New Statement of Changes to Immigration Rules published by the Home Office on 22 October 2020

Just as the discussions between the United Kingdom and the European Union are set to continue, with EU negotiator Michel Barnier arriving in London last Friday, on 22 October 2020, the Home Office published a substantial new Statement of Changes to the Immigration Rules (Statement). Many of the changes set out in the Statement are set to come into force shortly on 1 December 2020. The Statement was accompanied by an Explanatory Memorandum, both of which have been put before parliament and are subject to approval.

All non-British and non-Irish citizens will, from 1 January 2021, require valid immigration status to live, work and study in the UK.

Building on last week's article, this article focuses on some of the Statement's key changes that are likely to be of particular interest to employers, including changes to:

  1. The Skilled Worker route;
  2. The Intra-Company Transfer route;
  3. The Global Talent rules; and
  4. The English language and finance requirements.

The Skilled Worker Route

The Skilled Worker Route replaces the Tier 2 (General) visa rules currently in place. It forms the new points-based route for those who wish to apply for leave to remain in the UK for the purpose of working in a skilled job. Applicants must accrue 70 points in total, 50 of which are mandatory and made up of points for (i) their employer's sponsorship (20 points); (ii) a job at the appropriate skill level (20 points); and (iii) intermediate English language skills (10 points). The fundamental differences between the Skilled Worker route and the Tier 2 (General) route it replaces are summarised below:

Eligibility –The minimum skill threshold will be lowered from RQF level 6 (which required a bachelor's degree or equivalent) to RQF level 3 (roughly equivalent to A-levels or Scottish Highers), effectively unlocking this route for a greater number of individuals. There will continue to be no dedicated route for low skilled workers (defined as those with qualifications below the RQF 3 level).

Secondly, the general salary threshold will be reduced from £30,000 to £25,600 per annum. It is worth noting that an employer must pay their skilled workers a salary, which equals or exceeds both this threshold and the “going rate” for the occupation (whichever is higher). In certain circumstances, the salary threshold is reduced where the skilled worker is able to obtain 20 points by alternative means. This may be done where the worker, for example, has a PHD that is relevant to the job in question or the job is within a STEM subject (science, technology, engineering and mathematics), where there is a job shortage in an occupation or where a job is a listed health or education occupation.

Cap – The cap on restricted Certificates of Sponsorship, which currently applies under the Tier 2 (General) Rules is being suspended. Currently, the cap places a quota on the number of restricted Certificates of Sponsorship made each year so that no more than 20,700 are issued. The abolition of this cap is estimated to reduce the processing time for sponsoring skilled workers by up to four weeks.

The Resident Labour Market Test – The test, which requires employers to first advertise a vacancy to permanent UK residents, will no longer be required. The requirement for there to be a genuine vacancy shall continue but, this, again, is anticipated to improve the processing time of an application by up to four weeks.

New Entrants to the Labour Market – The current criteria to identify a new entrant to the UK labour market will be expanded to include those sponsored in postdoctoral research positions and those working towards professional qualifications, registration or chartered status.

Cooling-off Period and Maximum Stay – The Statement confirms that the requirement for a Tier 2 (General) migrant to wait 12 months after their Tier 2 visa expired before applying for a new Tier 2 visa has been abolished, as has the maximum 6 year period of stay on a Tier 2 visa.

The Intra-Company Transfer (ICT) Route

The two current Tier 2 (ICT) subcategories remain unchanged:

  1. For established employees being transferred by their employer to do a skilled role in the UK for that same employer or a company within the employer's company group;
  2. For employees being transferred by their employer to a role in the UK as part in a structured graduate training programme.

However, there are still some changes proposed under the Statement that will impact this visa route:

High-earners – Those earning £73,900 and above will now constitute "high earners". This has been reduced significantly from £120,000. High earners are also exempt from the requirement to have worked for the employer overseas for 12 months prior to entering the UK.

