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28 October 2020 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

>>> Further analysis of the new Points-Based Immigration System - the UK working visa routes

PART 1

The new system, which will go live from 1 December 2020, represents one of the biggest overhauls of sponsored migration since the current Points Based System was created over 12 years ago. With the ending of free movement for EEA nationals on 31 December 2020, the Points-Based Immigration System will be the only option for foreign nationals wanting to work in the UK. The visa requirements will therefore have a massive impact in shaping the UK’s labour market for years to come.

Say Good-bye to Tier 2 (General) visa and welcome the Skilled Worker visa

The headline news is the rebrand of the Tier 2 (General) visa into the ‘Skilled Worker route’. As with the recent changes to the student route, the fundamentals of the visa remain largely the same. There are, however, some potentially beneficial changes which will make the system more workable for businesses and employees.

The first point to note is that this still remains a sponsorship visa. A potential Skilled Worker must still have a job offer which reaches certain skill and salary thresholds from an employer who holds a skilled worker sponsor licence. As the visa does not allow the holder to work for whomever they choose, it is vastly more restrictive than the free movement rights EEA nationals currently enjoy.

The rules for the Skilled Worker route are in a new Appendix Skilled Worker. They are split into validity, suitability, eligibility, financial and criminal record requirements.

Validity

Applicants will still need to provide a certificate of sponsorship which is less than three months old and pay the Immigration Health Surcharge. One new feature is that EEA applicants applying from outside the UK will be able to apply for the visa using a mobile phone application (App). The applicant will also need to be 18 years of age rather than the current limit of 16.

The major changes relate to switching. Under paragraph SW1.5 it will be possible to switch into the Skilled Worker route from inside the UK for all visa holders except those who are in the UK as:

(a) as a Visitor; or
(b) as a Short-term student; or
(c) as a Parent of a Child Student; or
(d) as a Seasonal Worker; or
(e) as a Domestic Worker in a Private Household; or
(f) outside the Immigration Rules

This is a significant and welcome development. And Yes, the Tier 5 migrants will be able to switch into the Skilled Worker route without leaving the UK. This is one of a number of sensible alterations that will make the Skilled Worker visa much more user-friendly compared with the Tier 2(General) category.

Suitability

Applications will be subject to the grounds of refusal under Part 9 of the Rules, which have been made more difficult— particularly on criminality grounds. If applying for ‘permission to stay’ (as one now calls the ‘leave to remain’) the applicant must not be in breach of the immigration laws (subject to paragraph 39E) or on immigration bail.

Eligibility

Finally one has a points based element within a points based immigration system! For years the UK Points Based System has been points based in the name only: a Tier 2 visa application is made up of mandatory criteria that an applicant has to meet with, little variation allowed.

The Skilled Worker route has more flexibility. It allows people with different qualifications, salaries and skills to obtain visas.

Mandatory points – 50

First off an applicant needs to have 50 mandatory points from the following;

Sponsorship – 20 points

In simple terms: the applicant needs a job offer. That is, the applicant must have a valid certificate of sponsorship from an authorised sponsor who has paid the Immigration Skills Charge. There will be no need to meet the Resident Labour Market Test (the advertising process that the Home Office required employers to complete to show that there were no other settled workers who could do the job). This is a welcoming news to the businesses. This has, though, left some uncertainty as to how the Home Office would assess whether a job is “genuine”.

Paragraph SW 5.5 gives a clue. This states that the decision-maker must not have “reasonable grounds to believe” that the job the applicant is being sponsored to do;

- Does not exist
- Is a sham; or
- Has been created mainly so the applicant can apply for entry clearance or permission to stay

Well, that is quite ambigous. What is unclear is how and when this will be assessed. One does not know if the evidence will need to be submitted as part of the visa application or if this is something that the Home Office will simply check on during an audit of the employer or via a certificate of sponsorship allocation process (as happens now with Tier 2).

Paragraph SW5.1(b) does indicate that certificates of sponsorship will be allocated for entry clearance under the new system but one is not sure what degree of rigour this process will involve. Home Office guidance should reveal more but the one might end up missing the hectic days of the Resident Labour Market Test.

