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A snapshot of the latest UK immigration news
In this article, we look at some of the latest immigration related announcements from over the last few weeks and months.
1 – Sponsorship Roadmap
Published last month, the Sponsorship Roadmap sets out changes which were implemented from 1 December 2020. These include:
- removal of the Resident Labour Market Test
- suspension of the 20,700 cap on skilled workers
- the introduction of the pre-licence priority service meaning a decision could potentially be made within 10 working days (if a coveted priority slot can be purchased!)
For the remainder of 2021, the Home Office will be looking to:
- simplify the process for how they review documentary evidence as part of the sponsor licence application process
- review fees
- introduce an enhanced Skilled Worker eligibility checking tool
- pilot their new salary check feature with HMRC
Between 2022 and 2024, there are further plans to streamline the sponsorship journey including:
- faster end-to-end process for both sponsoring organisations and sponsored workers
- the re-use of information already held by the government such as automatic checks against data held by other departments
- making the system more user-friendly
In addition, the Home Office will launch in Spring 2022, the new “Global Business Mobility” route for overseas business wishing to establish a presence in or transfer staff to the UK. This seems to be revising/ amalgamating existing work visa categories, for example the current Intra Company Transfer category.
2 – Shortage Occupation List review
The Migration Advisory Committee (or “MAC” for short) carry out consultations and determine what jobs they consider to be a shortage occupation in the UK.
A benefit to being able to sponsor a migrant under the Shortage Occupation List (or “SOL” for short) is that 20 points can be scored from this element, rather than under the salary element, to score a minimum of 70 points for sponsorship.
As a result of Brexit, there is no longer an endless supply of EU labour and many business sectors such as care homes are struggling to fill roles and/or pay the necessary minimum salary required under the sponsorship rules.
If you are an employer struggling to fill certain roles in adult social care, you may wish to feed your concerns directly to MAC who currently have an active open consultation. You can submit your responses by 29 October 2021 at this link https://www.gov.uk/government/consultations/review-of-the-impact-of-the-ending-of-freedom-of-movement-on-the-adult-social-care-sector. This is your opportunity to influence policy, but more importantly, help yourself help recruit for those difficult to fill roles by having them add to the SOL.
We would expect the rules to be changed wholesale to address the increasing labour shortage and/or further MAC reviews.
3 – An introduction for employers
The Home Office have published promotional material called The UK’s points-based immigration system: an introduction for employers. Whilst the title doesn’t roll off the tongue, it does seem to be a good overview for employers looking to take the first step and embark on the sponsorship journey.
4 – EU Settlement Scheme deadline…
For quite some time, the Home Office have stood firm that EEA nationals resident in the UK by 31 December 2020 must make an application for status under the EU Settlement Scheme by 30 June 2021.
Since then, they have allowed late applications to be submitted, if there are reasonable grounds.
On 6 August 2021, through a press release, the Home Office have said that these individuals “who apply late to the EU Settlement Scheme (EUSS) will have their rights protected” whilst their application is being determined. This will offer some security and stability for both individuals (and their family members), as well as for employers, though we always recommend checking the latest guidance first!
5 – the new “High Potential Individual” visa category
Towards the end of July, the Department for Business, Energy & Industrial Strategy published their UK Innovation Strategy. As part of this strategy, the government aim to introduce the new “High Potential Individual” route, though it’s not clear when.
This route appears to be for graduates from top global universities wishing to come to the UK to work. It seems that no job offer is required and it offers flexibility to the visa holder for changing employers.
If introduced, it seems to be a similar to previous (and now closed) visa categories such as the Highly Skilled Migrant Programme, and the Tier 1 (General) route.
We would expect the current Graduate visa category to remain open, as this is open exclusively to foreign students who are graduating or recently graduated from a UK higher institution.
First published: 28 September 2021
Further information
If you have any questions and/or would like tailored advice on any UK immigration matter, please speak to us at: hello@dixcartuk.com or to your usual Dixcart contact.
