Immigration developments for 2022

Introduction

The past few years have seen upheaval in the immigration space. The UK’s departure from the EU in particular prompted major changes, including the Skilled Worker sponsorship system which took effect at the end of 2020, and the Frontier Worker Permit scheme for EU nationals remaining in employment (but not residence) in the UK.

2021 saw major changes too: the Graduate route was introduced; Global Talent visas for leaders or potential leaders to work in the arts, sciences or digital technology have continued to be tweaked and expanded; and the deadline for EU Settlement Scheme applications came and went during the year.

2022: The year ahead

2022 is also shaping up to be a year of big changes in business immigration, particularly during the first half of the year. 

The Home Office has committed to introducing the new visa categories for self-employed individuals, a key advantage of which for businesses is that migrants will not need to be sponsored, which removes the administrative process and costs associated with sponsorship. The introduction of new routes is slated for Spring 2022 including:

• Global Business Mobility
• Scale-up visa
• High Potential Individual

These will involve the introduction of new visa categories and the amalgamation or amendment to some existing offerings. In this article we’ll look in more detail at the proposed new routes and what changes we can expect, as well as the potential benefits for employers and business people alike.

Whether these new visa routes will help alleviate the recruitment challenges many businesses are facing remains to be seen. What is clear, is that the government is intent on making it easier for elite workers to obtain visas for the UK, but is resolute in not offering a long-term solution for companies who need to recruit lower skilled workers. Whether this will lead to further policy row backs and more new visa types later this year remains to be seen.

Analysis of the new and existing visa routes

The Global Business Mobility route

The idea behind this new route is to give global businesses more options to send their staff to the UK. It is intended to operate under the current sponsorship system and incorporate and reform existing provisions and categories of the Immigration Rules, including intra-company transferees, intra-company graduate trainees, representatives of overseas businesses, and certain visitors.

One major change with the new route that employers should be aware of is that intra-company transferees will be allowed to settle and apply for permanent residence in the UK. That is not currently the case, as intra-company transferees are unable to apply to remain in the UK indefinitely.

As such, employees will be transferring under the intra-company transfer route, so there is no need to meet an English language requirement, even where the employee intends eventually to settle in the UK permanently. These loosened requirements will give employers more flexibility to transfer a group employee quickly and avoid any business interruption.

The sole representative of an overseas business route will also be amended under the Global Business Mobility visa route. Currently, overseas businesses are able to send one member of staff to the UK to set up a branch or subsidiary here. As such, it can take some time to establish a viable UK business.

However, global businesses will soon be able to set themselves up in the UK much more quickly. The Global Mobility route will permit a team of up to five employees to set up business in the UK, rather than just one.

More detail on how the Global Business Mobility route will operate in practice is expected in the coming weeks.  

The Scale-up visa

This will be an unsponsored route. That means that an individual will not need to have a job offer from a licensed UK sponsor to apply and qualify for this route.  It is intended to enable highly skilled and academically elite individuals to move to the UK to work at a recognised UK scale-up business. Applicants who successfully use this route to work in the UK will also be able to apply for and obtain UK settlement.

The idea behind this route is to provide some SMEs with streamlined access to skilled workers in order to assist with the rapid expansion phase of their development.

Eligibility criteria for this route will include:

1. The requirement to have a job offer from an approved scale-up business which can demonstrate to the Home Office an annual average revenue growth or employment growth of at least 20% over a three-year period; and
2. A minimum of 10 employees within the business at the beginning of that three-year period.

Successful applicants must also:

1. Meet the minimum salary requirement of salary of at least £33,000 per annum; and
2. Meet an English language proficiency requirement.

High Potential Individual route

This new route is currently the option with the least information available. However, the UK Innovation Strategy document released by the government in July 2021 summarised the route as follows:

As part of our plan for growth, the UK government will introduce a new High Potential Individual route to make it as simple as possible for internationally mobile individuals who demonstrate high potential to come to the UK. Eligibility will be open to applicants who have graduated from a top global university. The UK government will explore the scope to expand eligibility to other characteristics of high potential. There will be no job offer requirement, giving individuals the flexibility to work, switch jobs or employers and make contributions to the UK economy. The route will also allow eligible individuals to extend their visa and settle in the UK, subject to meeting specific requirements.

The route is intended to make it as simple as possible for international talent who demonstrate high potential to come to the UK, though much remains unclear. What will be regarded as a “top global university” remains to be seen for example.

