour Market test for Skilled Workers. This means that from 1 January 2021, employers will no longer need to advertise the role to prove that it is a genuine vacancy. Furthermore, the cap on the number of workers that can apply for this route has also been scrapped. This is good news for employers who may previously have faced difficulty sponsoring Tier 2 Migrants with lower salaries. This should contribute to a more streamlined system of application, with fewer hurdles to overcome in the process.
Intra-Company Transfer Category
There will be a new Intra-Company Transfers route. This new route is similar in its form to the current Tier 2 ICT route, allowing employers to move their workers across subsidiary branches worldwide. The existing “cooling off” rules, which prevented Tier 2 ICT migrants from returning to the UK for 12 months after their role ended in the UK, will be adjusted to allow overseas ICT workers to work in the UK for up to 5-years in any six-year period, or nine years where they meet the high-earner salary threshold. This will be a welcome change for employers and employees who use the intra-company transfer route as it creates more flexibility for short-term assignments.
Can a migrant switch immigration categories within the UK?
The new system will allow most migrants to apply to switch from one visa category to another without having to leave the UK. This is great news for migrants who want to switch into a Skilled Worker visa without leaving the country – a process that is not currently permitted. From January 2021, a migrant will be able to switch from the Intra-Company transfer route into the Skilled Worker route. This will mean a much easier application process for workers and a reduced burden of time and costs of travel to the migrant’s home country. There will still be no right to switch from a short term visa category (such as a visitor or seasonal worker route).
What happens to existing sponsor licences?
Existing Tier 2 (General) and Tier 2 (Intra-Company Transfer) sponsors will automatically be granted a new Skilled Worker licence or Intra-Company Transfer licence, with an expiry date consistent with their current licence. Employers will not need to apply for another sponsor licence to sponsor an employee under the new system. Sponsors will also receive an appropriate allocation of Certificates of Sponsorship (CoS). No details about what the Home Office will consider “appropriate” has been provided.
Businesses that do not already have a sponsor licence are advised to apply early so as to be ready to sponsor EU and non-EU workers in January.
New visa routes
The system also includes the introduction of several new visa routes, including a skilled worker – Health and Care visa for workers in eligible health occupations with a job offer from the NHS, social care sector or employers and organisations which provide services to the NHS. There are also new routes for migrants working in the creative sector or for a registered UK charity for up to 12 months.
EU nationals will also be able to apply for the Global Talent and Start Up and Innovator visa routes that are already in place for non-EU nationals.
Changes beyond January 2021
There are several new visa categories that will not be ready from January 2021.
The Highly Skilled Worker category will not open on 1 January 2021, but will eventually be a broader unsponsored route within the new system to run alongside the employer-led system. This will allow a smaller number of the most highly skilled workers to come to the UK without a job offer. The Home Office is currently exploring proposals for the route from stakeholders. Indications are that this route would be capped and monitored during an implementation phase.
The Government has also introduced a new Graduate route that will be launched in summer 2021 to provide international students the opportunity to stay in the UK to work or look for work after they graduate. Undergraduate and master’s degree students will be able to stay for two years under the route, whilst PhD students will be able to stay for three years. Graduates will be able to switch into other routes in line with the wider approach to switching when applying for leave inside the UK.
In addition, the Government will be extending the period of time in which a student can apply for permission to come to the UK before the start of their course, from three to six months. They will also be removing the study time limit for students studying at a postgraduate level, although students will still be expected to be progressing academically in their studies when making an application to extend stay in the UK.
What else does this mean for EU Citizens?
Employers who sponsor EU citizens will now be subject to paying the Immigration Skills Charge and the Immigration Health Surcharge, although the Government is working to exempt frontline workers in the NHS, social care sector, and wider health workers from the fee.
The visa application process for non-EU citizens currently involves attending a Visa Application Centre and providing biometrics, which includes a scan of the migrant’s face and fingerprints. In the new system, most EU citizens will not need to attend a Centre to enrol their biometrics and will instead provide facial images using a smartphone self-enrolment application form. This is similar to the application process for the EU Settlement that presently exists.
The new system introduces flexibilities that should be well received by employers and employees alike. The end of free movement will mean a tougher process for EU migrants who want to work in the UK, but it seems it will not be as stringent as the system that has previously existed for non-EU nationals. Smaller businesses, particularly those who have not been required to navigate the schemes in the past, may struggle to work with the new arrangements.
The abolition of the cap on skilled workers and the scrapping of the resident labour market test should make for a more streamlined and quicker application system. Combined with the increased flexibility for switching visa categories within the UK, businesses will be able to hire new EU and non-EU employees more quickly and with less expense. The salary requirements for skilled workers have been relaxed and there are more generous routes for graduates from UK universities to seek employment following their courses.
In the current context, the new Health and Care route for skilled workers is welcome following the contribution of migrant workers to the NHS during the COVID-19 pandemic.
We will be waiting for the details regarding the Highly Skilled Migrant route, which will further encourage talent to come to the UK and provide flexibility for these workers.