Upcoming Changes to the UK Immigration System: Further Details for Employers

On 13 July 2020, the UK Home Office published further details on the UK’s points-based system through a detailed policy statement regarding the changes to the UK immigration system due to come into effect from 1 January 2021, once freedom of movement with the European Union has ended. The document builds on the policy statement published in February 2020 and aims to provide “more detail to applicants, employers and educational institutions on the draft requirements and conditions underpinning the key immigration routes in the Points-Based System.”

The policy statement is intended to allow time to prepare ahead of some of the new immigration routes scheduled to open later this year. The policy statement pointed out that for EU citizens, from January 2021, it “is worth noting that beyond the main work and study route, most of the immigration routes will have the same requirements as they do now for non-EU citizens.” The main difference is that EU citizens will now be subject to the same requirements as non-EU citizens and will need to obtain visas for all activities other than short-term visits. The Home Office intends the implementation of the points-based system to be phased in with further details expected later in the year. Non-EU citizens wishing to come to the UK before 1 January 2021 will continue to apply as they currently do. EU citizens will still be able to exercise their rights under the terms of the transition arrangements that allow for continuation of freedom of movement; if they arrive prior to 31 December 2020, EU citizens and any relevant family members will be eligible to apply through the EU Settlement Scheme until 30 June 2021.

The statement provides a summary of the planned reforms to the most commonly used work, business, study, and visit routes, ahead of further guidance to be published in the autumn of 2020. We have outlined the key policy points for specific immigration categories and arrangements below.

Skilled workers

This route will replace Tier 2 (General).

The new statement reconfirms the eligibility criteria originally set out in the policy statement published in February 2020. However, it also confirms that certain health and education jobs must only meet the relevant national pay scale for their occupation, and that “new entrants” beginning their careers may be paid 30 percent less than the experienced worker rate for their occupations. In both cases, the worker must be paid a minimum of £20,480.

The definition of “new entrant” will include people switching from the student or graduate route to the skilled worker route, those who are under the age of 26 on the date of application, and those who are working toward a recognised professional qualification or who are moving directly into a postdoctoral position.

Applicants will be eligible to claim Ph.D.-tradeable points only for listed occupations, which are set out in Annex B to the statement and cover high-level managerial positions, professional occupations, and occupations where having a Ph.D.-level science, technology, engineering, and mathematics (STEM) research position or technical knowledge puts the applicant at an advantage. Sponsors may want to consider how to determine whether an applicant’s Ph.D. is relevant to the sponsored role, and whether a particular Ph.D. is a STEM Ph.D. If the assessment is deemed not to be credible, the Home Office can refuse the application.

The policy statement also states that the Home Office may widen the “tradeable” points criteria for this route if the UK’s economy requires it.

Below is a table that sets out the points table for the skilled worker route, as set forth in the UK’s Points-Based Immigration System policy statement of July 2020.

Annex E in the statement includes a comprehensive list of both eligible and ineligible occupations and going rates. It is not yet known which occupations will be considered to be shortage occupations, as the Migration Advisory Committee (MAC) is not due to report to the UK Government on this until September 2020.

Highly skilled workers

A highly skilled worker route is confirmed in the new policy statement, but details are yet to be finalised and this route will not be available until after the new system has launched next year. The Home Office does mention that this route would be unsponsored and would have an annual cap on numbers.

Skilled workers: Health and Care Visa

The previously announced NHS visa has been renamed the “Health and Care Visa” and will fall within the skilled worker route. There will be a fast-track entry, with reduced application fees and support regarding the application process for individuals working in eligible health occupations with a job offer from the NHS, social care sector, or employers and organisations that provide services to the NHS. Those eligible for the Health and Care Visa will also be exempt from having to pay the Immigration Health Surcharge (IHS).

The policy statement also confirms that frontline workers in the health and social care sector who are not eligible for the new Health and Care Visa will be required to pay the IHS; however, they will be able to access a reimbursement scheme. Further details surrounding this will be published at a later date.

Intra-company transfer

The Tier 2 (intra-company transfer) visa will be rebranded under two categories, one for intra-company transfers and another for intra-company graduate trainees. This is similar to the current system, where it was always possible to apply as long-term staff or graduate trainee.

The eligibility criteria for these visas will remain broadly in line with what they are currently. The skill level required for sponsorship under these two categories will remain at RQF level 6 and both routes will not lead to settlement. The minimum salary thresholds will continue to be different from the skilled worker route; however, whether these will stay at the current level of £41,500 (£23,000 for graduate trainees) is not currently confirmed.

