The new immigration system: the Government reveals important changes

The Statement of Changes to the Immigration Rules released on 22 October 2020 provides important new information about the Points-Based Immigration System to take effect following the Brexit transition period. This is a very significant change to immigration requirements and should be fully understood by all who manage immigration on behalf of their organisations.

The new ‘Skilled Worker’ route replaces the current “Tier 2 General” application and makes important changes to it. Some of these have been well advertised over the past 18 months; the minimum skill level required for sponsorship will be roles requiring the equivalent of RQF 3 (A level) rather than RQF 6 (Graduate). The resident labour market test, beloved of immigration lawyers but less so by HR practitioners, ends at the close of business on 30th November 2020. The cap on the maximum number of certificates of sponsorship which may be issued per month ends too, although the cap is suspended rather than abolished.

Less well advertised is the fact that the “cooling-off period”, which regularly prevents employees from returning to the UK for new roles following an assignment is to end for Skilled Workers, as will the complicated rules about the maximum time sponsored workers may spend in the UK.

Tier 2 currently recognises “new entrants” to a profession, by allowing such employees to receive a lower salary and still secure the necessary points for a sponsored visa. In the Skilled Worker route this category is expanded to include those sponsored in postdoctoral research positions and those working towards professional qualifications, registration or chartered status.

The new ‘Intra-Company Transfer’ rules see changes to the cooling-off period, a reduction in the “high earner” salary figure to £73,900 and changes to the rules about the maximum period of leave in the UK. . We anticipate however that this route will be used far less from 2021 given the changes we will see in the new Skilled Worker route.; there seems no benefit to making an application within this category instead of Skilled Worker unless the employee can not meet the English language requirements.

Other changes introduced include legislative protection for anyone who remained without leave to remain between 24 January and 31August 2020 due to Covid-19. The general grounds on which applications may be refused altered are stricter and include mandatory refusal based on prior custodial sentence.

What then is new in these Immigration Rules? Many of the changes were widely anticipated for some time and the change to salary bands and qualification should not be a surprise to anyone. We would suggest three actions regarding the Statement of Changes which should be considered now by those who manage immigration:

• 1. Unlike other major immigration changes in the past these changes are imminent, due to take effect within five weeks of writing. Understanding of the transitional arrangements is important. Consider immigration applications which were scheduled for November and December – do they fit better within the current rules, new ones or equally under both?
• 2. Qualification for a Certificate of Sponsorship becomes easier within this new system but access to the system is not. Visas are now available for job roles which have not qualified for sponsorship for many years, if ever. Technical changes in respect of the “cooling off” periods, maximum time spent in the UK and switching all make it easier to sponsor workers. The cost of application fees to do so will be a more serious practical barrier to sponsorship and should be factored in to your international assignment programme;
• 3. The Statement of Changes does indicate how to sponsor employees from December, but is not a holistic consideration of the immigration system after the end of the Brexit transition period. Law relating to this will develop over several years rather than be delivered by statute, so those managing immigration processes need to continue to follow changes carefully.
• 4. Consider carefully the strategy on the use of the Skilled Worker route. If the desire is to limit use in terms of volume or job type, employers should recognise that this will probably raise indirect race discrimination risks and objective justification arguments should be properly articulated.

In respect of new EEA workers, it will not be possible to apply for entry clearance or leave to remain until 2021. Given the concerns expressed about access to the system above, we suggest considering whether there are alternatives to sponsorship for EEA citizens moving to the UK in early 2021 to allow access to the EU Settlement Scheme.

The current requirements have been in place for almost exactly 12 years and, for most people managing immigration processes, will be all they know. Whilst the changes above should not make it more difficult for anyone to qualify for sponsorship, the significant change is that these requirements will apply to a far wider group of employees/new hires than the current rules do. Remaining aware of changes, considering resource needs and training requirements will all be important.

For further information on any of the topics covered in this briefing, please contact:

Lisa Bryson, Partner in our Employment & Immigration Department - lisabryson@eversheds-sutherland.ie

Laura McManus, Associate in our Employment & Immigration Department - lauramcmanus@eversheds-sutherland.ie

Simon Kenny, Principal Associate in the Human Resources Practice Group - simonkenny@eversheds-sutherland.com