In the world of UK immigration, we are always kept on our toes and it didn’t take long following the start of 2019 for some changes to become effective. From 28 January 2019, UK employers have been able to conduct online right to work checks on eligible prospective employees, rather than manual right to work checks. Notably, those with biometric residence cards, biometric residence permits, and/ or those issued with status under the EUSS (please see below) can provide a “share-code” to allow employers to conduct right to work checks digitally. Other prospective employees such as British citizen passport holders will need to have their original documents manually checked in the conventional manner.
KEY TIP: Carry out right to work checks on ALL prospective employees at the same stage, and PRIOR to their employment commencing. Don’t forget to diarise to conduct follow-up right to work checks where applicable.
Most obviously, Brexit did not take place on 29 March. However, on that day, the Tier 1 (Entrepreneur) visa category was closed to new applicants and replaced with the “Start-up” and “Innovator” visa categories. Applicants under these new visa categories require to have their business concept “approved” not by the Home Office but instead by Endorsing Bodies made up of qualifying businesses and universities.
The Tier 1 (Investor) visa category also saw some changes with new applicants no longer being able to invest in UK GILTs/ government bonds. In addition, the EU Settlement Scheme (EUSS) was fully open for applications from 30 March, where EEA nationals and their non-EEA family members could apply to stay under the UK rules.
KEY TIP: Businesses may wish to consider opening up dialogue with their EEA staff in the UK and encouraging them to submit free online applications under the EUSS.
From 20 May, non-EEA nationals coming to the UK are no longer required to complete a UK landing card. In addition, certain non-EEA nationals coming to the UK have been able to use ePassport gates just like British, EEA and Swiss citizens have been able to. Non-EEA nationals from the following countries with a suitable “chipped” passport can use the ePassport gates:
- New Zealand;
- South Korea; and
- the United States
KEY TIP: Use of ePassport gates means no stamp in the user’s passport. Non-EEA nationals coming to the UK under specific visa categories such as under a Permitted Paid Engagement basis MUST see an Immigration Officer to get a stamp in their passport to “activate” their visa (conditions). Employers may also wish to suggest that non-EEA nationals coming to the UK on their first work visa see an Immigration Officer.
The Tier 1 (Investor) visa category saw some further changes on 1 October. Applicants who had been able to invest in UK GILTs will only be able to continue to rely on this for extension applications submitted before 6 April 2023, and for settlement (indefinite leave to remain) applications submitted before 6 April 2025. Applications submitted after the respective dates will not be able to rely on GILTs and will need to transfer their funds into other acceptable investments.
There were also some changes to the Tier 1 (Exceptional Talent) visa category in terms of documents required and widening the range for eligible senior academic and research positions to qualify.
In addition, the Tier 2 (General) visa category also saw a number of changes. For instance, PhD level occupations were removed from the annual limit of 20,700 migrants permitted on the basis of a “Restricted Certificate of Sponsorship”. The Shortage Occupation List was also amended and the restriction preventing chefs from working for a sponsor that provides a takeaway service has been removed. Changes were also introduced to exclude penalising migrants from certain absences such as engaging in legal strike action.
KEY TIP: In most cases, it is possible to apply for indefinite leave to remain in the UK after living in the UK for 5 years in the same visa category. Broadly speaking, absences from the UK must be kept to 180 days or less in any 12-month period over those 5 years. Employers and employees alike are recommended to keep good records detailing the dates and reasons for absences.
Future immigration changes
With the Conservative party winning a majority in the General Election, Brexit is now almost certainly going to take place on 31 January 2020. If the UK leaves the EU without a deal, EEA nationals already living in the UK by that point will largely be unaffected. However, new arrivals after a no-deal Brexit takes places will likely have to apply for European Temporary Leave to Remain (a 3-year visa) and then apply for an appropriate UK visa. With the UK’s departure from the EU, many rights which currently apply, will eventually cease to have effect in the UK, including the Ankara Agreement which apply to Turkish nationals. If the UK leaves the EU with a signed deal, a transition period is expected to be in place until 31 December 2020.
Last December saw the publication of the highly anticipated Immigration White Paper which set out what the new immigration system would look like from late 2020/ early 2021 onwards, taking into account a new immigration system which would apply uniformly to EEA and non-EEA individuals alike. With the constant sound-bite of an “Australian-style Points Based System” being thrown about, it’s now less clear how/ if this will affect the new immigration system. However, non-EEA graduates from British universities are set to benefit from a “Graduate” visa route which will operate similarly under the historic “Post-Study Work” visa category, although it’s not expected to be open to applications until the summer of 2021.
KEY TIP: We can assist with all matters of business and personal immigration including assisting with right to work checks/ procedures; maintenance of a Tier 2 sponsor licence; and visa applications for individuals across the UK immigration system. If you have any questions and/or would like to subscribe to the immigration newsletter, please do not hesitate to contact Vincent Chung: firstname.lastname@example.org