The Government is planning the future UK immigration system for 2021. In part 1 and part 2 of our White Paper review series, we considered the proposals for the Student, Post-Study Work, Entrepreneur, Graduate Entrepreneur, Start-Up, Innovator and Exceptional Talent immigration routes. In part 3, we explore what the future may be for workers seeking to come to the UK and for the organisations they will work for.
Effective from January 2021, the Government has proposed that there will be a number of changes to enable overseas workers to come to the UK.
These can be categorised into three main groups:
- skilled workers
- specialists
- temporary short-term workers (for a transitional period only)
These routes will be in addition to the Entrepreneur, Graduate Entrepreneur, Exceptional Talent and the new Start-Up and Innovator routes.
We explore the proposals in more detail below. In addition, we take a look at what the future may mean for businesses, universities, schools, charities and other organisations in the UK that are, or will need to become, sponsors.
The current immigration system for workers
In brief, under the current immigration system the main immigration routes for non-EEA nationals who need to come to the UK for work purposes are under Tiers 2 and 5 of the Points Based System.
This is unless the individual qualifies for a visa in their own right (for example, under the ancestry route, Youth Mobility Scheme, etc.)
EEA citizens can of course currently work in the UK without requiring any kind of immigration permission. Our Brexit immigration information contains up to date information for EEA citizens and their employers.
The new immigration system for workers
At the end of last year, the Government set out its proposals for the UK’s new immigration system which is due to come into effect, for the main part, from January 2021. The proposals are contained in the White Paper (Cm 9722), entitled ‘The UK’s future skills-based immigration system’.
The Government’s position is that EEA citizens who come to the UK for work purposes from January 2021 onwards will be covered by the same immigration system as non-EEA nationals.
It is important to note that the current Tier 2 and 5 routes can be used for employees and non-employees in certain scenarios and we are not expecting that to change.
Skilled workers
The proposals concerning skilled workers indicate that the future system should be less complicated and less restrictive than the current Tier 2 skilled worker sponsorship system. This is welcome news.
Those entering under the skilled worker route will:
- need to meet an English language requirement*;
- be able to bring family to the UK;
- be unable to access public funds;
- be entitled to use the NHS (the Immigration Health Surcharge will apply unless reciprocal arrangements are agreed)
- be able to settle in the UK on a permanent basis*.
*other than those entering via the intra-company transfer route.
More roles to be available for skilled workers
Under the current Tier 2 route, other than in relation to a small number of exceptions, roles available to non-EEA skilled workers who need to be sponsored must be at level 6 of the Regulated Qualification Framework (RQF). These are generally referred to as ‘graduate level roles’, even though the candidate does not have to possess a degree-level qualification.
Under the new system, roles from level 3 RQF are to become available under the skilled worker route (but not the ICT route which looks set to keep the minimum level 6 skills requirement). This will mean that hundreds of additional roles will become eligible for sponsorship.
No more caps
Currently, only 20,700 Restricted Certificates of Sponsorship are available each year for skilled workers. This cap will be removed and there will be ‘no limits on the volumes of skilled migrants to meet the needs of businesses and the UK economy’.
The end of the Resident Labour Market Test
At the moment, other than where an exception applies, employers must advertise the role in accordance with UKVI”s requirements. This is called the Resident Labour Market Test (RLMT).
The RLMT will not be carried over to the new system.
The Government has stated that: ‘‘Abolishing the RLMT will significantly speed up the process for UK employers of recruiting migrant workers, as vacancies will no longer have to be advertised for four weeks before being offered to a migrant.’
Job offers will be able to be made immediately to non-UK candidates who meet the other requirements for the route.
Minimum salary requirement
The minimum salary requirement under Tier 2 (General) is currently £30,000. This is unless the worker meets the rules for ‘new entrants’ in which case the minimum salary is £20,800.
The Government has not made a decision yet on the minimum salary that will be applied under the new system. It wishes to ‘engage extensively with businesses and employers, consider wider evidence of the impact on the economy, and take into account current pay levels in the UK economy’ before setting the minimum salary level under the new system.
The White Paper does not contain any indications that the minimum salary level for ICT roles, currently £41,500 for long-term staff, is to be reduced.
In-country switching from visitor status
At the moment, it is not possible for a non-EEA national to enter the UK as a visitor and switch into Tier 2 from inside the country.
The Government has stated that it will allow nationals of countries that it has reached bilateral trade agreements with to enter the UK under the visitor category to seek work, and then switch inside the UK into the skilled worker category.
Intra-company transfers
There appear to be no significant changes on the horizon for those who will enter the UK under the ICT route.
With the removal of the RLMT and the other changes to the main skilled worker route as described above, there will be less incentive to use the ICT route. There will still be a use for it in relation to those workers who are unable to meet the English language requirement.
Sponsorship
Those seeking to work in the UK under the skilled worker route will need to be sponsored.