An important change to note is that individuals will be allowed to switch from these categories into the skilled worker route from within the UK. The cooling-off provisions will also be made more flexible by stipulating that an intra-company transferee can only have entry clearance or leave to enter in this capacity for a maximum of five years in any six-year period, except where the transferee is allowed to be granted up to nine years on the basis of the transferee’s salary.

Graduate route

The policy statement includes a new graduate route that is due to be implemented from summer 2021 and which will allow undergraduate and master’s degree students to be granted two years leave under this route and Ph.D. graduates three years leave. It also confirms the route will not have a maintenance or English-language requirement; however, the IHS will be payable.

The graduate route will be an unsponsored route, though it will be points-based and all successful applicants will be granted a one-time nonextendable leave period of either two or three years depending on degree type. On this route, individuals will be able to work, or look for work, at any skill level during this period.

Youth mobility scheme

The UK currently has eight Youth Mobility Scheme (YMS) arrangements with the following countries:

• Australia;
• Canada;
• Japan;
• Monaco;
• New Zealand;
• Hong Kong;
• Republic of Korea; and
• Taiwan.

The YMS is a temporary route that allows young people from participating countries to experience life in the UK and enables them to work and travel for up to two years. According to the policy statement, the “YMS is a reciprocal scheme, with its terms negotiated and agreed between the two countries,” which enables young British citizens to experience similar opportunities overseas.

Other work routes

The policy statement refers to new categories that currently exist under Tiers 2 and 5, which include:

• Creative;
• Charity;
• Ministers of religion (settlement route);
• Religious workers (temporary work route that does not lead to settlement);
• Government Authorised Exchange—the Home Office may consider consolidating the currently recognised schemes under the new system; and
• International agreement—this route will be reviewed and clarified.

Sponsorship

The policy statement confirms that “[e]xisting Tier 2 (General) and Tier 2 (Intra-Company Transfer) sponsors will automatically be granted a new Skilled Worker or Intra-Company Transfer licence ….” The expiry date of any new licence will be the same date as the current licence and sponsors will also be given an allocation of certificates of sponsorship.

There will be no cap on sponsoring workers under the skilled worker route and no requirement for sponsors to complete labour market testing before sponsoring a migrant worker.

Employers that do not currently hold a sponsor licence, or that do not hold one in all of the categories they anticipate needing to use under the new system, may wish to make their relevant sponsor licence applications as soon as possible if they anticipate needing to sponsor European Economic Area (EEA) or Swiss nationals from the beginning of 2021.

Visitors

Visitors can (in most cases) come to the UK for up to six months and this will continue to be the position after the end of the transition period. A visitor can enter the UK multiple times during that time, but they may not live in the UK and cannot work and/or access public funds. Under the current rules, standard visitors are also not able to study for more than 30 days under specified circumstances.

The Home Office will allow short-term study under the standard visitor route. Visitors using this route will be allowed to study a non-recreational course at an accredited institution for up to six months. Recreational courses that last no longer than 30 days and do not lead to any formal qualifications will not need to be completed at accredited institutions.

The Home Office also intends to keep the 6- to 11-month short-term English-language study route open, which is specifically for people taking English-language courses.

Operational arrangements

The policy statement makes the following general points about future operational arrangements:

• In-country switching from one route to another will be allowed in most cases, except where the migrant has entered the UK in a short-term route such as a visitor or seasonal worker.
• “From 1 January 2021, most EU citizens will not need to attend a Visa Application Centre (VAC) to enroll their biometrics and will instead provide facial images using a smartphone self-enrolment application form.”
• Regarding biometric requirements, the policy statement clarifies that the Government’s “long-term aim is that all visitors and migrants to the UK will provide their biometric facial images and fingerprints under a single global immigration system,” with a goal of doing so through self-enrolment.
• Application fees and the immigration skills charge will initially remain unchanged.
• The IHS will remain in place, although it is set to increase from 1 October 2020. Exemptions due to be published will exempt frontline NHS, social care, and wider health workers.
• EU citizens will no longer be able to use their national ID cards to enter the UK during 2021 and will be required to use their passports instead. Further announcements in relation to this are expected in due course.

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

Carrie-Ann Hopkins is a paralegal in the London office of Ogletree Deakins.