The new immigration system arriving imminently – what to consider now

As of Thursday 22 October, we have more details on the new immigration system as the Home Office has now confirmed the content of the new Immigration Rules. With the Brexit transition period ending soon, and the new rules taking effect for non-EEA nationals from 1 December 2020, all employers need to be ready for the new immigration system.

Employers, employees and individuals need to consider how they can prepare now.  Brexit spells the end of freedom of movement for nationals of the EU, and a new system will apply to all non-British nationals in the UK, including EEA and Swiss nationals.  Employers need to start preparing for this change now, including understanding the proposed new rules, checking recruitment plans and budgets, obtaining or extending their sponsor licence and assisting staff with applications for work visas and the EU Settlement Scheme.

What’s changing?

EU workers
EU workers and their family members who are in the UK now need to ensure they have obtained the right to stay in the UK under the EU Settlement Scheme and have applied for  pre-settled or settled status.  Those in the UK now or arriving any time up to 31 December 2020 have until 30 June 2021 to apply under the EU Settlement Scheme. Those arriving after 31 December 2020 will be subject to the new rules.

In addition, EU nationals who will be relocating to the UK after 1 January 2021 will need to satisfy an English language requirement, something they have not had to consider previously.  This will apply to their family members also.  Remember that the new system imposes a mandatory obligation on any EU national, and any EU family member, who wishes to continue to live and work in the UK.

Non EU workers
Currently, non EU employees coming to work in the UK need to obtain a Certificate of Sponsorship (work permit) before they can apply to work in the UK. Employees, including those employed in partnerships and partners themselves, generally apply under Tier 2 of the current points based system to enable them to work in the UK as so-called sponsored skilled workers.

Under the new system, applicants will need to gain at least 70 points and demonstrate that they have a job offer from an approved and licensed sponsor, that the job is at the required skill level, and that they can speak English at the required level.- this in order to obtain a ‘skilled worker visa’. This is broadly similar to the present system. The scheme will open on 1 December 2020. 

Most importantly, skilled worker visas will apply to all non British nationals, including EU nationals.  From 1 January 2021 both EU and non EU citizens will be treated equally – until now, EU nationals have been able to live and work in the UK without specific permission to do so, under the freedom of movement provisions.  The ‘skilled worker visa’ to work in the UK looks very similar to the current Tier 2 visa issued to sponsored skilled workers, with a few key differences, including:

• The minimum salary threshold will be reduced from £30,000 to £25,600, or the ‘going rate’ of an occupation-specific threshold.  The applicant will need to meet whichever threshold is higher in order to qualify
• The minimum skills threshold will be reduced from degree level (RQF level 6) to RQF level 3 (A Level equivalent) – meaning that lower level and administrative level jobs may qualify in a way that they do not now
• The resident labour market test will be removed – there will no longer be a requirement to advertise a job to local workers before recruiting foreign nationals
• There will be a suspension on the cap of the number of skilled visas issued – currently the cap is set at around 21,000 visas per year: this will end. 

A few key changes coming in with the new skilled worker visa system include the following, affecting new hires and intra-company transferees:

• Intra-Company Transfer (ICT) visa holders will be able to switch from within the UK into the new Skilled Worker visa.
• Previously, Tier 2 ICT visa holders needed to leave the UK for 12 months (the ‘cooling off period’) and apply for a fresh entry visa, unless they were a high earner (earning over £159,600 per annum).  Tier 2 ICT Migrants are now permitted up to five years in the category in any six. 
• Current Dependant visa holders (family members) will now be able to switch from within the UK into the new Skilled Worker visa. Previously, Dependant visa holders needed to leave the UK and apply for an entry visa to return in this capacity
• Under the current rules, Tier 2 General visa holders have been able to stay in the UK for up to six years.  Under the new rules, the six year residence limit on Skilled Workers has been abolished, so there is no time limit on how long they can be issued for – they can now be extended indefinitely
• You can no longer take into account guaranteed annual allowances/benefits for the purposes of calculating the minimum salary for the Skilled Worker category (you can still do so for ICT provided they would also be paid to a local worker in similar circumstances). In effect, this means that only base salary will count towards the minimum salary requirements.
• Tier 5 visa holders – those here as temporary workers including interns or charity workers – will be able to switch into the new Skilled Worker route from within the UK. Previously Tier 5 visa holders needed to leave the UK and apply for fresh Entry Clearance (an entry visa).

Practical tips

In view of the changes, what do employers need to think about and how can they prepare now?

• Those employers without a sponsor license must consider whether they will need a license to expand or even continue their operations in the near future.  The Home Office are urging all employers, even those who do not currently employ or who have no plans to employ non British nationals, to obtain a sponsorship license.  The build-up of outstanding license applications means long processing times – employers need to allow 8-12 weeks as opposed to 2-4 weeks, even for straightforward applications, so applying as soon as possible is advisable [a priority service will be available from 12 November for a fee of £500]
• Employers with a sponsor license should take action to deal with the surge in EU national employees who must now be sponsored: this will involve budgeting for the additional visa costs, and training HR on the legal right to work implications, to ensure they have the employees they need and are fully compliant 
• Employers will need to continue performing right to work checks on all employees in the same way as they do now until 30 June 2021
• The system will continue to be expensive – employers will need to factor in visa fees, the Immigration Health Surcharge (which has now risen to £624 per person per year), the Immigration Skills Charge (between £364 and £1000 per person per year) , and fees for all dependents – the total payable per application is not insignificant
• Review whether a non sponsored working visa route may be suitable for current and potential employees  –  consider the Global Talent, Innovator or Start up visa routes which provide skill specific routes to live and work in the UK, while Youth Mobility and UK Ancestry visas are available for some individuals and may be applicable for eg, trainees and interns
• A new post study work route will open up in 2021 which will allow those who have been students to work for a UK employer for up to two years, without being sponsored by that employer.

Most importantly…

Act now!  These changes are coming in imminently, with applications for skilled workers opening on 1 December 2020. Employers need to focus on recruitment needs and assess what the business will require over the coming years, in order to ensure they have the personnel they need in place by the required time.  There is a clear vision of where the government intend to go in terms of immigration, and employers need to be prepared to survive any delays or confusion surrounding the implementation issues which are bound to arise between now and the new system’s arrival on 1 December 2020, and following the start of the new system, particularly as it applies to EU nationals, in January.

UK based businesses should upskill their HR teams on sponsor licence management and the requirements of the new system – it’s crucial to make sure  this is done so they are ready to go in, or ideally before, January 2021.  Employers need to stay ahead of the curve with changes and updates: immigration policies normally have at least two major updates per year, though the pace of change has significantly increased in recent years.  Significant adjustments will continue to be necessary as the post Brexit immigration system is established, and we anticipate frequent updates throughout 2021 and beyond.