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Digital UK immigration status
As UK employers, it is likely that you will, at some point, come across migrants with digital UK immigration status only. That is to say, individuals without physical UK immigration documents. This is likely to become something regular. So who will likely get digital status only, and how do they demonstrate their right to work in the UK?
Who has digital status?
The first group of people are EEA and Swiss citizens who have been granted Settled or Pre-settled Status under the EU Settlement Scheme. Non-EEA/ Swiss family members will still be issued physical documents.
The second group of individuals are EEA and Swiss citizens applying for a visa outside the EU Settlement Scheme, as well as people who apply for a British National (Overseas) visa, and they have used the “UK Immigration: ID Check” app. If they don’t use an app, and attend a biometric enrolment appointment, they should be issued physical documents
We expect that in the future, more groups of people will be granted digital UK immigration status only, although it would not be surprising if this attracts further court action e.g. R (the 3million Ltd) v Secretary of State for the Home Department [2021] EWHC 1159 (Admin). This case was concerned about digital only status, but did not get anywhere as the claim was “premature” i.e. before 1 July 2021 when EEA/ Swiss citizens could still rely on their physical passport/ ID cards to prove their right to work in the UK. Watch this space for news on any further litigation in this area…!
Demonstrating right to work
Where an individual has physical UK immigration documents, the document itself can be used to prove they have a right to work in the UK. If the individual chooses, they can also send you a share code which they can obtain from here.
Where a migrant only has digital UK immigration status, for example, under the EU Settlement Scheme or having used the app, they can obtain a share code from a similar but different link here.
As an employer, you will need to use the UK Government’s “View a job applicant’s right to work details” website to check an individual’s right to work. This website can be used regardless of which website the individual obtained their share code from, but you will also need their date of birth.
Whether you satisfy yourself that an individual has a right to work by examining physical documents (or the temporary COVID related checks), or using the UK Government’s websites, you ought to retain compliant evidence to help you establish a statutory defence against a civil penalty of up to £20,000 per illegal worker. It is also advisable that you take steps to minimise discrimination. For example, British citizens cannot obtain a share code whatsoever, and not all EEA/ Swiss citizens will have status under the EU Settlement Scheme.
OTHER ITEMS TO NOTE
Other than looking at digital UK immigration status and how these individuals can demonstrate their right to work, changes and immigration related news/cases you might want to take a note of include:
- the “Nationality and Borders Bill” recently had its second reading in the House of Commons – it seeks to “tidy up” some gaps in the law, though there is some concern that in its current form, it could criminalise actions taken by organisations such as the RNLI
- there is NEW right to work guidance which took effect from 1 July 2021 – it is advisable that you carefully review as soon as possible and ensure the new guidance is followed
- retrospective right to work checks do not need to be undertaken on EEA citizens if they entered into employment before/ on 30 June 2021, subject to compliant checks having been carried out in line with the relevant guidance at the time. If you do identify EEA citizens in your workforce who have applied to the EU Settlement Scheme and don’t have another form of lawful immigration status, you might be able to take advantage of the transitional measures until 31 December 2021
- there will be a tailored version of the Skilled Worker visa for people displaced from Jordan and Lebanon
- Temporary right to work checks in light of the current pandemic is currently due to end on 31 August 2021
- the UK Government published its UK Innovation Strategy last week and intend to introduce a new High Potential Individual route which would allow individual to come to the UK without a job offer; as well as a scale-up route allowing individuals to apply through a fast-track verification process
First published: 23 July 2021
Further information
If you have any questions and/or would like tailored advice on any UK immigration matter, please speak to us at: hello@dixcartuk.com or to your usual Dixcart contact.
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LAST CALL EU Settlement Scheme and NEW Right to Work guidance
With just a few more days to go, the deadline to submit an application under the EU Settlement Scheme (“EUSS”) is 30 June 2021. Failure to meet this deadline will mean that a person is in the UK unlawfully, although there are “reasonable grounds” to submit late applications.
If you are a UK employer, you will be interested to read the most recent Home Office guidance on right to work checks. This was published on 18 June 2021 and finally includes guidance relating to EEA citizens up to and including 30 June 2021, and from 1 July 2021.
