The new UK immigration system takes effect

The changes have been driven by two key motivating factors. Firstly, the need to adapt the UK’s immigration system to incorporate EU nationals coming to the UK after free movement ceases, with the end of the Brexit transition period on 31 December, 2020.  Secondly, the government pledged to introduce an ‘Australian-style points-based system to control immigration’ in its 2019 manifesto.

Main changes under the new system:

• Some key points that employers and sponsors should be aware of under the Skilled Worker and Intra-Company Transfer (ICT) routes include:
• The skill threshold for permissible sponsored roles has reduced from RQF 6 (degree level) to RQF 3 (A-Level). This significantly increases the scope of the route and the pool of overseas talent from which sponsors may recruit.
  The general salary threshold for the Skilled Worker route has been significantly reduced – however, the relevant occupational salary thresholds must still be met (meaning that for many roles the reduction to the general threshold will have no effect). Different thresholds apply depending on the points which can be attained by the applicant and sponsors will need to ensure that they have identified the correct threshold.
• Under the Skilled Worker route, the Resident Labour Market Test (advertising the vacancy in the UK) has been abolished, making sponsorship easier/faster – however compliance obligations may often mean that evidence of recruitment efforts, including any advertising, still need to be maintained.
• The cap on the number of sponsored migrants permitted per month/year has been ‘suspended’.
• It is now possible for most individuals to switch to Skilled Worker from within the UK (instead of having to return to their country of origin to apply). This includes individuals with permission under the former ICT route (which does not lead to settlement) who may now switch from within the UK into the Skilled Worker route (which leads to settlement).
• Sponsors will continue to be subject to most of the same sponsor duties which they were previously subject to, with the addition of some brand-new sponsor duties.

A more comprehensive list of changes is as follows:

Skilled Worker

This route replaces the Tier 2 (General) category, and the following changes have come into effect:

• reduction of the skills threshold from level 6 of the Regulated Qualifications Framework (RQF) (equivalent to degree level roles) to level 3 (equivalent to A-level educated roles);
• removal of cap on number of skilled workers;
• scrapping of the Resident Labour Market Test;
• scrapping of the six-year maximum stay in the UK under this route;
• scrapping of the 12 month ‘cooling-off’ period;
• reduction of the minimum salary threshold; and
• introduction of ‘tradeable points’ where the role does not meet the general minimum salary threshold or the going rate for the role, but the role is on the shortage occupation list, the applicant has a relevant PhD or is a new entrant.
• For individuals who wish to work in the UK under the Skilled Worker route, a total of 70 points is needed to apply. All applicants must demonstrate they have a job offer from an approved sponsor (20 points), the proposed role is at the required skill level (20 points) and that they speak English (10 points).

The further 20 points required to apply under this route can be earned by either meeting the general minimum gross annual salary threshold of £25,600 (was £30,000) or by ‘trading’ points where the salary is less than the minimum salary threshold but at least £20,480. In the absence of the required minimum salary, points can still be awarded, ie ‘traded’, where the role is on the specified shortage occupation list; the individual holds a PhD in a subject relevant to the role; or the applicant is considered a new entrant. Note however that the minimum salary thresholds under the Standard Occupational Classification (SOC) code for a role still applies. In certain instances, the minimum salary required by the relevant SOC code will be higher than the general threshold and therefore this higher rate must be met.

The higher minimum salary threshold for applications for indefinite leave to remain (ILR, also known as ‘settlement’ applications) in the UK has also been removed.  Now, applicants must be earning a minimum gross annual salary of £25,600 or at least the SOC code rate, whichever is higher. Tradeable points will not apply for these applications.

Individuals will only be eligible for tradeable points for holding a PhD if they are applying to be sponsored in one of the specified occupations – these are STEM roles and highly skilled roles which fall within the Home Office’s ‘top skill level’ list. In addition, it will be up to the sponsor to provide a credible explanation that the PhD is relevant to the role.

To be considered a ‘new entrant’ the applicant must meet one of the following criteria:

• be switching from the Student, Tier 1 (Graduate Entrepreneur) and Graduate routes;
• be under the age of 26 on the date of the application;
• the job offer is for a postdoctoral position;
• the applicant is working towards a recognised professional qualification in a UK-regulated profession; or
• the applicant is working towards full registration or chartered status with the relevant professional body for the job they are sponsored for.
• There are also various transitional arrangements in place for those who held/hold UK immigration permission under Tier 2 (General) and now wish to make a subsequent application under the Skilled Worker route.

The Skilled Worker route is one which can lead to settlement and British citizenship in the UK. Eligible individuals are now able to switch into the Skilled Worker route from most other UK immigration routes.

