Changes to Immigration Rules
23 March 2021
On 4 March 2021, the Home Office published another set of changes to the Immigration Rules.
New Graduate route
The Government announced the new Graduate visa route a long time ago. This will finally open for applications on 1 July 2021. The route is specifically for international students who have successfully completed a degree at a UK higher education institution.
How long you can stay on the Graduate Route depends on your qualification; those with a bachelor’s or Master’s degree can live and work in the UK for up to two years while PhD graduates can live and work in the UK for up to three years. During this time there is no requirement for the work to be at a specific skill level or to attract a minimum salary. The route is designed to allow graduates sufficient experience to find sponsored employment at the end of their Graduate leave.
Applications for the Graduate route must be made within the UK while a student still has a valid Student or Tier 4 visa. Unfortunately, international students with a Tier 4 or Student Visa that expires before 1 July 2021 will not be eligible to apply. It is anticipated that the application will cost £700, plus the Immigration Health Surcharge at the full rate of £624 per year.
It is important to bear in mind that time spent under the Graduate route will not count towards the time required for Indefinite Leave to Remain, but Graduates will be able to able to switch to the Skilled Worker visa from within the UK at any time during the validity of their visa. Graduate visa holders who switch into the Skilled worker visa route will be eligible for the lower ‘new entrant’ salary rate for sponsorship purposes.
The family members of International students applying for the Graduate visa can also apply for a dependant visa, provided that they are in the UK and were last granted a visa as a dependent family member of the main applicant. It will not be possible to apply as a ‘new’ dependant, unless it is a child that is born during the course of a Student or Graduate Visa.
The Graduate route is a welcome addition to the options for students and is good news for both students and employers, allowing individuals to gain valuable experience after their degree. It is disappointing that the scheme does not open until July, but altogether it is a positive move for employers struggling to fill vacancies.
More roles now suitable for sponsorship
For a role to be eligible for sponsorship as a Skilled Worker, it must be deemed to be skilled to RQF3 or above. The new Rules have reclassified two particular jobs. After a long-running campaign by the poultry industry, vent chick sexers are once again deemed suitable for sponsorship, as are deckhands on large fishing vessels (nine metres and above). In both cases, jobs are only eligible where the job requires the worker to have at least three years’ full-time experience in using these skills. This is good news for these industries, who had been concerned about labour shortages following the end of EU free movement rules.
In September 2020 the independent Migration Advisory Committee published its review of the shortage occupation list. The Home Office didn’t accept its recommendations at that time, but some changes to the shortage occupation list are now being made.
From 6 April 2021, the following roles will be added to the shortage list:
- public health managers and directors
- residential, day and domiciliary care managers and proprietors
- health professionals not elsewhere classified
- nursing auxiliaries and assistants
- senior care workers
- laboratory technicians; and
- modern foreign language teachers.
This is significant under our new Points Based System, because additional points are available for roles on the shortage occupation list. This therefore means that the minimum salary requirement for sponsorship is reduced. Instead of being paid at least £25,600 or the going rate for the job (whichever is higher), migrants now only need to be earning £20,480 or 80% of the going rate.
On the other hand, chefs will be removed from the shortage occupation list.
Minimum salaries for sponsorship
When assessing whether a Skilled Worker meets the minimum salary requirement for sponsorship, we have to consider both the going rate for the job (which can be pro-rated for hours worked) and the overall minimum floor (which cannot be prorated). Migrants must be paid whichever figure is highest.
From 6 April 2021, the new Rules introduce a new overall minimum salary requirement for Skilled Workers of £10.10 per hour. This equates to the £20,480 minimum floor for a 39-hour week. The change is designed to safeguard against sponsors requiring their employees to work long hours, to compensate for lower pay rates.
This will not apply to an applicant who was granted permission as a Skilled Worker under the Rules in place before 6 April 2021 and has had continuous permission as a Skilled Worker since then. Please note that the £10.10 per hour minimum salary requirement does not apply to those for whom national pay scales apply, including most NHS and Government workers.
Another change is that if a sponsor wishes to reduce a migrant’s salary but continue sponsoring them, on the basis the Skilled Worker can offset the reduced salary by relying on a different set of tradeable points a new CoS and fresh visa application are required. This might apply if the role is placed on the Shortage Occupation list, or the migrant gains a relevant PhD. This ensures the new points are assessed by the Home Office and the Skilled Worker continues to meet the requirements of the route. Of course there may also be employment law considerations in such a scenario.
The new Rules also introduce some clarifications. In particular they confirm that the new entrant salary rate is only available for a maximum of four years, which will include time spent under the new Graduate Route.
There are also special provisions for migrants sponsored under SoC codes 2113, 2119 and 2311. When the rules changed last time these SoC codes were subject to a high rise in the minimum ongoing rate required. Changes have been introduced so that a Tier 2 General Migrant/Skilled worker falling within this SoC last time and who continues to be sponsored in these occupations, will be exempt from these higher going rates when they apply to extend their permission or settle under the Skilled Worker Rules. The previous going rates will continue to apply in these cases, for applications made before 1 December 2026.
The Academic Technology Approval Scheme (ATAS) is traditionally used for international students intending to study at postgraduate level in certain sensitive subjects where the student’s knowledge could be used in programmes to develop Advanced Conventional Military Technology (ACMT), weapons of mass destruction (WMDs) or their means of delivery. Unless they are one of the exempt nationalities, students must apply for an ATAS certificate before they can study in the UK.
From 21 May 2021 the ATAS policy is to be expanded to include those coming to the UK under a under a sponsored work route to work in an occupation that includes postgraduate research in an academic environment. Applicants must provide a valid ATAS certificate with their visa application and their sponsor also needs to confirm the position on their CoS.
The exemption applies to EU and EEA nationals and nationals of Australia, Canada, Japan, New Zealand, Singapore, South Korea, Switzerland and the USA.
The new Immigration Rules have also bought some welcome news for Global Talent visa applications. Under the existing rules, all Global Talent visa applicants must secure an endorsement from a relevant industry body in the creative arts, science or digital technology fields. From 5 May 2021 the new rules will allow a few truly exceptional candidates to bypass the endorsement and go straight to the submission of their visa application. This will only apply in very limited circumstances where the individual has been awarded an award specified in the Global Talent visa appendix. Such awards include Nobel Prizes, Oscars, Golden Globes and Emmy awards.
Under the current system, any migrant working in the UK within the creative sector, must have no more than 14 days between paid engagements. The new Rules allow migrants and their sponsors to ‘stop the clock’ by only counting time spent within the UK. This arrangement will better reflect the working-practices of the creative sector and will enable multiple re-entry with a T5 visa during an on-going programme of events. This will be particularly useful for touring companies.
T5 Youth Mobility Scheme
The number of spaces available for the T5 Youth Mobility Scheme have been updated. Unfortunately there is still no scheme in place with the EU. However, there will be an additional 1,000 places for young migrants from New Zealand and another 500 from Japan.
These articles are from the March 2021 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact a member of Birketts’ Immigration Team.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at March 2021.