At the moment there are just under 30,000 businesses, universities, schools, charities and other organisations in the UK that hold a Tier 2/5 sponsor licence. If EEA citizens arriving in the UK from January 2021 for skilled work will all need to be sponsored, potentially hundreds of thousands more organisations will need access to the sponsorship system.
The Government has recognised that a potentially complex task lays ahead and it has indicated that sponsorship may be available in three ways:
- via direct sponsorship, with the organisation holding its own sponsor licence – trusted sponsors will benefit from a ‘lighter-touch’ approach; or
- via ‘transaction’ sponsorship, described in the White Paper as being for those organisations that do not need a sponsor licence of their own or have a small number of vacancies to fill; or
- via umbrella sponsorship – which we expect may be similar to how the current Tier 5 Government Authorised Exchange Scheme works. Our head of immigration Nichola Carter wrote about the scheme and explained the idea of overarching sponsors in her recent Free Movement blog here.
It has also stated that it will extensively reform sponsorship.
The proposals for the reform of sponsorship are welcome and have the potential to significantly reduce the current burdens users of the system face.
Organisations should be aware that the Government does intend to continue to require sponsors to act in accordance with their sponsor duties and will undertake checks including ‘retrospective compliance checks’.
Sponsors will also still need to pay the Immigration Skills Charge (ISC) where applicable.
Specialists
The Government has proposed that there will be wider opportunities to attract specialists and those who are talented in a particular field to the UK.
Scientists and researchers
The White Paper contains a proposal to ensure that those such as ‘scientific researchers…who have a proven track record of success in their industry and those with post doctorate qualifications‘ are ‘appropriately accommodated by the system’.
It is also confirms that there will continue to be opportunities for ‘talented scientists and researchers who make a significant contribution to international collaborations’.
Other talent and expertise
The White Paper also specifically refers to professional sportspersons, entertainers, musicians and artists. The Government has proposed that the existing Temporary Worker routes that exist will be improved, ‘taking into account feedback from specific sectors.’
It proposes that the Government Authorised Exchange schemes (of which there are currently more than 60) will be consolidated and rebranded to ‘promote the wide-ranging opportunities available.’
The White Paper also confirms that the Government expects the UK to be bound by its various current, and future, commitments under international bilateral trade agreements and under GATS. Less restrictive immigration requirements are applied to those entering as a result of such arrangements.
There is also a suggestion that the Youth Mobility Scheme could be expanded to cover EU nationals and other key partners.
The Government has also proposed that it will increase the number of places available under the Tier 1 (Exceptional Talent) category and to launch a new Start-Up visa. We considered these proposals in part 1 of our review. The Government does state, in the section of the White Paper dealing with workers, that it will consider how these routes could accommodate workers who invest in a newly created business. This would be a welcome proposal given that the current system is extremely restrictive.
Temporary short-term workers
A new 12-month temporary short-term worker category is to be rolled out.
This is primarily to assist organisations that may be unable to attract migrant workers under the skilled and specialist worker routes. Up until now, these have relied heavily on workers from the EU. The route does have much wider potential however for a range of short-term workers.
Transitional scheme
The new route is scheduled to be operational from 2021 until 2025, at which point it will be reviewed. The Government has made it clear that this is only a transitional route and that it retains ‘the ability to close the route if economic conditions warrant that’.
Whilst open, the route will be available to individuals from certain specified ‘low risk’ countries, as yet to be defined.
Flexibility
The route will be open to workers of all skill levels and a sponsor will not be needed.
Individuals will have to apply for and receive permission from the Government to be a short-term worker before they can start work. We expect this to be a fairly straightforward application process.
Once the worker has permission, they will be free to take any work opportunities they wish and will be able to change employers as often they wish.
To avoid illegal working sanctions, employers will need to check, before the work commences, that the individual has obtained permission before the employment commences. They will only be able to employ the individual for as long as they have leave to remain in this route. We believe that it is most likely that such checks would be made using the new online right to work checking process.
Restrictions
The short term worker route will enable individuals to come to the UK for a maximum of 12 months. At the end of the 12 months, they will be subject to a ‘cooling off period’. This will mean that they would not be able to return to the UK under the same category within that time.
This route is designed for short-term work only. It is therefore subject to a number of restrictions:
- not being able to settle in the UK;
- not having access to public funds; and
- not being able to switch to a different category of leave from within the UK;
- dependants unable to join.
The next step – prepare for engagement
The Government has stated throughout the White Paper that it intends to engage extensively on these proposals. This is before it lays the Immigration Rules that will be needed in order to implement the new system.
The new system is due to be operational in just over 22 months.
It is therefore essential that organisations that may need talent from overseas from 2021 start to consider, at this stage, what their needs are likely to be. This will assist with effective Government engagement.
How we can assist
We work with a wide range of businesses, universities, schools, charities and other organisations and provide support and assistance regarding the immigration and sponsorship rules for them and their workers. We also run training sessions and workshops for HR teams and others who need to navigate the system.
If you would like further information about any aspect of UK immigration law or about our services, please contact us.
