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The UK's post-Brexit immigration system

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Overview of the changes to the UK’s immigration system from 2021

Immigration expert Roisin Patton gives a brief overview of the changes to the UK’s immigration system post-Brexit.

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The UK’s post-Brexit immigration system – recruiting and retaining talent from 1 January 2021

Whilst Brexit may not be at the forefront of business’ minds during a global pandemic, EU free movement will end on 31 December 2020. The UK’s new immigration system is due to be introduced from 1 January 2021 and this will apply to both EU and non-EU workers.

The way in which organisations recruit from overseas is going to change so watch our immigration experts discuss:

  • The changes that will be made to the UK’s current points based immigration system;
  • How this will affect organisations that currently hold a sponsor licence;
  • The circumstances in which a sponsor licence will be required in the future;
  • What you need to know about employing individuals who require a visa under the new system from January 2021; and
  • How to plan for and practical steps to take now to prepare for this new immigration system.
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What is the average timeframe to gain sponsorship?

Most applications (8 out of 10) are dealt with in less than 8 weeks. This can take longer is UKVI need to carry out a compliance visit before dealing with your application.

Is this likely to change as we move towards the transition on 1st January?

Realistically it is likely that the processing time for sponsor licence applications will be extended from November onwards as more and more organisations submit their applications and the UKVI resource becomes overstretched. It is therefore sensible to apply sooner, rather than later.

If we recruit relatively low numbers of people, is it worth paying to be a sponsor?

There are plenty of smaller businesses who have a sponsor licence whether it is because they work in an industry with skills gap or in some circumstances they have wanted to make a job offer to a student who has carried out work experience. It is a costly application and there are ongoing costs so the commercial aspect should always be considered but it’s key to note that from 1 January 2021 you will not be able to hire someone who needs sponsorship without a licence.

We are a NHS Trust with a subsidiary company who provide estates and facilities service to the Trust. Will they need their own sponsorship licence or due to the fact that the company is whole owned by the Trust could the Trust sponsor the individual?

When you apply for a sponsor licence you are able to choose which entities to apply for and this can include subsidiary companies as a ‘branch’ of the ‘head office’. Depending on the circumstances, you may well be able to hold one licence which covers numerous employers.

Is there a cost for applying for a sponsor licence?

Yes and it depends on whether you are a small sponsors or a medium/large sponsor.

You’re usually a small sponsor if:

  • your annual turnover is £10.2 million or less
  • you have 50 employees or fewer.

The current fees are set out below:

Type of licenceFee for small or charitable sponsorsFee for medium or large sponsors
Tier 2£536£1,476
Tier 5£536£536
Tier 2 and Tier 5£536£1,476
Add a Tier 2 to an existing Tier 5No fee£940
Add a Tier 5 to an existing Tier 2No feeNo fee

Sponsorship process

From January 2021, will we not need to advertise the role to be sponsored or create a full pack for the role in case of a UKVI audit?

Under the new immigration rules the Resident Labour Market Test (RMLT) is being abolished. There will no longer be the requirement to advertise a vacancy or keep evidence of doing so.

In your professional opinion do you think the likes of lower level manufacturing and healthcare roles could be reconsidered in the future?

This could be a possibility if the impact of the new system is demonstrably detrimental to certain industries. We won’t have a clear indication of the impact until well into 2021 and beyond. It is best to plan on the basis that the changes will be permanent for now.

What are the re-branded names for the Tier 2 General visa and the Tier 2 Intra-Company Transfer visa from 1 January 2021?

They will know be known as a ‘Skilled Worker visa’ and an ‘Intra-Company Transfer visa’ respectively.

If we recruit prior to 1 January 2020 but their employment won’t start until after this date, when should we start the CoS application?

If you are recruiting staff now to start after 1 January 2020 when you start the CoS application will depend on whether you need an unrestricted CoS or a restricted CoS:

  • If you need a Restricted CoS, you will need to apply in the monthly allocation as normal. You can only apply for a RCoS if you intend to assign it to the individual, no more than 3 months after the date it is received by you. Once assigned, the individual then has 3 months to apply for their visa.
  • If you need an Unrestricted CoS, if you already have one available in the SMS, that’s fine. If however you will need more, you should apply for these asap as they can take up to 18 weeks to be granted. Once a UCoS has been assigned, the individual has 3 months to use it to make their visa application.