Intra-Company Transfer (ICT)

The former Tier 2 (ICT) category has essentially been kept as it is in all but title, being re-branded to simply ICT. The minimum skill level remains at RQF level 6, ie degree level and the minimum salary threshold of £41,500 is unchanged. The sub-route for graduates has also remained.

The primary substantive change to this route is the amendment to what is known as the ‘cooling-off period’. Under the new system, ICT migrants must hold permission under this route for more than five years in any six-year period. If the migrant is a high earner (earns a gross annual salary of at least £73,900), they must not hold permission under this route for more than nine years in any ten-year period and are exempt from meeting the 12 month prior employment requirement.

The ICT route does not lead to settlement in the UK. However, individuals are now permitted to switch into the Skilled Worker route and possibly other routes which do lead to settlement in the UK.

Global Talent

This is a route for highly-talented and promising individuals in the fields of science, technology, engineering, medicine, humanities, culture and the arts to live and work in the UK.  In comparison to other immigration categories, it is subject to a few restrictions. There are two sub-routes: exceptional talent applicants must be established as leaders in their field and exceptional promise applicants must have shown potential to become leaders in their field.

Applications under Global Talent involve a two-stage process. Applicants must first apply for an endorsement from a Home Office approved endorsing body and, once the endorsement is granted, must then apply for immigration permission in the UK within three months.

 Start-up & Innovator

The Start-up route is aimed at new entrepreneurs seeking to establish a business in the UK for the first time, whereas the Innovator category creates a route for experienced entrepreneurs to establish an innovative business in the UK, subject to having at least £50,000 available to invest in their new business. Applicants must be able to show that they have an innovative, viable, and scalable business idea which is supported by an approved endorsing body.

Student

This category opened on 5 October 2020. Applicants are required to demonstrate that they have an offer from an approved educational institution, speak English, and are able to support themselves for the duration of their course in the UK.

Applicants are able to submit their applications up to six months before the start of their course and evidentiary requirements have been relaxed. Under this new route, there is no longer a time limit on the length of time which an individual may study at post-graduate level in the UK.

Applicants are only permitted to have dependents under this route if the applicant is studying at post-graduate level for at least nine months or if they have been sponsored by a government to study a course longer than six months.

Other categories

The Home Office retained most of the other routes which previously existed, which are now open to EU nationals as part of the new PBS. The rules of these routes are generally unchanged. These routes include:

• Appendix FM – for applicants who are the family members of a British citizen or a person settled in the UK and wish to join their family member in the UK;
• EU Settlement Scheme (EUSS) – for EU citizens and their family members to remain in the UK beyond the end of the transition period on 31 December 2020;
• Tier 1 (Investor) – for applicants who hold at least £2 million of their own funds which are: under their control, held in a regulated financial institution, and are disposable within the UK;
• Representative of an Overseas Business – for representatives who are being posted to the UK to establish a branch or subsidiary of a foreign business;
• UK Ancestry – for Commonwealth citizens who have a grandparent who was born in the UK;
• T2 Ministers of Religion – long term permission for people in leading roles in faith institutions, e.g. undertaking preaching and pastoral work, Missionaries or Members of a Religious Order who are taking up employment or a post/role within a faith community in the UK;
• T2 Sportsperson – for elite sportspersons or qualified coaches who are sponsored on a long-term contract to make a significant contribution to the development of sport at the highest level in the UK;
• T5 Creative – for highly skilled workers who have a job offer in the creative sector, e.g. as a musician, model, or actor;
• T5 Sporting – for a range of sportspersons who are making a significant contribution to their sport at the highest level in the UK;
• T5 Charity – for people coming to the UK to do voluntary work and not paid work for a charity;
• T5 Religious Workers – short term permission for people coming to the UK to support the activities of religious institutions through non-pastoral duties;
• T5 International Agreement – for people coming to the UK under contract to provide a service that is covered under international law;
• T5 Government Authorised Exchange – for workers coming to the UK through an approved government scheme in order to undertake work experience, training, academic research or a fellowship; and
• T5 Youth Mobility Scheme – for individuals from Australia, Canada, Japan, Monaco, New Zealand, Hong Kong, South Korea, Taiwan and San Marino, aged between 18 and 30 who wish to study and/or work for any employer in the UK for up to two years.

Other general changes

The new ‘Appendix Continuous Residence’ has been introduced. This Appendix clarifies that for settlement applications, applicants must not spend more than 180 days outside the UK in any 12-month period during the relevant qualifying residence period in order to be eligible. It also clarifies certain exceptions to this rule, including a new exception for ‘travel disruption due to pandemic’.