In addition, the temporary COVID-19 right to work measures were due to end on 19 June 2021. However, the temporary changes are now due to end on 31 August 2021. As you may be aware, retrospective checks do not need to be carried out on compliant checks undertaken in line with the temporary measures.
Right to work checks up to and including 30 June 2021
In short, UK employers can still rely on EEA passports and national identity cards as proof of an EEA individual’s right to work in the UK. There is however, the need to ensure compliant evidence has been retained. By doing so, you can establish a statutory excuse and there is no need to carry out retrospective checks after 30 June 2021.
Right to work checks from 1 July 2021
From this date onwards, UK employers can continue to accept Irish passports and Irish passport cards as evidence of an Irish individual’s right to work in the UK.
For all other EEA citizens, UK employers will only be able to accept the same evidence which applies to all other foreign nationals.
In relation to EEA citizens, examples of acceptable evidence of right to work include:
- status granted under the EUSS – UK employers should verify online
- EUSS Certificate of Application or EUSS email confirming receipt of an EEA individual’s application submitted up to and including 30 June 2021 – UK employers should obtain a Positive Verification Notice via the Employer Checking Service
- valid visa/ BRP (e.g. under the points-based immigration system)
Transitional measures until 31 December 2021
The new guidance sets out a new process which can be followed by UK employers until 31 December 2021. This will apply where you discover that an EEA individual in your workforce by 30 June 2021, has not made an EUSS application by 30 June 2021. In this situation, the EEA individual does not have status, but you do not need to immediately cease employment. You should record and maintain records of checks and actions taken, for example keeping comprehensive written correspondence and notes. A summary of the process is as follows:
- advise the EEA individual to submit an EUSS application within 28 days and provide you with a Certificate of Application (“CoA”)
- if the EEA individual fails to do so, you must take steps to cease employment in line with relevant legislation
- contact the Employer Checking Service (“ECS”) once you have the CoA
- receive a Positive Verification Notice (“PVN”) from the ECS if an application was submitted, which together with the CoA provide you with a 6-month statutory excuse
- carry out a follow-up check with the ECS, before the PVN expires, to maintain a statutory excuse
- continue with follow-up checks until the application has been finally determined. If finally determined and refused, you must take steps to cease employment in line with relevant legislation
Conclusion
It is recommended that UK employers keep good and compliant records. In addition, you would be well advised to diarise dates, and you may wish to do so in at least two different sources.
If you have any EEA individuals in your workforce, you may wish to recommend that they make sure they submit an EUSS application by the deadline of 30 June 2021.
It is also recommended that UK employers carefully review the new guidance and/or take appropriate legal advice to ensure your processes and procedures remain compliant. It will also be important to build up an awareness of the rules which apply up to 30 June 2021, and those which apply from 1 July 2021. By doing so you can minimise the risk of receiving a civil penalty of up to £20,000 per illegal worker.
OTHER ITEMS TO NOTE
Other than looking at the EUSS deadline and various right to work rules, changes and immigration related news/cases you might want to take a note of include:
- the new Graduate route goes live from 1 July 2021 – individuals with this visa will be able to work in the UK without sponsorship
- some EEA citizens may be able to rely on recently published EUSS COVID-19 concessions
- countries such as Malta, Madeira, Spain’s Balearic Islands and various Caribbean islands are due to be added to the UK’s green list countries taking effect from 4am on 30 June 2021, although some are being added to the “green watchlist” meaning changes could be made at short notice
First published: 28 June 2021
Further information
If you have any questions and/or would like tailored advice on any UK immigration matter, please speak to us at: hello@dixcartuk.com or to your usual Dixcart contact.
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New Year, New UK Immigration System, New Considerations
Since the introduction of the new UK points-based immigration system on 1 December 2020, and the end of EU free movement rules on 31 December 2020, what exactly does this all mean?
1 – EEA nationals
Most “new” EEA nationals without an existing UK immigration right (e.g. status under the EU Settlement Scheme), will now need appropriate immigration permission before they can come to the UK.