Will organisations need to increase their CoS allocation now, ready for 1 January 2021?

Currently, Restricted CoS’s have to be applied for in the monthly allocation as and when you need them.

Unrestricted CoS allocations are applied for by April of each year but you can apply for additional Unrestricted CoS throughout the year. If you know now that you will need additional Unrestricted CoS before April 2021, you should apply for these now using the Sponsor Management System.

Doctors and Nurses are currently on the Shortage Occupation List, will that continue or will that change? Especially with regards to proving the RLMT?

The Shortage Occupation List was last reviewed in 2019 and is not currently under review. It is therefore expected that Medical Practitioners and Nurses will remain on there for the time being. If the role is on the List, you are exempt from carrying out the RLMT, except for Nurses. The RLMT still needs to be carried out before you can sponsor a Nurse.

From 1 January 2021 the RLMT is being abolished and won’t need to be carried out, regardless of whether the role is on the Shortage Occupation List or not.

Can an Intra-Company Transfer visa be transferred to a Skilled Worker visa at a later date?

Under the current immigration rules applications are subject to a 12 month “cooling off” period whereby Tier 2 Intra-Company Transfer visa holders cannot apply for another Tier 2 visa for at least 12 months from the date they leave the UK. Under the new immigration rules, from 1st January 2021 the “cooling-off” period is expected to be removed which is welcome news. From this point it should be easier to apply for a Skilled Worker visa from an Intra-Company Transfer visa.

Health and Social Care Visa

Does the Health and Care Visa come into effect from August this year or next?

Sponsors can issue certificates of sponsorship for this visa with immediate effect and individuals can apply for this visa from 4 August 2020.

Do you have any further info on the Health and Social Care Visas?

Please see the visa guidelines hub here for additional information on this visa

Is the Health and Care Visa inclusive of pharmacists and other pharmacy staff?

The full list of SOC Codes which can be sponsored under the new Health and Care visa are:

  • 2112 – Biological scientists and biochemists
  • 2113 – Physical Scientists
  • 2211 – Medical Practitioners
  • 2212 – Psychologists
  • 2213 – Pharmacists
  • 2214 – Ophthalmic Opticians
  • 2215 – Dental practitioners
  • 2217 – Medical Radiographers
  • 2218 – Podiatrists
  • 2219 – Health Professionals not elsewhere classified
  • 2221 – Physiotherapists
  • 2222 – Occupational Therapists
  • 2223 – Speech and Language Therapists
  • 2229 – Therapy professionals not elsewhere classified
  • 2231 – Nurses
  • 2232 – Midwives
  • 2442 – Social Workers
  • 3213 – Paramedics

Is it correct that individuals coming via the new Health and Care visa cannot then apply for ILR? If so, can they still apply under the usual Tier 2 General route?

People working in the UK under a Health and Care visa will be able to apply for indefinite leave to remain once they have lived in the UK for a period of 5 continuous years.

Further information on indefinite leave to remain can be found on our hub here

Is the Health & Care visa exempt from the Immigration Skills Charge and/or the Immigration Healthcare Surcharge? If so, from what date?

Anyone applying through the health and care visa will be exempt from the Immigration Health Surcharge from the date of launch of the new visa (4 August 2020). In addition, any health and social care staff already in the UK who paid the IHS on or after 31 March 2020 will be entitled to reimbursement. Employers will still need to pay the Immigration Skills Charge for employees who are applying to work in the UK for more than 6 months (if applying from outside of the UK) or if the employee is applying from within the UK the charge is payable regardless of the length of time they are applying for.

Shortage Occupation List

Review of the Shortage Occupation List: 2020

The Migration Advisory Committee (“MAC”) has published its review of the Shortage Occupation List (“SoL”) which can be found here. It is expected that the MAC’s recommendations will be accepted by UK Visas and Immigration and an updated SoL implemented in due course.

What is the SoL?

The SoL is a list of occupations which cannot be filled with enough skilled workers who live in the UK in that particular sector. It aims to highlight those jobs suffering shortages which can be filled by employer sponsorship of non-EEA migrants.

How often are changes made to the SoL?

The MAC regularly reviews the SoL and requests for evidence of which occupations should be included or removed. Its last review was conducted in 2019 in which medical practitioners and other workers in the healthcare sector were added to the list.

