Out-Law Guide | 11 Aug 2020 | 10:04 am | 16 min. read
From this date, free movement for nationals of the European Economic Area (EEA) and Switzerland will end. Non-British and Irish nationals not covered by the withdrawal agreement between the UK and EU will require visas for all but short-term visits to the UK.
Arrivals will require passports, unless covered by the withdrawal agreement. National ID cards will not be acceptable. The government intends to introduce a universal 'permission to travel' requirement on a phased basis to 2025, which will mean that anyone other than British or Irish nationals looking to travel to the UK will need to seek permission to do so in advance. A visa, where held, will constitute permission to travel and the plan is to move towards a digital immigration record.
An electronic travel authorisation (ETA) will be introduced for visitors and those transiting through the UK who do not need a visa for short stays in the UK, or who don't have a UK immigration status before travelling.
Employers should now:
Current sponsored migrants looking to extend their stay after 1 January 2021 will have to do so under the new rules - they will not only be relevant for new recruits.
Consider whether the typical vacancies arising in your business will qualify under the new requirements. What impact could this have on your recruitment practices and costs? Recruiting EEA and Swiss nationals will undoubtedly be more complex, expensive and time consuming from January 2021, where possible at all. EEA or Swiss nationals recruited to the UK ahead of 31 December will be able to remain in the UK under the EU Settlement Scheme rules, avoiding the new system
Now is the time to conduct a 'health check' to ensure your immigration processes and procedures are sufficiently robust; and that you are aware of your compliance duties and adhering to them.
Neither the current points-based system (PBS) nor the new system permits migrants to enter the UK for lower-skilled work below RQF3. Only a limited number of applicants at RQF3 will qualify given the salary thresholds. There will be no temporary route to avoid a 'cliff edge' scenario for businesses, as was previously promised by Theresa May's government. This is a significant concern for affected businesses and the impact on the construction, care, hospitality, tourism, food processing, manufacturing and retail sectors, all of which already face skills shortages, should not be underestimated. The knock-on effect could be widespread, including in many business supply chains.
If you have until now avoided the PBS, you may well find yourself needing to obtain a sponsor licence to recruit the talent you need come 2021. We expect there to be a surge in licence applications in the coming months, which may naturally impact on processing times.
We recommend employers act now if they are not licensed already, so that they are in a good position to hire the talent they need from 2021. See our Out-Law guide UK immigration from 2021: applying for a sponsor licence.
If you already have a sponsor licence, you are likely to be making greater use of it from January if you need to recruit EEA or Swiss nationals. It is not known whether UKVI will increase its auditing of existing sponsors, but now is the time to conduct a 'health check' to ensure your processes and procedures are sufficiently robust; and that you are aware of your compliance duties and adhering to them.
It is vital that those in the UK on the basis of current EU free movement rights secure their ability to remain by applying under the EU settlement scheme in order to avoid the new requirements. Employers should communicate this to affected staff, and consider and provide sufficient support.
The UK government has proposed amendments to the existing points-based immigration system (PBS) rather than a complete overhaul. Most existing economic routes into the UK remain largely unchanged with the exception of the current Tier 2 General route, which is being replaced by a skilled workers route.
We await further specifics in the form of detailed immigration rules, guidance and legislation.
Currently non-EEA/Swiss visa applicants are required to attend in-person to provide biometric information as part of their visa application. Most EEA/Swiss nationals will not have to do so under the new system, and will be able to provide facial images via smartphones. The government's intention is that all nationalities will eventually be able to self-enrol in this way.
The new system will allow most migrants - other than short-term migrants such as visitors and seasonal workers - to switch from one immigration category to another within the UK. If implemented as widely as indicated this will be welcomed by many employers, particularly if applicable in common scenarios such as Tier 2 Dependant moving to become main Tier 2 visa holder or Youth Mobility Scheme visa holders moving to a skilled worker visa.
These are the immigration routes for which an employer or university must hold a sponsor licence.
The government has stated an intention to radically change processes, streamline and simplify the system for users to speed things up. If realised this will undoubtedly be welcomed by employers for whom the current PBS can be very complex, time consuming and process-heavy.
This new route will replace the current Tier 2 General route.
Job offer from UK licensed sponsor required
Suspension of annual cap on entrants
No resident labour market test
Migrants must score 70 'points'. 50 of these points will be covered by:
An additional 20 points are required - scored according to salary, whether shortage occupation; and, for certain roles, whether the applicant holds a relevant PhD. These points are 'tradeable', but applicants can only score points for one of either shortage occupation or PhD:
New entrants will be able to qualify on a salary of at least £20,480 – down from the current £20,800 – or 70% of the going rate for the role, whichever is higher, without having to acquire additional points. This will apply to those:
The government has indicated that the current costs of sponsorship will remain unchanged, with the exception of the immigration health surcharge, which they intend to increase, as follows:
Visa fees and the immigration health surcharge will also be payable in respect of dependents.
As is currently the case for Tier 2 General, time spent in this route will count towards an application for indefinite leave to remain.
