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Brexit and the end of transition: the new immigration system
On 14 July, as part of the Government’s ‘get ready for Brexit’ campaign, the authorities published a policy paper setting out further details of the new immigration system that will come into force on 1 January 2021. The biggest change is that from 1 January 2021, EU citizens will need immigration permission to live, work and study in the UK: freedom of movement for EU nationals will end and they will be subject to immigration control. If businesses want to employ EU nationals they will need to obtain a sponsorship licence to enable them to sponsor non-UK nationals to work in the UK, and pay the associated costs.
Some of the principal take aways from the announcement include:
1. Sponsorship system
2. Permission documents and biometrics
4. Skilled workers
5. Genuine vacancy requirement
6. Switching concessions
7. Concessions for intra-company transferees
8. The future
9. BNO - Hong Kong
10. Electronic travel authorisation
11. New graduate route from summer 2021
12. Tier 1 (Investor) and sole representatives
13. What should employers do now?
To provide employers and prospective future sponsors with certainty, the authorities (UK Visas & Immigration) confirmed that they will continue to apply existing sponsorship controls.
Existing Tier 2 (General) and Tier 2 (Intra-Company Transfer) sponsors will automatically be granted a new Skilled Worker licence or Intra-Company Transfer licence, with an expiry date consistent with their current licence, and will receive an appropriate allocation of Certificates of Sponsorship (CoS). This will allow them to apply for and obtain CoS (work permits) for EU national employees who arrive to take up posts in the UK after the end of the transition period on 1 January 2021.
Businesses that have not registered to become licensed sponsors should do so now, especially those which envisage hiring non-UK talent.
Instead of being provided with a physical status document, EU nationals will be provided with secure access to their immigration status information via an online service which they will be able to use to confirm their rights and to access services when necessary.
From January 2021, most EU nationals will not need to attend a Visa Application Centre (VAC) to enrol their biometrics and will instead provide facial images using a smartphone self-enrolment app. EU nationals will not need to enrol their biometrics before visiting the UK, but self-enrolment is part of UKVI’s long term vision.
Application fees will continue to apply under the new system as they do now, and will apply to both EU and non-EU citizens.
The Immigration Skills Charge, currently either £364 or £1000 per applicant, depending on the size of the sponsoring organisation, will be levied on UK employers of skilled workers on the same basis as now. However, the current exemption for employers of EU, EEA and Swiss citizens will be removed when free movement between the UK and the EU comes to an end on 1 January 2021.
The Immigration Health Surcharge (£400 per person per year from 1 October 2020) will continue to be paid by most overseas migrants coming to the UK for more than six months. The Government has confirmed that they will introduce a new discounted rate for those under the age of 18.
The paper set out details of the policy which will apply to applicants seeking entry to the UK to work. All applicants must meet the following mandatory criteria in addition to passing the relevant UK criminality checks:
- The applicant must have an offer of a job from a licensed sponsor;
- The job must be at or above the minimum skill level: RQF3 level (A level) or equivalent qualification. Workers will not need to hold a formal qualification - it is the skill level of the job they will be doing which is important.
- The applicant must speak English to an acceptable standard.
Meeting the mandatory criteria above will earn the applicant 50 points; they must obtain a further 20 “tradeable” points through a combination of points for their salary, a job in a shortage occupation, or a relevant PhD.
Under the new Skilled Worker route there will be no requirement for employers to advertise the position in the UK prior to making the application. This reform will remove at least four weeks from the end-to-end process for sponsoring skilled workers. However, sponsors must still show that they are seeking to fill a genuine vacancy which meets the skill and salary thresholds of the new route. Roles cannot be created solely to facilitate immigration of a specific migrant to the UK.
Under the Points-Based System, UKVI confirm that they will allow most migrants to apply to switch from one immigration route to another without having to leave the UK. This will support employers in retaining the talented staff that they have invested in.
There will be no right to switch in the UK for work or study for those on short-term routes such as visitors and seasonal workers.
This route allows intra-company applicants to come to the UK in roles skilled to RQF6 – the paper confirms that they are to be subject to a different minimum salary threshold from the main Skilled Worker route. ICT applicants will not be subject to English language requirements, but will be subject to a requirement that the worker has been employed by the business for a minimum period prior to the transfer (12 months in the case of intra-company transfers unless they are paid £73,900 per annum or three months in the case of intra-company graduate trainees). This route will not provide an avenue to settlement. Those admitted on the route will, however, be permitted to switch into the Skilled Worker route whilst still in the UK if they meet the qualifying requirements for that route.
The policy paper also confirms that the authorities will adjust the existing “cooling off” rules, which provide that once a Tier 2 CoS holder has left the country, they will be unable to apply for a new Tier 2 General Visa for at least 12 months, in order to ensure the future system makes more flexible provision for shorter-term assignments.
The policy paper makes some provision for new routes outside of the points-based system to run alongside the employer-led system. This will allow a smaller number of the most highly skilled workers to come to the UK without a job offer. This route will not open on 1 January 2021 and UKVI are exploring proposals for this additional route with stakeholders over the coming year. They have confirmed that their starting point is that this route would be capped and would be carefully monitored during the implementation phase.
The Government also confirm in the paper that they will introduce a new immigration route for British Nationals (Overseas) and their immediate family dependents who are usually resident in Hong Kong, allowing them to live and work in the UK and providing a pathway to citizenship.
The authorities will introduce a universal ‘permission to travel’ requirement which will require everyone wishing to travel to the UK (except British and Irish citizens) to seek permission in advance of travel. Electronic Travel Authorisations (ETAs) will be issued to visitors and passengers transiting through the UK who do not currently need a visa for short stays or who do not already have an immigration status prior to travelling. They will be required to undertake a light-touch application process, which will allow security checks to be conducted and informed decisions taken using information obtained at an earlier stage, in order to allow travel into the UK.
The graduate route will allow international students to remain in the UK to work for two years (or three years for PhD students) after graduating. This route resembles the former post study worker visa. Graduates will not need to be sponsored. This will be a very attractive and flexible route for employers who will not be required to pay the fees linked to Tier 2 visas under this route.
Although the policy paper is silent on the future of these routes, it is expected that they will continue to operate as they do currently. We await further confirmation from the government as regards any possible changes.
All businesses employing EU citizens arriving from 1 January 2021 should apply for a sponsorship licence or a “Skilled Worker Licence” as it will be known under the new regime.
Many more businesses could be affected by the changes, which is expected to place a huge strain on Home Office resources and an already overwhelmed immigration system. Businesses should plan for the amount of time it will take to obtain a licence if they do not already hold one – this can take several months, though we have recently seen UKVI issue them much more quickly (within a couple of weeks in some cases). However businesses should count on, on average, an eight week processing time after the application has been submitted. With an already overwhelmed immigration system and the delays caused by Covid-19, businesses face a real risk of being unable to recruit the talent they need, if they do not start the process now.
Sponsorship Licences bring with them onerous reporting and recording obligations and employers who have not yet obtained a licence will need to ensure that they understand their obligations under the highly regulated sponsorship regime, with detailed compliance rules.
Remember the additional fees for the licence, as well as other fees, including an immigration skills charge (of £1000 per applicant per year, and the immigration health surcharge, (which will be rising to £624 per applicant per year from October). These will now apply to formerly exempt nationals of the EU, EEA and Switzerland who are coming to work in the UK – though not to those who travel to the UK on short visits, for example to attend business meetings. It is important to understand when a non UK employee, for example, needs to obtain specific permission to travel to the UK to work or do business.
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