United Kingdom Introduces Changes to Right-to-Work Scheme and Revamps Immigration Rules

Starting from 6 April 2022, Biometric Residence Card (BRC), Biometric Residence Permit (BRP), and Frontier Worker Permit (FWP) holders in the United Kingdom will evidence their right to work by using the Home Office online service.

As a result, from 6 April, employers will no longer be able to accept or check a physical BRP, BRC, or FWP as valid proof of right to work, even if the document shows a later expiration date.

Employers will not need to retrospectively check the status of BRC or BRP holders who were employed up to and including 5 April. Employers will maintain a statutory excuse against any civil penalty if the initial checks were undertaken in line with the guidance that applied at the time the check was made.

What Are Right-to-Work Checks?

Before entering into employment, employers must check that all job applicants have lawful immigration status in the United Kingdom to avoid being liable for a civil penalty.

There are two types of right to work checks: a manual check and an online check. The type of check an employer is required to conduct will depend on the status of the job applicant.

From 6 April, an online right to work check is required for all BRC, BRP, and FWP holders, as well as individuals who hold only digital proof of their immigration status in the United Kingdom.

To carry out an online right to work check, employers will need the applicant’s date of birth and an online-generated share code, which the applicant will need to provide. The government’s guidance, ‘An employer’s guide to right to work checks: 17 January 2022’, provides further information for employers on how to use the online services.

The government’s guidance, ‘View a job applicant’s right to work details’, provides details on how to complete the online right to work check.

Home Office Revamps Immigration Rules in Statement of Changes

The Home Office has published its most recent Statement of Changes to the Immigration Rules (HC 1118). The changes, which include new immigration routes, as well as some changes and rebranding for existing routes, are being phased in over the next few months, beginning on 6 April 2022.

UK immigration rules are often changed several times a year, via a Statement of Changes, which lists the amendments that will be incorporated into updated immigration rules on the specified implementation dates. The new routes announced in the Statement of Changes build upon the UK government’s ‘New Plan for Immigration’, published on 24 May 2021, in which the government set out its intention to introduce bespoke immigration routes which will ultimately contribute to UK economic growth.

Below is a summary of the most relevant details of the Statement of Changes.

Global Business Mobility Route

The Global Business Mobility route is a new category for overseas businesses that wish to establish a presence in or transfer staff to the United Kingdom for specific business purposes. The route consists of five subcategories, which combine existing provisions. No category within the Global Business Mobility route will lead to settlement; instead, the route focuses only on applicants who are coming to the United Kingdom on temporary assignments. Family members will be permitted to apply as dependants and there is no limit on the number of applications. This route will be open to new applicants on 11 April 2022.

• Senior or Specialist Worker

This route will replace the Intra-Company Transfer visa, which will close on 11 April 2022 and is intended for senior managers or specialist employees who are assigned to a UK business linked to their employer overseas.

There is still no English language requirement; however, the role must meet the required skill level. The minimum general annual salary threshold will increase from £41,500 GBP to £42,400 GBP and applicants are still required to have worked for the overseas entity for at least twelve months, unless a worker is a high earner. Applicants who earn an annual salary of £73,900 GBP or more will not need to meet the twelve-month previous employment requirement.

• Graduate Trainee

This route is a rebranding of the Intra-Company Graduate Trainee visa, which will close on 11 April 2022. It is intended for applicants who are currently on a graduate training course that may ultimately lead to senior management or a specialist position and who are required to do a work placement in the United Kingdom.

The minimum general salary threshold will increase from £23,000 GBP to £23,100 GBP per year.

• UK Expansion Worker

This route will replace the Representative of an Overseas Business route, which will close on 11 April 2022. It is intended for senior managers or specialist employees who are being assigned to the United Kingdom to undertake work relating to a business’s expansion to the United Kingdom. As of 11 April, it will no longer be possible to make an initial application under the Representative of an Overseas Business route. This route will also no longer lead to settlement in the United Kingdom.

Permission will be granted for an initial twelve-month stay in the United Kingdom with the opportunity to extend the visa for up to two years in total. Applicants will require sponsorship from a business in the United Kingdom that has a sponsor licence; however, the business must not have started trading yet. (The Statement of Changes advises that if a business has begun trading, ‘workers should apply under Appendix Global Business Mobility – Senior or Specialist Worker instead.’) The business must also be a subsidiary of an overseas business, which is expanding in the United Kingdom.