Job at appropriate skill level – 20 points

To sponsor a Skilled Worker visa application, the employer must match the role to a standard occupational code (SOC). From 1 December 2020, the standard occupational codes for the Skilled Worker route will be contained in Appendix Skilled Occupations. The minimum skill level will drop from RQF level 6 (degree level) to RQF level 3 (school leaver level), broadening out the range of roles which can be sponsored for a visa.

Paragraphs SW 6.2 and 6.3 give the Home Office some power to refuse an application if the wrong choice of code is made. Again it is unclear for now when this assessment will take place, whether during the application process or as a spot check. Either way, the new system will certainly have its pitfalls and potential for refusals. How energetically the Home Office will exercise these powers remains to be seen.

English language skills at level B1 – 20 points

Tradeable points – 20


The applicant then needs 20 points related to their salary, for a total of 70. There are various ways to earn these final 20 points, which is why they are referred to as “tradeable”. The table below (adapted from Appendix Skilled Worker) shows the different ways in which they can be earned.

- A - The applicant’s salary equals or exceeds both £25,600 and the ‘going rate’ for the job’sSOC code - 20 points

- B - The applicant has a PHD in a subject relevant to the job (the sponsor must provide a “credible explanation” as to how it is relevant) and their salary equals or exceeds both £23,040 and 90% of the going rate for the SOC code - 20 points

- C - The applicant has a PHD in STEM subject relevant to the job and the applicant’s salary equals or exceeds both £20,480 and 80% of the going rate for the SOC code - 20 points

- D - The job is in a shortage occupation and the applicant’s salary equals or exceeds both £20,480 per year and 80% of the going rate for SOC code - 20 points

- E - The applicant is a new entrant to the labour market and their salary equals or exceeds both £20,480 per year and 70% of the going rate for SOC code - 20 points

- F - The job is in a listed health or education occupation and the applicant’s salary equals or exceeds both £20,480 per year and the going rate for SOC code - 20 points

The government has indicated that it may amend the tradeable points criteria to benefit industries or sectors that are struggling to source labour. The hope is that the system can be much more responsive to market conditions.

PART 2

Who is a ‘new entrant’?

The new entrant salary levels are designed to give younger people or those at the start of their career a helping hand. As it is assumed their pay will be lower than for experienced workers, the minimum salary needed for the visa is reduced.

The Skilled Worker route has widened the criteria for the new entrant rate to:

- Those under the age of 26 at date of application
- Those applying for a postdoctoral position in certain science roles
- Those whose job offer is for a UK regulated profession and the applicant is working towards one of those professions
- Applicants who are working towards full registration or chartered status with the relevant professional body for the job they are being sponsored for
- Applicants who last had leave at a Tier 1 (Graduate Entrepreneur)
- Applicants who last had leave as a student which expired up to two years before application and completed a Bachelor, Masters, PGCE or PHD in the UK

The new rules also enable a new entrant to be granted up to four years’ permission to stay in the UK (previously the maximum was three years and one month).

What counts as salary?

In a departure from Tier 2, under the Skilled Worker route employment cash allowances, for example for accommodation, can’t be counted towards the salary threshold. There are transitional measures in place for people already in the UK on a Tier 2 (General) visa to allow them to rely on allowances up until 1 December 2026.

Finances

The traditional ‘maintenance’ requirement is carried through to the Skilled Worker route. Applicants must have held funds equalling £1,270 for 28 days as at the date of application. This can also be met by the employer certifying it on the certificate of sponsorship.

If the applicant has held permission to stay in the UK for more than 12 months then they do not have to meet this requirement — a further relaxation in the rules.

Criminal records

Due to the expansion in the types of job that can be sponsored under the Skilled Worker route, there are more SOC codes that require an applicant to complete a criminal records check. This needs to be completed for each country where they have spent more than 12 months in the past ten years before they apply. Paragraph SW 16.1 has the full details.

Period of grant

Another major shift from Tier 2 is the fact that there is now no limit on the amount of time a Skilled Worker visa holder can spend in the UK. A Tier 2 (General) worker was only able to spend a maximum of six years in the UK. Now applicants can be granted permission up to a maximum of five years at a time, with unlimited extensions.

In addition, the cooling-off period has been removed. This rule prevented people applying for another Tier 2 visa until 12 months had elapsed since they left the UK or moved onto another visa.