This will be an unsponsored route, so applicants will not require a job offer and will be able to switch jobs and employers, offering maximum flexibility to those who believe their career will benefit from time in the UK. This will cut costs and bureaucracy and make it easier for applicants to secure work-based visas without the immediate support of an employer.

Further guidance is expected in due course, which will hopefully shed more light on the eligibility criteria which must be satisfied to take advantage of this route.

Amendments to the Innovator visa

The current Innovator visa option will also be revitalised this year, to introduce greater flexibility and streamline eligibility criteria, with the aim of making it a little more accessible and user-friendly. 

This visa is meant for those who wish to set up and run an innovative business in the UK. The business has to be something that is different from anything else currently operating in the market. As such, the business or idea must be endorsed by an approved body (the ‘endorsing body’), and an applicant is currently expected to have a minimum of £50,000 to invest in their business, as well as playing a key role in its management and development. 

The visa option also includes an English language requirement, and applicants will be able to apply to settle in the UK following five years spent here in this capacity.

The government set out the following changes to the visa in the UK Innovation Strategy document:

1. The business eligibility criteria will be simplified – applicants are required to demonstrate that their business venture has a high potential to grow and add value to the UK and is innovative.
2. A lighter touch endorsement process will be introduced for applicants whose business ideas are particularly advanced.
3. International offers, with all applicants accepted on the Department for International Trade’s Global Entrepreneur Programme, being automatically eligible.
4. There will no longer be a requirement to have at least £50,000 in investment funds where the endorsing body is satisfied that the applicant has sufficient funds to grow their business.
5. The restriction on doing work outside of the applicant’s primary business will be removed.

What else can we expect in 2022?

The Home Office has committed to several technology changes, in order to update the sponsorship process. The visa appointment system will also improve by offering a greater number of appointments, including free appointments. The ID app, which allows applicants to complete the identity verification stage of their applications (thereby streamlining and speeding up the process) will be also available more widely, including by in country applicants.

Other practical developments within immigration law that we expect to see over the course of this year include the following:

Right to work checks for biometric card holders from 6 April 2022

From 6 April 2022, right to work checks are changing and employers will no longer be permitted to conduct manual checks on certain individuals. In particular, they will no longer be able to carry out a manual right to work check on those who hold a biometric residence permit, biometric residence card or a frontier worker permit (biometric card holders).

Employers must carry out an online right to work check (using a specific gov.uk portal and share code process) for all checks undertaken from this date onwards, to establish a statutory excuse/defence if accused of illegal working or found to be in breach of the regulations.   

We recommend that employers update any internal right to work guidance notes and checklists to ensure those responsible for such checks understand the change and the date on which it will take effect.

It is worth noting that despite the upcoming change from manual to online checks, there is no need to carry out a further check in relation to employees who have previously shown a biometric residence permit, biometric residence card, or a frontier worker permit to prove their right to work.

Provided the relevant guidance was complied with at the time of the check, then employers will still be able to rely on the statutory excuse.

Identification Document Validation Technology (IDVT)

The Home Office has recently announced that for anyone outside the scope of the online right to work system, such as British and Irish citizens, employers will be able to use certified IDVT to carry out digital identity checks on new employees. This change, which is likely to come into force in April 2022, continues the direction of travel by the Home Office towards the digitalisation of the right to work process.

IDVT technology establishes the authenticity of documents such as passports and biometric residence permits for identity verification purposes. It will not be mandatory for employers to use IDVT as manual checks of physical documents, together with checking the status of biometric permits online, will remain permissible.

However, if employers do intend to use IDVT technology then the following will apply:

1. Employers will only be able to use a certified IDTV provider in order to establish a statutory excuse where the check has been carried out on one or more of the acceptable documents, including valid British passports, valid Irish passports and Irish passport cards.
2. The cost of the use of IDVT services will be borne by the employer and it is envisaged this may vary widely, possibly up to a fee of £70 per check.
3. IDVT will not be suitable for all right to work check documents, and in those circumstances an in-person check will need to be made.

Due to the potential significant repercussions of getting it wrong, it is vital that employers ensure their managers are fully trained on the new rules and that they continue to check guidance from the Home Office (UK Visas and immigration) on this subject on a regular basis.

Steps should be taken now to ensure that on-boarding processes are compliant.  Additional information continues to be released and thus employers must ensure they are familiar with the necessary requirements so as to stay on the right side of immigration law.

Contact us

If you have any questions about these issues in relation to your own organisation, please contact a member of the team or speak with your usual Fox Williams contact.