Immigration update – June 2024

Further changes to the EU Settlement Scheme announced 

The Home Office recently announced further changes to the EU Settlement Scheme (EUSS) which should benefit those currently holding Pre-Settled Status (PSS). 

PSS was granted to those applicants who had not resided in the UK for five consecutive years by 30 June 2021. Those who could prove they had continuous residence for five years were granted Settled Status (SS). 

There has been much confusion over the last few years regarding how those with PSS status could eventually obtain SS. COVID-19 and the (often prolonged) resulting absences from the UK for many complicated matters further. 

Many felt that the way the Home Office was instructing those holding PSS to obtain SS was not in line with the UK’s withdrawal agreement in place with the EU. The Independent Monitoring Authority for the Citizens’ Rights Agreements (IMA) therefore took the Home Office to the High Court in 2022 where it successfully challenged the Home Office’s position that citizens with PSS must make a second application to the EUSS or face losing their rights to legally reside in the UK. 

In response to the judgment the Home Office announced that from September 2023 those with PSS in the UK would have their leave extended automatically by two years if they were not able to obtain SS before their PSS expired. It further announced that it was going to automatically convert as many eligible PSS holders as possible to SS once they have become eligible without the migrant needing to make a new application. However, the migrant is still required to meet all relevant eligibility requirements. 

In a further move to assist the transition from PSS to SS the Home Office announced last month that the extension will be increased from two years to five years. It also confirmed that it would remove the PSS expiry date from migrants’ online accounts, which they use to confirm to prospective employers and landlords that they have the right to live and work in the UK. 

The Home Office also clarified that employers and landlords do not need to undertake repeat right to work or right to rent checks if they have completed the process correctly at the start of the engagement and the migrant continues to be employed or rent from the same employer or landlord. 

Despite these positive changes the Home Office is still requesting that those who are eligible to apply for SS should continue to apply to the EUSS and support their application with detailed residence evidence. 

Employers seeking clarification on what these changes mean for right to work checks will currently not be able to find the answer in the Employer’s Guide to Right to Work Checks as the document is still based on the old rules and is yet to be updated. The Home Office has confirmed that documents affected by the announcement will be amended in due course. It is therefore advisable to follow the regime currently in place in relation to right to work checks until the official document is revised. 

Changes to Creative Worker (Temporary Work) visa route 

Last month the Home Office implemented changes to the Creative Worker visa route first announced in March 2024. From 16 May 2024 it has become somewhat easier to sponsor a migrant in this visa category.  

Until 16 May 2024 a Creative Worker could only be sponsored if they were able to fit into one of the various Codes of Practice for the route. If there was not Code of Practice the worker either had to undertake a role listed on the Shortage Occupation List (now called the Immigration Salary List), or the sponsor had to undertake a check of the resident labour market and retain evidence that no worker already settled in the UK could have filled the role. 

From 16 May 2024, a sponsor must ensure that the applicant either complies with the relevant Code of Practice for their profession, or that they will undertake a role that is listed in Appendix Skilled Occupations (the Government list of generally sponsorable jobs in the UK) and they can show that they will make a unique contribution to creative life in the UK. Home Office guidance sets out examples of what making a ‘unique contribution’ could look like. 

This change should generally mean that more creative workers should be able to be sponsored to come to the UK who previously did not meet the strict eligibility requirements.  

Applicants also now need to provide details of any other benefits they receive, such as transport and/or living allowances and other expenses paid by the sponsor to them, and whether the sponsor will recoup these benefits through payroll deductions or by any other means. 

Changes to the online sponsorship management system (SMS) 

Employers holding a sponsor licence are required to assign a Certificate of Sponsorship (COSs) to each sponsored migrant. It is also a sponsor’s duty to keep these COSs up to date if the circumstances of the employee change, and to keep all information pertaining to the business up to date. 

The Home Office recently introduced a new option in the gender section of the COS form. Apart from the options of male or female it is now also possible to choose ‘other’. However, this option should only be chosen where the gender stated on the migrant’s passport is neither male nor female. This option cannot be used to reflect how the applicant identifies unless formally recognised in their passport documentation. 

Good news for the agricultural sector – extension of Seasonal Worker (Temporary Work) visa route

The Seasonal Worker visa is designed to facilitate entry into the UK for migrants who undertake seasonal work in the horticulture sector (fruit/vegetable/flower picking) or the poultry sector for a government approved sponsor. 

The visa scheme was originally planned to end in 2024, but the Home Office announced last month that it will be extended for five years until 2029. This will give employers more time to explore automation and/or how to satisfy their recruitment needs from the pool of workers already in the UK. 

In 2025 43,000 visa be available in the horticulture sector and 2,000 in the poultry sector. Details of quotas from 2026 onwards will be released later this year.  

MAC report recommend retention of the graduate route 

In line with the UK Government’s strategy of ensuring that no visa route is open to abuse, it recently asked the Migration Advisory Committee ((MAC), an independent public body that advises the UK Government on migration issues) to review the Graduate visa route. 

The Graduate visa is available to all students who have studied in the UK, and usually completed a bachelor’s degree, postgraduate degree, or other eligible course for the required minimum period of time with immigration permission as a student. The Graduate visa is issued for two years, (or three years if the applicant has a PhD or other doctoral qualification). A Graduate visa holder can undertake employment at any skill or salary level and their visa is not tied to their employer. It can also be used by freelancers and self-employed persons. The category was initially introduced to enhance the UK’s offer to international students, and also to retain talent for the UK labour market once the migrant had completed their studies at a UK university. 

The Home Office felt that the visa category may be used by applicants to gain (relatively) easy access to the UK labour market and being used to do low-skilled work. 

The MAC concluded that the route has broadly achieved, and is continuing to achieve, its goals. No significant abuse of the route was found during the review. It has therefore recommended to the Home Office that the route should for the moment be retained in its current form which the current Government has currently accepted. 

This will be comforting to employers in the UK as they will continue to be able to employ these migrants in their businesses at entry level jobs commensurate with recent university leavers and will ease pressure on recruiting international workers where the Skilled Work visa salary thresholds are in excess of those paid by business. However, employers need to bear in mind that once the Graduate visa expires these migrants will have to switch category, with the Skilled Worker visa category often being the only viable option to retain employees. While it is still possible to class a Graduate visa holder as a new entrant to the Skilled Worker visa category (and therefore benefit from a slight reduction in salary level required for sponsorship), this will only be available for a maximum of four years, including any time spent on the Graduate visa. At the end of these four years the migrant has to be paid the full salary required for the role which may impact a business’ ability to retain the employee in the longer term.