All this will provide some relief for sponsored workers who travel frequently. Previously they have been unable to extend their visa or apply for indefinite leave to remain due to the strict absence criteria they had to meet to show they had been continually resident in the UK. A Skilled Worker visa holder will be able to spend as much time as they want abroad without jeopardising their ability to remain in the UK long term.

Settlement

An applicant will still be required to be employed by the sponsor for the ‘foreseeable future’ to be granted the Indefinite Leave to Remain (ILR) . Happily, though, the minimum income threshold for ILR has been reduced from its current level of £35,800. There is instead a general provision that an applicant must be earning at least £25,600, and the going rate for the job, when they come to apply for ILR. If they are working in a shortage occupation they will need to be paid above £20,480 and the going rate for the job.

The Intra-Company Transfer (ICT) routes

There has been a modest revamp for what are now known as the Intra-Company Transfer route and the Intra Company Graduate Trainee route. The new rules are contained within Appendix Intra Company Routes and are largely in line with the ICT visa process that exists at the moment.

The main points are:

- The Intra-Company routes will have the same flexibility as the Skilled Worker route in terms of switching from other visa categories from within the UK.
- The eligibility requirements are in line with the present system, in that an applicant will need a certificate of sponsorship from a sponsor. They will still need to show they have previous overseas employment within the ‘sponsor group’ for at least 12 months unless they are a high earner with a salary of £73,900. In this case there is no minimum amount of employment required. A graduate trainee will only need to show three months of employment.
- This overseas employment can be accumulated over any period provided the applicant is continuously working for the group both in and out of the UK from the start of the 12 months to the date of application.
- The job needs to be at the appropriate skill level; the specific SOC codes which are eligible for the ICT routes are marked in Appendix Skilled Occupations. The minimum skill level is remaining at RQF level 6 for this visa.
- The salary thresholds for the visa route have remained the same, so that the minimum is £41,500 for ICT and £23,000 for Intra Company Graduate Trainee.
- The ICT routes also feature the same new financial requirement as the Skilled Worker visa.

The key difference between this set-up and the current Tier 2 (Intra-Company Transfer) route is in the length of visa on offer. If the applicant is a “high earner” — i.e. their salary is above £73,900 — then they can get cumulative periods of permission in the ICT route of up to nine years in any ten-year period. If the applicant is not a high earner, they can stay in the ICT route for no more than five years in any six-year period.

Plus, ICT visa holders will be able to switch into the Skilled Worker route once in the UK. As the ICT route still does not lead to settlement, this will allow an applicant to move onto a visa which will allow them to remain permanently in the UK.

Global Talent

The rules for this route will now be in Appendix Global Talent. There have been some amendments to this route to allow talented individuals who are more advanced in their career to apply as an “emerging leader” in their career. Previously this was limited to those who have “exceptional talent” or ‘exceptional promise’. There will also be an extension to the types of academic and research roles that qualify for the visa.

Turkish workers and businesspersons

A new Appendix ECAA Extension of Stay aims to enable Turkish workers, businesspersons and their existing family members to apply for ILR on the broadly the same criteria as now, with the exception that UK rather than EU deportation thresholds will apply for crimes committed after the end of the transition period.

Other work categories

Life will continue pretty much as normal for the categories listed below, albeit that the rules are all moving into shiny new appendices.

- Tier 2 (Minister of Religion)
- Tier 2 (Sportsperson)
- UK Ancestry (note there does not seem to be provision for people to switch into UK Ancestry from inside the UK)
- The Tier 5 Temporary Worker routes for seasonal workers, youth mobility, religious workers, charity workers, creative and sporting workers, and those coming to work in the UK under international agreements or government authorised exchange schemes
- Start-up
- Innovator

This statement of changes is in many ways a positive step forward. The government is eliminating a number of annoying and pointless rules which have needlessly restricted sponsored migration. It will certainly make the system simpler, and the jobs that can be sponsored are broader and more inclusive. The system also has sufficient flex that it can be quickly adapted to support industries which are finding it difficult to fill vacancies.

But the new Points-Based Immigration System is an inferior and costly replacement for EU free movement. Employers and workers are going to have to shoulder the high costs of sponsorship and get used to a system that requires a lengthy visa process to be completed before someone can begin work. What impact this will have on the UK economy and labour market is, as the government says itself, uncertain. The one is all about to take a giant leap into the unknown.

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