If they are visiting, they can usually do so for up to 6 months without first applying for a Visitor visa; however, as visitors, what they can and cannot do is heavily regulated, and there are strict rules about receiving payment from a UK source. For example, they must not do any work in the UK, unless it is something expressly permitted such as attending a meeting.
If they wish to come to the UK longer term and to work, they will need to consider the same UK immigration options which apply to non-EEA nationals. For example: by being sponsored by an approved UK employer under the Skilled Worker visa category; by being sponsored under the Spouse visa (or other associated) category; or by investing a minimum of £2 million into qualifying UK investments under the Tier 1 (Investor) visa category. Some EEA nationals may even be eligible for a Frontier Worker permit. These visa categories give the right to work. There may be a number of other options available depending on the circumstances of each individual.
2 – The new UK immigration system
With the end of EU free movement rules, the new UK immigration system now applies equally to all non-British/ Irish citizens. It is now comprised of two parts:
- a non-tiered points-based system (PBS); and
- a non-PBS
The end of the Brexit Transition Period means that the “Ankara Agreement” no longer applies to the UK. In most cases, Turkish citizens already in the UK may be able to extend their Turkish Worker visa or Turkish Businessperson visa, although there may be restrictions on who they can work for.
In limited cases, Swiss based companies may still be able to send their employees to the UK to work for limited periods, regardless of their nationality under the Service Providers from Switzerland visa category.
For the rest of the “new” immigration system, much of it has stayed the same, with most of the main visa categories being moved to another section of the rules (so they are no longer sitting within a points-based “Tier” system). In effect, the “new” system is mostly a rebranding job with little substantive changes, for example:
Previous terms New terms Leave to enter Permission to enter Leave to remain Permission to stay Tier 2 (General) Skilled Worker Tier 2 (Intra-Company Transfer) Intra-Company Transfer Tier 5 (Temporary Worker) T5 (Temporary Worker) However, perhaps the biggest and most substantive change was to the sponsored work system. Under the Skilled Worker category, there is no longer the need to carry out the previously mandatory “resident labour market test” (the prescriptive 28-day job advertising requirement).
Naturally, the 2 different types of “certificates of sponsorship” (CoS), restricted and unrestricted no longer exist, since there is no longer an annual quota. Instead, there is now the defined CoS and undefined CoS.
Broadly speaking, the defined CoS is for someone applying for an initial visa from outside the UK, and the undefined CoS is for everyone. As with the unrestricted CoS, sponsors can apply for an annual allocation of undefined CoS which may potentially save HR advisers and employers time.
There are also some other changes which we previously touched on such as a lower skill level under the Skilled Worker route, and changes to the minimum salary thresholds – giving 6 potential ways of meeting the salary requirements and “scoring” a necessary 20 points.
Most of the requirements and obligations under the previous sponsored work system, and the wider UK immigration system more generally remain the same. For example, UK employers should still carry out necessary right to work checks, and repeat these where appropriate.
3 – Conclusion
Although there is a new UK immigration system, much of which was simply a rebranding job, individuals and businesses should be alert to the fact that the same complexities still exist. It remains advisable that immigration advice should be sought from a qualified adviser prior to submitting any application to the Home Office, to minimise the risk of any adverse decisions and potential impact on future applications.
Other items to note
Besides summarising what the new UK immigration system means, other changes and information you might want to take a note of include:
- the Hong Kong (BNO) visa will formally be open to applications from 31 January 2021 – visa holders will be able to live, work and study without sponsorship
- to avoid potential discrimination claims, UK employers should not insist that EEA nationals provide proof of their status under the EU Settlement Scheme until after 30 June 2021
- it is expected that there will be a Statement of Changes announced in Spring, which amongst other things, will likely introduce the new “Graduate” visa route around Summer time – this seems to be similar in terms to the previous Tier 1 (Post Study Work) visa which was discontinued in 2012, and should allow graduates to work for up to 2 years under this proposed visa category, probably without sponsorship
First published: 22 January 2021
Further information
If you have any questions and/or would like tailored advice on any UK immigration matter, please speak to us at: hello@dixcartuk.com or to your usual Dixcart contact.