The applicant’s salary must meet the market rate requirement or the general salary threshold of £42,400 GBP per year (whichever is higher). The applicant must also have been working for the overseas business for at least twelve months, unless he or she is a high earner, or is a Japanese national coming to the United Kingdom under requirements set by the UK-Japan Comprehensive Economic Partnership Agreement.

• Service Supplier

This route will replace the existing Appendix Temporary Work – International Agreement route, which will close on 11 April 2022. It is intended for overseas workers who are undertaking temporary work assignments in the United Kingdom. The worker must either be a contractual service supplier employed by an overseas service provider, or a self-employed independent professional based overseas, and must undertake an assignment in the United Kingdom to provide services covered by one of the United Kingdom’s international trade commitments.

The sponsor must be authorised by the Home Office to sponsor a Service Supplier and must have a contract with an overseas service provider, where that contract has been registered with the Home Office, and on which an applicant as a Service Supplier will work. The requirement under the existing rules is that the contract must be preapproved, but the Statement of Changes only confirms that the contract has to be ‘registered’. Upcoming guidance that is due to be released soon should provide further details surrounding the Service Supplier route.

Under the current International Agreement route, applicants are allowed to stay in the United Kingdom for up to twelve months. However, under the new route, individuals on the Service Supplier route will be able to come to the United Kingdom for a maximum of five years in a six-year period. The applicant must either be sponsored for a job in an occupation code listed in Appendix Skilled Occupations that is identified as eligible for the Global Business Mobility routes, or the applicant must have a university degree or equivalent level technical qualification.

• Secondment Worker

The Secondment Worker route is a new addition that will allow individuals to undertake temporary work assignments where they are ‘being seconded to the UK as part of a high value contract or investment by their employer overseas’.

Applicants will require sponsorship from a business in the United Kingdom that already has a sponsor licence and the applicant must have twelve months of prior service with the overseas business. In addition, the contract between the UK company and the overseas business must be registered with the Home Office.

Under the current system, similar arrangements are usually covered by the visitor visa provisions. However, this category will eliminate any uncertainty of qualifying as a visitor and will enable individuals to come to the United Kingdom for up to five years with their family members.

Further details surrounding the definition of a high-value contract or investment is expected in the forthcoming guidance.

High-Potential Individual (‘HPI’) Route

The HPI route will open on 30 May 2022 and is designed for overseas recent graduates of ‘top global universities’ (defined as an institution listed as ‘top 50’ on at least two of the three ranking systems prescribed in the guidance). Applicants must have successfully completed an eligible course of study equivalent to a United Kingdom bachelor’s degree level or above outside the United Kingdom in the last five years.

The route will enable applicants to come to the United Kingdom without requiring sponsorship from a company and there will also be no job offer requirement.

This route will not lead to settlement in the United Kingdom and permission will be granted for only two years for those who hold a bachelor’s or master’s degree. However, applicants who hold a qualification equivalent to a PhD can be granted leave for three years. HPI route applicants will be permitted to work in the United Kingdom and are able to bring their dependent family members with them.

Scale-up Visa

This route will open on 22 August 2022 and is intended for individuals recruited by a UK Scale-up Sponsor who ‘have a high-skilled job offer from a qualifying Scale-up business at the required salary level’. The salary for the prospective job ‘must equal or exceed’ the going rate for the individual’s specific role, £10.58 GBP per hour, and £33,000 GBP per year. There will also be an English language requirement.

Unlike other sponsored routes, the Scale-up route will only require individuals to be sponsored for the initial six months on the route; they will then be able to work for the next eighteen months without sponsorship. To extend and apply for settlement, applicants will need to meet the minimum salary requirement and prove that they are employed in a graduate level occupation. This route can lead to settlement after a minimum period of five years of continuous employment in the United Kingdom and dependent family members will be able to join.

A fast-track verification process is available to Scale-up companies that can demonstrate an annual average revenue or employment growth rate over a three-year period greater than 20 percent, and a minimum of ten employees at the start of the three-year period.

Ruhul K. Ayazi is of counsel in the London office of Ogletree Deakins.

Carrie-Ann Hosker is an Immigration Manager in the London office of Ogletree Deakins.