Tag Archive: Hong Kong BN(O) visa

  • 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:

    1. a non-tiered points-based system (PBS); and
    2. 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 termsNew terms
    Leave to enterPermission to enter
    Leave to remainPermission 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.

  • Checking a job applicant’s right to work

    UK employers and HR departments will be mindful of the need to carry out compliant right to work checks on all prospective employees, before employment commences. In some cases, it would be appropriate to conduct follow-up right to work checks, for instance on individuals with time-limited immigration permission. It is important to have appropriate procedures in place to remind you to conduct the initial check, and follow-up check where applicable.

    By doing so, and retaining compliant evidence which captures all the relevant information, UK employers can mitigate their risks and establish a statutory excuse against a civil penalty of up to £10,000 per illegal worker, if it turns out your employee(s) do not have a right to work in the UK.

    Manual check

    This can be done manually, by physically checking the original document and comparing the details to the individual it belongs to.

    Employer Checking Service

    Where a prospective or current employee cannot provide any documents or prove they have a right to work, it is possible to use the online Employer Checking Service. This is a free online tool which can help employer’s establish a time-limited statutory excuse.

    Online check

    Since January 2019, it has been possible for employers to use a different online portal to check for free, whether someone has a right to work, by being provided with a “share code”. This online portal can’t be used for everybody, such as British citizens, in which case a manual or other relevant check ought to be carried out instead.

    On the other hand, for some individuals, in the near future, this will be the only method an employer can check an individual’s right to work. For instance, those who have been granted status under the EU Settlement Scheme and those who are granted status under the future Hong Kong BN(O) visa category.

    Temporary adjusted checks due to COVID-19

    At the height of the current pandemic, the Home Office introduced temporary adjusted checks, which allows employers to rely on scans/ photos of documents and conducting checks via video calls. However, employers who use this method will require to carry out retrospective checks once the temporary adjusted measures come to an end. Both the initial temporary adjust checks and retrospective checks will need to be retained.

    Other items to note – UK immigration changes

    Besides a summary on the methods of conducting a right to work check, other changes and information you might want to take a note of include:

    • The Tier 2 Sponsor Guidance and Tier 2 Policy Guidance were updated this month to clarify eligibility for the Health and Care visa for key health workers. Even if the fast-track Health and Care visa doesn’t apply, Sponsors should still take this opportunity to check the new guidance to ensure continued compliance with their sponsor obligations.
    • The introduction of the Student and Child Student visas on 5 October 2020. These effectively replace the “Tier 4 (General)” and “Tier 4 (Child)” visa categories respectively. Migrants who hold a Student/ Tier 4 (General) visa may be able to work up to 20 hours per week for an UK employer during term-time, and full-time hours outside term-time. Employers ought to retain additional compliant right to work documents.
    • The increase of the Immigration Health Surcharge on 27 October 2020, from £400 per year to £627 per year, for visa applications submitted on/ after this date. Some migrants such as those under 18, Students, and those applying for a Tier 5 (Youth Mobility Scheme) visa, aka Working holiday visa, will pay a lower increase of £470 per year.
    • From 1 December 2020, UK employers with a Tier 2 (General) sponsor licence or Tier 2 (Intra-company Transfer) sponsor licence will be able to sponsor migrants under its successors, the Skilled Worker route, and the Intra-company Transfer route. These routes can be used to sponsor non-EEA nationals. As EU free movement rights are due to end with the Transition Period at 11pm on 31 December 2020, new EEA nationals to the UK can also be sponsored under the new Skilled Worker or Intra-company Transfer routes after this date.
    • The Migration Advisory Committee recently published their Review of the shortage occupation list: 2020. Over 150 of occupations skilled at RQF Level 3-5 have been added, of which 20 of these are on the “UK-wide” list. It appears that the Home Office has not accepted all of these recommendations in the new rules which take effect on 1 December 2020 for the new points based system.
    • At the end of the Transition Period, the UK will no longer be obliged to give Turkish nationals preferential treatment under the Ankara Agreement. New rules, which largely replicate the current provisions for Turkish nationals already in the UK will take effect at 11pm on 31 December 2020.
    • The new Hong Kong BN(O) visa route will go live on 31 January 2021. This will allow a British National (Overseas) citizen to apply for this visa to live and work in the UK for up to 5-years. For more information on the Hong Kong BN(O) visa, please see here.

    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.