More details of post-Brexit immigration regime revealed

Published on
5 min read

The Government has published further post-Brexit details of the new immigration system which replaces EU freedom of movement from the start of 2021

The Government has published further details about the new immigration system that is due to be implemented from 1 January 2021.  The Further Details statement builds on the policy statement that was issued in February 2020.   European freedom of movement will end on 31 December 2020 and the new system will apply to all European and non-European applicants.

Key points for employers

  • Skilled Worker visa – the Tier 2 (General) category will be renamed the Skilled Worker route.   Applicants will need a job offer skilled at RQF Level 3 (A-level or equivalent) from a sponsoring employer and will require a minimum of 70 points to qualify for permission to work in the UK.   Some points characteristics are mandatory (eg, job offer with a sponsor at an appropriate skill level and English language skills), with others being ‘tradeable’ (eg, salary level, filling a shortage occupation role, and education qualifications).   
  • Streamlining - the resident labour market test will be abolished (helping to reduce recruitment lead-in times by up to around a month) and the cap on the number of visas that can be issued each year will be suspended.  However, the controversial Immigration Skills Charge of £1,000 per year will continue to be payable by sponsoring employers, subject to limited exceptions. 
  • Health and Care visa – the announcement of this category, which is due to open for applications from August 2020 (using the existing Tier 2 infrastructure), has been the subject of considerable criticism, particularly from the social care sector.   This is understandable as applicants will need to meet the same criteria as for Tier 2 and Skilled Worker visas, with the only differences seemingly being shorter processing times, lower fees, dedicated support from the Home Office, and an exemption from the Immigration Health Surcharge.   This means it will not provide a visa option for many roles in the social care sector.  Applicants will need to be coming to the UK to perform one of 18 eligible occupations, including medical practitioners, nurses, pharmacists, physiotherapists and paramedics.
  • Switching – in a significant development, there will be more flexibility for in-country switching between visa categories for applicants who meet the criteria for the relevant category.   This will be welcomed by employers as it will reduce costs and disruption and in many cases enable employees to continue working for the employer (rather than have to leave the UK) pending a fresh application being determined.   It will continue to be the case that visitors will not be able to switch into other categories when in the UK.
  • Intra-group mobility – the Tier 2 (Intra Company Transfer) category will remain largely unchanged, enabling international businesses to transfer existing skilled employees from overseas to the UK for limited periods.   The existing minimum salary threshold of £41,500 or the SOC Code rate, (whichever is higher) will apply, roles will need to be at RQF Level 6 (ie, degree level), and it appears that applicants will need to have worked for 12 months with an overseas linked entity in the period prior to applying irrespective of the salary they will be earning in the UK.   There will be increased flexibility in the rules to provide for shorter term work assignments.  It will remain the case that this category will not lead to settlement in the UK.    
  • International students – a new non-sponsored graduate route will allow international students to remain in the UK after completion of their studies to work for a two year period (or three years for PhD students).   This appears to be an attempt to maintain the attractiveness of the UK as a destiny for international students in a competitive international higher education market that includes study destinations such as Australia, Canada and the USA, some of whom have been perceived as having more favourable post study work routes that the UK.   
  • Highly Skilled Worker route – details about this non-sponsored category have not yet been published and there will be a further period of consultation in 2021.   Numbers would be capped and policy announcements suggest this category is likely to be open to only a small number of individuals.  It appears that the Global Talent (which has accelerated endorsement options compared with the predecessor Tier 1 (Exceptional Talent) category), Start-up, and Innovator visa categories will remain in place.
  • Biometric appointments – most EU applicants will not be required to attend a visa application centre to enrol their biometrics.  Instead these will be provided through a facial images scanning facility available on a smartphone app.   This is part of a longer term strategy to move towards self-enrolment for most visa applications.

Actions for employers to take now

COVID-19 has understandably taken up significant bandwidth for many businesses and institutions.  It is crucial, however, that employers take steps in good time to prepare for the new system.  Key actions will include:

  • Sponsor licences - employers who are not currently Tier 2 sponsors and who are likely to need to recruit European or other foreign nationals from 1 January 2021 should consider applying for a sponsor licence now.   These applications can be made now.  There is likely to be a significant increase in applications in the second half of this year, which may result in significant delays, potentially impacting on recruitment timetables.   
  • Sponsor licence structures – although Tier 2 (General) licences will automatically be converted to Skilled Worker licences, employers who are already Tier 2 sponsors should consider whether their current licence reflects future requirements.   For example, do further sites or locations need to be added to the licence, or subsidiary companies linked as branches or added to a Tier 2 (Intra Company Transfer) licence?
  • Unskilled labour - employers who rely on low skilled European migrant labour should start to plan for how these roles will be filled in future.   It seems clear that visa routes for low skilled workers will be very limited, including for sectors such as social care.  

The Mills & Reeve immigration team can advise on all sponsor licence and visa issues and can help you get in good shape for the changes ahead.   This includes the option for us to become your legal representative on the sponsor management system, effectively taking immigration compliance issues ‘off your desk’.  

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Recorded on 29 September 2020 Alex Russell covers what employers need to know about the new immigration system that will be in place from 1 January 2021 and the actions to take now to prepare for the changes.
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