With only a matter of weeks to go until the Brexit transition period comes to an end, the UK government has now released its Statement of Changes to the UK Immigration Rules. The update formalises the previous government proposals set out in its July 2020 policy paper. The statement is the most voluminous Statement of Changes released in recent years and totals 510 pages with changes to almost all visa categories.
The key highlights employers need to know are as follows:
Changes to Tier 2 General (Skilled Worker category)
The Tier 2 General visa category will be converted into the Skilled Worker visa category. The majority of the framework will remain in place including that the individual must be sponsored by a government-approved UK-based sponsor and be issued with a Certificate of Sponsorship (CoS). The Skilled Worker category will no longer be subject to a resident labour market test (RLMT) and the annual cap on the number of CoS that can be issued each year will also be removed. There will be a reduction to the minimum salary an individual will need to earn in order to be eligible for sponsorship under the Skilled Worker category, reducing from the existing level of £30,000 per annum to £25,600 per annum. In some instances, the minimum salary may be lower, such as where the individual is a new entrant to the job market, undertaking a PhD-level position or the role is classified as a shortage occupation role. Companies should note that whilst the minimum salary is set at £25,600, the role must still be aligned to a job code (known as a SOC code) which each have their own minimum salary. Where the SOC code salary is higher than £25,600, the company must pay this higher salary.
Other changes to the Skilled Worker category include the reduction in the skill level from RQF Level 6 (degree level) to RQF Level 3 (A levels) and also the removal of the six year cap on the amount of time an individual can spend in the UK under the visa category. This should apply to existing Tier 2 General visa holders as well as those under the Skilled Worker category. The cooling off period for Tier 2 General/Skilled Worker visa holders will also be removed.
Changes to Tier 2 Intra-Company Transfer (Intra-Company Transfer category)
The Tier 2 Intra-Company Transfer visa will be re-branded to just “Intra-Company Transfer” (ICT). There are not many changes to this particular category but this is unsurprising given the recent instruction by the UK government to the Migration Advisory Committee (MAC) to review the ICT visa category in general. As now, an ICT visa applicant must be currently employed by an overseas company and be transferred to the UK to perform a role with a linked UK company. The salary rate under the ICT category will remain set at £41,500 per annum (or the SOC code rate, whichever is higher). Unlike the Skilled Worker category, the minimum skill level will remain at RQF Level 6 in most cases, which may cause confusion amongst sponsors.
Other changes to the ICT route are that the “high earner salary threshold” will be reduced from the current level of £120,000 per annum to £73,900 per annum, meaning that those who earn at least £73,900 can spend up to 9 years in the UK (currently capped at 5 years). Furthermore, employers should note that those who hold an ICT visa should be able to switch into the Skilled Worker route within the UK. A cooling off period will exist to prevent ICT holders spending more than five years in the UK under an ICT visa in any six year period but this cooling off period does not appear to extend to the Skilled Worker category.
Other points to note
Those who currently hold a Tier 2 sponsor licence will see their existing sponsor licence automatically converted to be able to sponsor individuals under the new immigration system. Most changes to the UK immigration system will come into effect on 1 December 2020 although EU nationals should note that they cannot switch into existing immigration routes from within the UK until 1 January 2021 (although they can make an application from outside the UK from 1 December 2020). There will be no fundamental changes to the UK Ancestry or Tier 5 Youth Mobility Scheme (YMS) routes although Tier 5 YMS visa holders may switch into the Skilled Worker category from within the UK from 1 December (a change from the existing rules which stipulate an application can only be made from abroad).
There will also be changes to the general grounds for refusal, which are the basis on which an individual can be refused a visa/admission to the UK on the basis of their criminality, character or immigration history. Most changes will not be a concern for employers however one immediate concern may be the subtle change to the mandatory ground for refusal for visitors who have been convicted of a non-custodial sentence or received an out-of-court disposal recorded on their criminal record, unless more than 12 months has passed since the conviction. At present, whilst individuals may be refused entry for a non-custodial sentence, this is at the discretion of the entry clearance or immigration officer. This mandatory ban may cause issues for individuals who wish to visit the UK and have recently received convictions for offences such as drug possession or drink-driving. Curiously, this mandatory ban does not extend to other visa types and therefore a company could be in a position where an employee is automatically refused entry to the UK for a business meeting on the basis of a recent DUI, but they could be admitted under a UK work visa.
Whilst the majority of Statement of Changes will prove welcome to employers, enabling a more streamlined process to obtain UK work visas, we still await the accompanying policy guidance which will iron out the ultimate way sponsors will implement the day to day administration of these new changes and maintain compliant sponsorship record keeping.
If you have any questions regarding the new immigration system or would like to set up a no-obligation telephone call with our immigration team, please email immigration@dlapiper.com.