Cooling-off period – Previously, Tier 2 (ICT) visa holders had to leave the UK upon the expiry of their visa and then wait 12 months before applying for a further Tier 2 (ICT) visa. Under the Statement there will be no 12 month "cooling off" period. Instead:

  • Lower earners (those earning less than £73,900) must not hold a Tier 2 (ICT) visa for more than 5 years in a 6 year period; and
  • High earners (those earning at least £73,900) must not hold a Tier 2 (ICT) visa for more than 9 years in a 10 year period.

Change of Route – There shall be an increase in the cohorts of applicants in the UK who can apply under the ICT route when switching from another route. However, applicants must still satisfy the other applicable eligibility requirements. 

The Global Talent Rules

An applicant can apply for a Global Talent visa to work in the UK if they are a leader or potential leader in (i) academia or research; (ii) arts and culture; or (iii) digital technology. There have been two key changes to this route:

Senior appointments – the criteria for consideration of senior appointments, such as a professor, associate professor, reader or senior group leader, has been changed to include emerging leaders as well as those in a more advanced stage of their career.

Types of qualifying roles - The types of academic and research roles that qualify under this visa route are being expanded to include additional roles not previously stated in the Immigration Rules.

English Language and Finance

Many visa routes also require the applicant to prove that they have a suitable grasp of the English language and sufficient funds to sustain themselves whilst in the UK. As such, these are core aspects of the Immigration Rules. The Statement seeks to revise and provide greater consistency in the way applicants meet these requirements. The key changes are:

English language – The Statement clarifies that applicants need only prove the required level of English language once when making an application. In addition, the majority speaking English language country list will be updated to include Malta and also allow people with a degree from Ireland to rely on that as proof of English language ability. Finally, applicants who have gained GCSE/A Level or Scottish Highers in English while at school in the UK will now be allowed to rely on this to prove their English language ability for certain applications, including those made under the Skilled Worker route.

Maintenance requirements – The Immigration Rules no longer require certain applicants already in the UK (including Skilled Workers), who have met the maintenance requirement on their current route, to meet it again if they have been supporting themselves in the UK for more than a year. The requirement is also relaxed by permitting applicants to show they meet maintenance requirements by relying on a wider range of accounts.

Finance – The Statement aligns the timeframes applicants are required to show they have held funds for certain applications, including those made under the Skilled Worker route. Under the new rules, it is proposed that applicants will need to show that they have held the relevant funds for 28 days.

In addition, it is with great relief that the Statement confirms that it will no longer be necessary to persuade the ever reluctant banking community to certify bank statements for the purposes of immigration applications. Instead it will now be possible to rely on electronic bank statements as evidence that applicants meet the financial requirements of their applications, without requiring their bank to certify each and every page of the bank statements.

What does this mean for Employers?

The Statement does set out a slight relaxation of the points-based system for those routes discussed above. However, with no provisions for low-skilled workers and a lack of flexibility still present in the new Immigration Rules, there remain rigid restrictions in place, which may cause challenges for employers who wish to employ non-British or non-Irish citizens when the new Immigration Rules come into force at 9.00am on 1 December 2020. Where an application for leave to remain is made prior to this date, it will be decided in accordance with the Immigration Rules in place on 30 November 2020.

As such, where looking to employ an EEA citizen (excluding Irish citizens), the EU Settlement Scheme remains the simplest option. Employers therefore should be mindful that EEA citizens must be resident in the UK by 11pm on 31 December 2020 to be eligible to make an application under the Scheme. Consequently, employers may wish to consider bringing forward start dates of new EEA citizen recruits, so that their new employees meet the Scheme's residency requirements.

In situations where the EU Settlement Scheme is not an option, an employer should carefully plan any applications under the new Immigration Rules in advance to ensure that they and the affected (prospective) employee can satisfy the applicable visa requirements. These should also be discussed in advance with the affected (prospective) employee.

Finally, whilst the new Immigration Rules are still yet to obtain final approval from Parliament, we anticipate that any further changes will be minimal. We will monitor any progress and update this article as required. For any queries on the new Immigration Rules or the changes discussed in this article, please contact Lynsey Blyth or Siobhan Murphy.