The 2020 MAC report has highlighted how there should be a combination of minor and major reviews in the future. Minor reviews would occur annually to allow updated evidence to be submitted that may provide a compelling case for certain occupations to be included on the SoL and to flag occupations that may no longer need to be on the SoL. Major reviews would occur every three years in which all occupations would be effectively removed and reconsidered.

As such, the MAC has advised that its next SoL review should be a minor review in Autumn 2021.

How is the SoL relevant under the current immigration system?

The occupations on the SoL are subject to different and more favourable immigration rules. This is to make it easier and quicker for UK employers to access and sponsor non-EEA workers who are needed to fill vacancies in those sectors listed on the SoL. These rules are:

  • Resident Labour Market Test (“RLMT”) – a RLMT does not need to be carried out before sponsoring for a job on the SoL (except for nurses) which means that employers will not need to show that they have attempted to recruit the position within the UK before employing a migrant.
  • Salary threshold – the minimum salary requirement for indefinite leave to remain (“ILR”) is also waived if the job has been on the SoL in the previous five years. However, SoL roles still have to meet the same salary threshold as Tier 2 (General) visa applicants. This is £30,000 per year or the “appropriate rate” for the job in the Standard Occupational Classification code, whichever is highest.
  • Priority – the number of visas available through the Tier 2 (General) visa route is limited to 20,700 per year. Occupations on the SoL are automatically given preferential treatment such that you are almost certain to receive a Restricted CoS for a job on the SoL.
  • Fees – applicants and their dependants will pay lower visa application fees if their role is on the SoL.

How will the SoL be relevant under the new 2021 immigration system?

Free movement between the UK and EU will end on 1 January 2021 and be replaced by the Skilled Worker route under the new points-based system which will apply to all non-UK nationals.

The updated SoL is expanded to include roles that are skilled to RQF Level 3 and above. Currently, only roles at RQF Level 6 or above are eligible for sponsorship under the Tier 2 (General) visa route. Under the new immigration system, the RLMT will no longer apply and the visa cap will be removed. This means that the benefits of sponsoring a role on the SoL will be:

  • Salary threshold – the salary thresholds will be fixed at £25,600 or the salary stated in the SOC Code, whichever is highest. However, the salary thresholds will vary for new entrants and workers in health and education. If the role is on the SoL, the employer can pay a salary that is up to 20% lower than the stipulated minimum salary unless it already qualifies for a lower threshold or has a threshold based on national pay scales. Those migrants who are sponsored in SoL roles will continue to be exempt from having to meet a higher salary threshold before being able to apply for ILR.
  • Fees – individuals who are sponsored in SoL roles will continue to benefit from lower visa fees.

What roles are expected to be added to the new SoL?

The MAC has recommended that around 70 entire occupations, or job titles within them, are included on the SOL, either at a UK-wide level or where particular to England, Northern Ireland, Scotland and Wales only. The key changes are:

RQF 6+ occupations

The MAC has recommended the inclusion of the following new occupations in the UK-wide SoL:

  • health services and public health managers and directors
  • pharmacists
  • physiotherapists
  • teachers – secondary education and teaching professionals – modern foreign language teachers only
  • health professionals (Wales SoL only)

As a result of the pressures on employers due to the Covid-19 pandemic, the MAC has not considered any FQF6+ occupations for removal from the SoL.

RQF 3-5 occupations

RQF 3-5 occupations will become eligible for the SoL under the new Skilled Worker route. The MAC has recommended that around 20 out of 151 occupations should be included in the SoL. These are:

  • nursing auxiliaries and assistants
  • residential, day and domiciliary care managers and proprietors
  • senior care workers
  • butchers
  • bricklayers and masons
  • deckhands on large fishing vessels (which are 9 meters and above)
  • horticultural trades (Northern Ireland SoL only)
  • fishing industry workers
  • data analysts and business analysts
  • nursery nurses and assistants (Scotland SoL only)
  • housing officers (Northern Ireland and Scotland SoL’s only)
  • childminders and related occupations (Scotland SoL only)
  • veterinary nurses
  • houseparents and residential wardens
  • meat hygiene inspectors (also known as official auxiliaries)
  • laboratory technicians
  • IT operation technicians
  • moulders, core makers and die casters
  • welding trades
  • metal working production and maintenance fitters
  • vehicle technicians, mechanics and electricians
  • electricians and electrical fitters
  • fire alarm technicians
  • electronics hardware design engineers

RQF 1-2 occupations

Occupations below RQF 3 are not eligible for the SoL because they are not part of the current Tier 2 (General) route and the future Skilled Worker route in the new immigration system.

