Immigration Monthly Update – March 2023

The Electronic Travel Authorisation Scheme

The UK is working towards the launch of the Electronic Travel Authorisation (ETA) Scheme, a new digital travel authorisation, which will be linked to an individual’s passport.

Similar to the USA ESTA registration process, the new UK ETA will provide permission to travel to the UK for those who currently don’t require a visa to enter the UK for up to six months, those on the Creative Worker visa concession visa (for up to three months) or those who are transiting through the UK.

The Government has previously expressed that it will be implementing this scheme over the next two years, and it will welcome its first applications from this spring.

It is to be noted that from 15^th November 2023, nationals of Qatar will need an ETA to travel to and enter the UK, and nationals of Bahrain, Jordan, Kuwait, Oman, Saudi Arabia and the United Arab Emirates will need an ETA from 22^nd February 2024.

Applications can be made on the UK ETA app or on the Government website, and decisions are expected to be received within three working days.

Further, the ETA will be valid for up to two years and will allow multiple entries into the UK.

Broader roll out of the ETA registration is expected for other country nationals including in future EU and USA nationals after February 2024.

UK and New Zealand expand Working Holiday/ Youth Mobility Schemes for young people to live and work abroad

The expansion of the Youth Mobility and the Working Holiday Scheme brings good news for British Citizens and nationals of New Zealand between the ages of 18 to 35, who will now be eligible to work and live in both countries for a longer period of time. 

Currently, the Working Holiday Scheme allows British Citizens aged between 18 to 30 to travel to and stay in New Zealand for up to 23 months, and work for up to 12 months. Whereas, the Youth Mobility Scheme permits citizens of New Zealand aged between 18 to 30 to live and work in the UK, for up to two years. The new rule changes increase eligibility for more applicants to include those age 31 – 35.

Both governments are now implementing the following changes to the schemes:

• The age of eligibility has been extended from 30 to 35.
• The maximum amount of time individuals can stay in each country has been extended from two to three years.
• Individuals in each country can work for the full three years
• New Zealand has expanded the annual cap for the Working Holiday Scheme in the UK to 15,000 visas per year. (NB the UK doesn’t have a cap on the number of New Zealand national applicants).

The UK will adopt the enhanced scheme from 29 June 2023, and New Zealand will move to the new scheme from 1 July 2023.

These changes will broaden the opportunities available to young people and enable a larger range of individuals from both countries to experience work and life on the other side of the world. Further, this will be positive for those struggling to recruit in the UK due to shortage of workers as more applicants will qualify for this and will reduce the number of applicants that would otherwise require sponsorship as Skilled Workers.

Passport Office strike

Strikes at HM Passport Office over pay and working conditions will take place from 3rd April – 5th May which is expected to cause a significant delay to passport applications and add to challenges for travellers going away for Easter or early Summer 2023. One in four passport office workers are expected to join the strikes.

Applicants are advised to submit passport applications early and use priority services where available to minimise disruption to travel plans.

Introduction of the Innovator Founder visa route

On the 9 March 2023, the Home Office announced details of the Innovator Founder route as a replacement for the Innovator and Start Up routes, which will come into force on 13 April 2023.

The Innovator Founder route still maintains the requirements for individuals to demonstrate an “innovative, viable and scalable” business idea, which needs to be endorsed by a Home Office approved endorsing body.

However, this route removes the £50,000 minimum funds requirement that is currently in place for those coming to the UK, the removal of which will provide entrepreneurs with genuine creative ideas flexibility to access the appropriate level of funds to carry out their ideas.

Another positive difference is that the Innovator Founder route allows visa holders to take up secondary employment outside the running of the business providing it is deemed to be a ‘skilled role’, however, the Innovator Founder must still be involved in the day-to-day management of the company.

Although the removal of the minimum funds requirement is positive and more inclusive, the practicalities of the Innovative Founder route such as the ‘innovative’ business idea may limit the number of individuals applying via this route.

Increases in salary thresholds for skilled roles

Several changes have been made to certain visa routes, salary thresholds and going rates reflecting the current economic climate of uncertainty and inflation. These changes will take effect from 12 April 2023. These changes align with the increase in the National Living Wage effective from 1 April 2023.

Going rates:

The first notable change is that going rates for Skilled Occupations will now be based on a 37.5-hour week (rather than the current 39-hour week).

