On 22 October 2020 new Immigration Rules were published which will fundamentally change how UK business recruits and retains migrant talent. Here we look at 10 key things to know about these changes, and how they may affect individuals and employers:
1. Names are changing: Much has been made of the move towards an 'Australian-style Points Based system', so it can come as a surprise to learn that UK already operates a Points Based System to control economic migration. Under the current system, categories of migration are split into different tiers; Tier 1 applying to those who are high net worth or especially highly skilled, Tier 2 for sponsored workers including ministers of religion and sportspersons, Tier 3 for lower skilled positions (this tier has never been used), Tier 4 for sponsored students, and Tier 5 for temporary workers, such as those on youth mobility schemes.While those categories of migrant will remain, significant rebranding will see the UK abandon the use of the tier system and move towards more straightforward naming conventions; Tier 2 General (the current named for sponsored skilled workers) becomes Skilled Worker for example, and Tier 4 has already been decommissioned in favour of the plain Student route. In time, the rules will be consolidated under these new titles, but for now they remain messy, with numerous appendices and guidance documents. If you will be applying from 2021, you may find that your planned route has disappeared, but chances are it has simply been moved to an alternative location and/or renamed.
2. 01 December 2020 is the key date: Most changes impacting economic migration will come into force on this date, meaning that the new Skilled Worker route will exist for a month before the end of the Brexit transition period. This will hopefully allow businesses an opportunity to familiarise themselves with the new system before it needs to be used, and they can sponsor non-EU workers under the fresh routes as soon as they open. For EU migrants, it is worth remembering that those entering the UK for the purpose of economic activity may do so freely before 11pm on 31 December 2020, without the need for sponsorship. Existing sponsors in the UK will retain their licences, automatically being switched to the new scheme. Employers without a licence but who may need one from 2021 are strongly encouraged to use this time to apply and become familiar with the requirements and duties of a sponsor.
3. Skill level requirement drops: As has been heavily publicised, the new Skilled Worker route allows for sponsorship of workers whose position is RQF level 3 or above. This is usually equivalent to an A-level school-leaver position, and it is a lot lower than the current threshold of RQF 6, which are broadly graduate roles. However, even reducing the RQF to level 3 does not cover all positions which can be difficult to recruit for in the UK; this includes home carers, prison officers, and some roles in the road and rail construction industries, for example. Hospitality is a sector which may be heavily impacted; losing a recruitment pool of EU migrants as a result of Brexit and finding that the skill level for sponsorship cannot allow those people to be employed under the new scheme.
4. The income requirement may still be a barrier to sponsorship: While the minimum income requirement for an experienced worker is being reduced from £30,000 to £25,600 per year (or the 'going rate' for a specific role, whichever is higher), this may not assist all employers to fill their vacancies. The lowering of the skill level to RQF 3 introduces many more potential roles to the sponsorship scheme, and a lot of those will have going rates which are way below the £25,600 required. An example is senior care workers, where the market average salary is below £20,000 per year. While new entrants to the labour market (for example those aged under 26 and some trainee positions) may receive lower salaries than more experienced workers, there will be a minimum of £20,480 (or 70% of the going rate, whichever is higher) there also.
5. Tradeable points: The idea of tradeable points is introduced to the new Points Based System, which is a concept that has not featured in the old system being replaced. Points will be tradeable where a migrant will (for example) work in a UK shortage occupation (those where there is acknowledged difficulty to recruit, or a deficit of skill in the UK), meaning that a lower salary will be acceptable in return for employment in that more desirable role. This will give employers a little flexibility, but the tradeable categories cover a minority of positions, so for most, the minimum salary levels at point 4 will be rigidly applied.
6. Numbers of migrant workers will no longer be capped: This is a welcome change, and with it comes the removal of the Resident Labour Market Test (RLMT), which is a mandatory period of advertising before migrant workers can be offered a sponsored UK position. UK Visas and Immigration believes that removal of the cap and the advertising requirements will reduce processing times for sponsors, but is that really the case? The new rules refer repeatedly to the need for a Skilled Worker to be sponsored in a genuine position where there is a recruitment (and sponsorship) need; how will an employer demonstrate this without undertaking some kind of advertising process akin to the existing RLMT? While a move away from the very rigid requirements of the RLMT is welcome, specific reductions on processing times seem uncertain.
7. The cooling-off periods will no longer apply: Cooling-off periods delay migrants' visa applications where they had been previously sponsored to work in the UK within the past 12 months. Workers are frozen out of the UK for a year, regardless of the duration of their initial period of sponsored employment. This currently applies to workers new to their employer, and those who were (or had previously) transferred from a related overseas office. The removal of this provision gives employers and migrants much more flexibility to look at both short- and long-term UK projects, and is very welcome.
8.Switching between routes will become easier: The current rules are drafted to only include applicants meeting specific requirements relating to their status (eg current Tier 4 students are included in rules to switch to Tier 2 worker). The news rules flip that approach to outline which categories are excluded from the Skilled Worker or Intra-Company routes. These will be Visitors; Short-term students; Parent of a Child Student; Seasonal Workers; Domestic Workers in a Private Household; and those with leave outside the Immigration Rules. This is a significant development, as it gives many more migrants the opportunity to switch into a long-term sponsored route more easily, and without having to return to their country of origin to make a fresh visa application.
9. Simplification of ways to meet English language and financial requirements: Reliance on UK-gained qualifications to prove English language proficiency will be extended to include GCSE/A-level and equivalent Scottish qualifications. Financial requirements will also be simplified, meaning that applicants should need to show less documentation less often.
10. Settlement will be no longer be as restricted by pay: Under current rules a minimum salary of £35,800 is required for a migrant to secure settlement in the UK under the sponsorship of their employer. That requirement will be removed, keeping salaries tied to the minimum levels described above at point 4. This is a very welcome development; employers who have increased salaries to meet their workers' needs have found themselves wrongly accused of artificial inflation, and some sectors – such as nursing – have found themselves completely unable to keep up with the rising salary requirements year on year.
While positive new initiatives will be introduced in December, some aspects of employment of skilled staff will remain unchanged. Licenses will still be required by employers, and individual migrants will continue to require individual sponsorship, for example. There will also be no major change to the duration of UK residence required for settlement – remaining at 5 years – and family members (partners and children up to 18) will still be able to accompany a sponsored worker to the UK. As a result, the new scheme will not feel totally alien to existing sponsors and will hopefully be more straightforward for new sponsors who wish to engage.