EU settlement and Right to Work Checks

The Home Office website says: If you’re an EU, EEA, or Swiss citizen, you can continue to use your passport or national identity card to prove you can work in the UK until 30 June 2021. Between 1 January and 30 June 2021, how do we check if an EU national needs a visa or has the right to work?

Right to work checks will continue the same way as they do now until 30 June 2021 for EU, EEA and Swiss citizens. Such individuals can use the online right to work checking service under which they will be given a share code. The employer or prospective employer can then use the employer’s online service to check their right to work using this code.

Can we ask staff for evidence that they have applied under the EU Settlement Scheme?

Not until 1 July 2021. Employers cannot require workers or applicants to show their status under the EU Settlement Scheme until after 30 June 2020. It is the responsibility of the individual to make an application and there is no requirement for an employee to inform their employer whether they have made an application or the outcome of the application.

If an EU national has permanent residency already do they still have to sign up to the EU Settlement Scheme?

Yes, they need to apply to the EU Settlement Scheme to continue to live, work and study in the UK. They will then be granted settled status which means they should be able to spend up to 5 years in a row outside the UK without losing their settled status.

Individuals who have been granted indefinite leave to remain or enter do not have to apply but if they do so they will also be granted settled status allowing them to spend up to 5 years outside the UK instead of the 2 that is currently permitted.

If a new applicant (EU national) applies to an advertised role in January 2021, how do I know if I need to apply for a visa, or if they have registered under the EU Settlement Scheme if I can’t ask them?

It is acceptable to ask applicants to confirm whether they have a right to work in the UK. If the applicant confirms they have the right to work in the UK on their application form this should be verified by carrying out the relevant checks. Right to work checks should be carried out on all prospective employees prior to them commencing work and the required sponsor application should be made by the company if required.

Will current EU students apply for settlement status in the same way as EU workers?

Yes. EU students are able to apply under the EU Settlement Scheme in the same way as EU workers and they should do this by 30 June 2021. They will then either get settled status or pre-settled status and be able to use this to continue to live and work in the UK.

Who is advising EU nationals that they need to apply for the Settlement Scheme? UKVI?

The government and public sector organisations has widely publicised the need for EU nationals to apply under the EU Settlement Scheme by 30 June 2021. However there are still a lot of individuals who are not aware of this requirement and they will not be contacted directly. It is therefore recommended that you make your staff aware of this requirement as failure to register will mean that they cease to have the right to work after 30 June 2021.

Can you clarify the position on retrospective right to work checks post 1 July 2021 for individuals starting prior to that date?

Right to work checks should be carried out on all employees prior to the commencement of their employment. Employers will continue to be able to confirm an EEA national’s right to work using their passport, national ID card or the online right to work checking service up until 30 June 2021. From 1 July 2021 employers will need to be given proof of immigration status for all non UK resident workers, this will either be from the EU Settlement Scheme or the new immigration system. There is no requirement to undertake retrospective checks on existing EU employees.

In regards to ILR, does it matter if the ILR sticker is in an expired passport?

Yes. Where an individual with IRL has their status contained in an expired passport they should make a no time limit application for confirmation of their status in the form of a biometric residence permit (BRP).

Is it OK from Jan 2021 for an organisation to state that they will only hire new staff for low/non-skilled roles who have the right to work in the UK?

Employers should be mindful not to make any presumptions about an individual’s right to work in the UK as this could be seen as discriminatory. It would be better to phrase this as requiring applicants to be eligible to work in the UK. Applying a policy that may prevent individuals from applying because of their nationality could amount to discrimination.

Disclaimer

Given the fast pace of change, we would stress that this information is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

As a hub, we have included references to articles and explainers from third parties. We have no control over and are not responsible for the content, use by you or availability of those third party websites, for any products or services you buy through those sites or for the treatment of any personal information you provide to the third party.

Our immigration team

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Flora Mewies

Associate | Employment

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Roisin Patton

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Gillian Burns

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Newcastle

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Natalie Payne

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