The effect of this will be an increase of going rates of occupations for those employers whose employees are contracted to work for less than 39 hours a week.

Changes to the Skilled Worker visa:

The minimum salary threshold is now increasing from £25,600 to £26,200, as the hourly rate increases from £10.10 to £10.75.  

Next, where the individual has a PhD in a subject relevant to the role, the salary threshold will increase from £23,040 to £23,580.

Further, if an individual is deemed to be a new entrant, holds a PhD in a STEM subject relevant to the role or the role appears on the Shortage Occupation List, the salary threshold will increase from £20,480 to £20,960.

Changes to Global Business Mobility:

For the Global Business Mobility Senior or Specialist Worker, the minimum salary threshold is increasing from £42,400 to £45,800.

For the Global Business Mobility Graduate Trainee, the minimum salary threshold will increase from £23,100 to £24,220.

For the Global Business Mobility UK Expansion Worker route, Australian nationals and permanent residents coming to the UK to open a branch or subsidiary of the Australian employer will not need to show that they have worked for the overseas employer for 12 months prior to coming to the UK.

Scale up route:

Finally, the Scale-up route minimum salary threshold will increase from £33,000 to £34,600.

Right to Work Changes

Changes have come into force, effective 26^th January 2023, which now enables some individuals who have outstanding, in-time applications for permission to remain in the United Kingdom, or an outstanding appeal or Administrative Review submitted after 26^th January 2023, to prove their right to work using the Home Office online checking service. Those who have submitted the above applications prior to 26^th January 2023 will not benefit from the change.

What does this mean in practice?

All individuals who have submitted in-time applications after 26^th January 2023 are now able to have their section 3C leave reflected within their online digital profile, thus allowing them to prove their right to reside in the United Kingdom which includes their Right to Work.

This is a positive change which replaces the previous need for employers to conduct an ‘Employer Checking Service request’ and obtain a Positive Verification Notice in order to be provided with a statutory excuse which was only valid for six months in order to recruit an individual with an outstanding application to begin working for them.

In addition to only applying to individuals who have submitted in-time applications after 26^th January 2023 and not existing holders of 3C leave, the changes do not apply to individuals on non-digital routes, those who are applying for non-digital route status and those who have leave through the EU Settlement Scheme or as a frontier worker. Whilst the roll out of these changes is therefore currently limited, it is expected that more applicant types will be incorporated in later iterations as the technology is upgraded in stages.

The changes currently only apply to those individuals who hold an eVisa and are subsequently applying for another eVisa to stay in the United Kingdom.

All individuals with section 3C leave remain subject to all conditions attached to their previous leave and must ensure to comply with these conditions.

The Government’s “no recourse to public funds” policy declared unlawful

Following two judicial review claims (R (HAA) v SSHD (CO/308/2023) & R (Ali) v SSHD (CO/3425/2022), on 15 February 2023, the High Court again ruled that the Government’s “no recourse to public funds” (NRPF) policy is unlawful. This policy prevents migrants’ access to mainstream welfare benefits such as Universal Credit, Child Maintenance and Disability Living Allowance and was introduced in 2012 alongside Appendix FM of the immigration rules.

There are only two narrow exceptions to the rule, which in practice are very difficult to satisfy. The NRPF condition will stand unless the caseworker, at their discretion is satisfied that:

1. The applicant is destitute as defined in section 95 of the Immigration and Asylum Act 1999, or at risk of imminent destitution; or
2. There are child welfare reasons that outweigh the rationale for imposing the NRPF condition.

The judicial review claims concerned two unconnected migrants, both with disabilities, who had requested that the NRPF restriction on their leave be lifted due to their disabilities, and because of having fallen into destitution. In both cases, the requests were refused on the basis that there was insufficient evidence to prove destitution. The judicial review claims challenged the decisions on the grounds that the caseworkers had failed to use their broad discretionary powers when assessing each case, paying little attention to the migrants’ disabilities when ruling that no benefits should be granted.

The High Court decided that the policy and guidance is unlawful for a lack of instructions on how caseworkers should exercise their statutory discretion when assessing exceptional circumstances and/ or a disability which would require access to public funds to be granted, to individuals who may not necessarily be destitute.

Until the Secretary of State amends the policy, it is likely that the rules and guidance will continue to be unlawful. We expect that amendments to the policy will be implemented this autumn, but until then, individuals who request access to public funds under one of the conditions above can rely on the court’s decision in these cases.