The suspension of the annual cap on entrants and removal of the resident labour market test will be welcomed by employers. Both have significantly increased the complexity and timescales involved in recruiting migrants in the UK.
These changes could result in an increased number of overseas applicants for eligible UK positions. Employers must remain mindful of discrimination considerations stemming from selection decisions, with cost and complexity of sponsorship unlikely to justify refusal of a candidate alone.
Employers will be unable to recruit EEA/Swiss nationals to the UK for lower skilled roles, below RQF3, as is the case for non-EEA nationals at present.
Lowering the skill and salary thresholds are welcome changes, particularly in the absence of a lower skilled route. However, lower paid roles - between £20,480 and £25,600 - will only qualify for a visa if they are shortage occupations or the individual holds a PhD. Accordingly, these relaxations are likely to benefit a very limited group of people.
The ability to trade points where a PhD is held will only be available in certain listed occupations and only where that PhD is relevant to the role. Employers will be expected to be able to justify the relevance of the PhD. Many of the occupations listed as eligible to trade PhD points are currently classed as shortage occupations. Tradeable points can be claimed for shortage occupations or a PhD, but not both.
The 'going rate' for roles may have changed by the time the system is in place. In addition, the government intends to check PAYE records regularly to ensure migrants are being paid the correct amount. It will be particularly important for sponsors to be compliant and retain all required records.
A lower minimum salary of £20,480 or the going rate for the role as determined by national pay scales will apply for certain health and education roles. These individuals will not be able to trade points, with the exception of certain nurses and midwives.
Part of the skilled worker route, this will apply to individuals working in eligible health occupations with a job offer from the NHS; social care sector; or employers and organisations which provide services to the NHS.
Eligible individuals will benefit from:
The limited roles eligible for this route has attracted some criticism, notably the exclusion of care home staff and those providing home care. The government has announced that frontline workers not eligible will have to pay the immigration health surcharge but can benefit from a reimbursement scheme, the precise details of which are to be confirmed.
This is an existing route for overseas group employees being transferred to the UK. Its eligibility criteria do not look set to change.
Job offer from UK licenced sponsor required
No resident labour market test
50 points scored through:
We expect financial maintenance requirements to remain as currently applicable
One big change relates to switching. Currently ICT migrants looking to move to Tier 2 General must depart the UK, wait out a 12-month cooling-off period and then apply to re-enter the UK, potentially after a resident labour market test is carried out. Under the new system these migrants will be able to switch in-country to the skilled worker route. This will be welcomed by employers who wish to keep such migrants beyond the maximum visa term available to them.
The 'cooling off' rules applicable to this category are also being simplified. Under the new system, visa holders will simply be limited to remaining in the category for a maximum of five years in a six year period (nine years in the case of high earners). This will allow greater flexibility when it comes to short-term assignments and, when coupled with the ability to switch in-country, will be welcomed by employers. It is not known whether relaxed cooling off provisions of this nature will be extended to the skilled worker category.
The existing Tier 4 student route is not expected to change. However, students will be able to apply for their visa six months before the start of their course. This will likely be welcomed by students and universities alike.
Other relaxations will also be implemented, including:
University sponsors will be subject to a new requirement to retain student engagement records, replacing current attendance monitoring duties.
A new graduate route will also be introduced, for more on which see below.
The remaining sponsored categories such as those for sporting, creative and charity roles appear to be set to remain unchanged.
Non-sponsored routes are available to migrants without a job offer.
A new route is proposed for a limited number of the most highly skilled workers to come to the UK without a job offer. This will not be rolled out from 1 January 2021, but possibly later in 2021.
Another new route, to be launched in the summer of 2021, this will provide international students with the opportunity to stay in the UK to work or to look for work once they graduate. Frustratingly, we still do not have further specifics on when this will open.
International students with valid leave as a Tier 4 (General) Student or a Student at the time of application and who have successfully completed a degree at undergraduate level or above at a UK higher education provider
|Duration of leave||
Two years for undergraduate and master's degree students
Three years for PhD students
Time spent in this route will not count towards an eventual indefinite leave to remain application, but individuals may be able to switch to a category which can lead to settlement
This will be a useful route for employers, as graduates can be taken on without sponsorship initially. It will encourage skilled talent to remain in the UK, helping to make UK universities a more competitive and attractive proposition in the global market.
Graduates will have the following options open to them, depending on their particular circumstances:
The variety of remaining unsponsored routes will remain largely unchanged including global talent; start-up and innovator; youth mobility scheme; and visitor visas.
Those who currently hold sponsor licences will automatically be granted a licence under the new system, with an expiry date consistent with their current licence and an appropriate allocation of Certificates of Sponsorship.
It is not yet known where this will involve a simple licence rebranding – to account for the new skilled worker route – or replacement. In addition, we wait to hear whether such changes will be accompanied by much-needed simplification and improvement of the online sponsorship management system, something many sponsors would be likely to welcome.
Those employers who do not currently have a sponsor licence but who anticipate needing one in the future are encouraged to consider applying for one in advance of the changes.
19 Feb 2020
11 Jun 2020