Immigration update – November 2023

New Home Secretary appointed in cabinet reshuffle

On 13 November 2023, the UK’s Prime Minister Rishi Sunak undertook a re-shuffle of his cabinet, including replacing the Secretary of State for the Home Department (the Home Secretary).

All UK visa operations are within the remit of the Home Office, and the Home Secretary is responsible for the Home Office. Until the reshuffle Suella Braverman had been in that post since October 2022. She was replaced by James Cleverly, who until then had been the Secretary of State for Foreign, Commonwealth and Development Affairs (the Foreign Secretary.

Whilst it is too early to know what changes we might see to immigration policy due to this change in leadership, quarterly net-migration figures were again sustained at record highs – piling pressure on the Government in the run up to the expected election in 2024 and meaning that it’s likely significant policy changes to reduce legal migration to the UK will be implemented.

Whilst the new Home Secretary is so far cooling the rhetoric around Rwanda and withdrawal from the ECHR, possible legal migration changes under consideration include:

• Increasing the minimum salary threshold for visa sponsorship to as much as £40,000 per annum (up from the current minimum rate of £26,200 per annum).
• Reducing eligible dependent family members under the Health and Social care route (to mean workers could only bring one x dependent family member).
• Removing salary concessions for visa sponsorship eligibility in relation to roles on the shortage occupation list.

Home Office delays in Biometric Residence Production (BRP)

The Home Office has recently started to contact visa applicants to inform them of possible delays in the production of their new BRP cards.

The reason given is that the Department for Work and Pensions is currently busier than usual, which means they cannot produce National Insurance (NI) numbers quickly enough. NI numbers have been printed on BRPs for a number of years now, so the permits cannot be produced until the NI number has been issued. Both Government departments are working together to keep delays to a minimum.

These delays may affect mandatory right to work (RTW) checks employers need to undertake on new employees, or existing employees who have made an application to switch or extend their current visas. Employers who are waiting for employees to provide them with a share code based on their BRPs to undertake the RTW check should contact the Employer Checking Service, and then undertake a second online right to work check with a share code provided by the employee once the BRP has been issued.

Whilst there are work arounds (as above) for the BRP issue for Right to Work checks, this may also add inconvenience for those that are required to travel internationally. We continue to advise that international travel shouldn’t be booked until you have your new visa card in hand to avoid fees for rescheduling travel or lost bookings.

Delays in processing of DCoS requests

Companies sponsoring Skilled Workers to come to the UK will be familiar with the process of applying for a Defined Certificate of Sponsorship (DCoS) – this is required where the applicant being sponsored is currently outside of the UK and applying for a visa (Entry Clearance) to come to the UK.

The DCoS process – although not a cap/quota for visa applications, is a common checkpoint for compliance – with Home Office case workers checking salary requirements, genuine vacancy evidence and Standard Occupation Classification (SOC code) mapping. Typically, the Home Office seeks to process DCoS requests within two working days – currently we’re seeing these requests being delayed and taking as many as 20 workings to process. This is delaying applicants progressing with their visas and employees from starting in their new job roles. Extra vigilance is recommended to put extra detail in the DCoS requests to cover off working hours, any salary concessions relied upon, and recruitment processes to avoid additional undue information requests being issued.

Changes to Right to Work (RTW) checks for employees who have applied via the EU Settlement Scheme (EUSS)

The Government has recently changed the RTW requirements pertaining to employees who have an outstanding application under the EUSS submitted on or after 1 July 2021.

Until October 2023 employees had to provide their digital Certificate of Application (issued to the applicant once a valid application under the EUSS has been submitted) to their employer so they could contact the Employer Checking Service to verify the employee’s right to work based on the certificate.

Now it is sufficient for the employee to provide the employer with a share code that they can input into their side of the RTW online system to verify the employee’s right to work.

It is important to note that this only applies digital certificates – so an email which has the ‘certificate’ in the body of the email. The Home Office considers a PDF letter attached to an email or one sent in the post to be a non-digital document. In any case, this change will make RTW checks in these circumstances much easier than they were previously.

Electronic Travel Authorisation (ETA) has gone live

The ETA scheme is now live for certain nationals who visit or pass through the UK, who do not currently need a visa for short stays. The ETA must be applied for online before travel and costs £10. It will take on average three working days to be approved, though some approvals can be quicker. If someone has a complex immigration history or other issues it can take significantly longer. The ETA is usually valid for two years.

As we mentioned in our October 2023 monthly update, the ETA scheme was introduced from 25 October 2023 for nationals of Qatar and is mandatory for all Qatari nationals arriving in the UK as visitors from 15 November 2023. It will be further introduced to nationals of Saudi Arabia, Bahrain, Kuwait, Oman, United Arab Emirates and Jordan from 1 February 2024. The scheme will be rolled out in phases to all other non-visa nationals (i.e. people who do not currently need a visa to travel to the UK for a short period of time), including EU nationals, by the end of 2024.

The Home Office has confirmed that the rules around ETA will not be fully enforced until the scheme has been implemented in its entirety. This will allow all those affected by its introduction to get used to it and ensure they comply with its requirements, but early compliance is advised to ensure travellers are not delayed on arrival or refused boarding by airline operators (who risk fines for enabling passage of non-compliant travellers).

Courier passport return for customers in Tel Aviv, Jerusalem and Ramallah

Due to the ongoing conflict in the Israel-Gaza region UK visa application centres in Tel Aviv, Jerusalem and Ramallah remain closed until further notice.

The Home Office has now confirmed that customers who had already submitted applications in one of the three visa application centres before they were closed, and who have had decisions made on their applications, can expect to receive their passports back by courier. The same applies for applicants who no longer wish to proceed with their applications – they can withdraw their applications and their passport will be couriered to them. Where the courier is unable to reach customers in areas affected by the conflict, they will be contacted so that they are aware of this.

Customers who are unable to collect their passport from the visa application centres in Amman or Istanbul can arrange for someone else to collect it on their behalf. Customers can also contact the operator of the visa application centres TLS and request that their passport is couriered to a specific third-party address.

Courier routes into Gaza are currently not operating, so it is not possible to return passports to customers in this area at this time.

High Potential Individual (HPI) visa – new eligible university list released

A new list of eligible universities for the HPI visa route has been published by the Home Office. An individual can apply for an HPI visa if they have been awarded a qualification from an eligible university in the last five years.

Individuals granted an HPI visa will usually be granted permission to stay in the UK for at least two years. Whilst in the UK, the individual can work in most jobs or be self-employed and can live in the UK with their partner and/or children. This visa category cannot, however, be extended and is not a path to permanent settlement in the UK.

The HPI visa can be an alternative route for employers to bring new employees into the organisation without having to sponsor them from the start. The time granted on an HPI visa allows the employer and employee to find out if they are a good fit. If both agree that long-term employment is desirable the HPI visa holder can switch to a sponsored Skilled Worker visa, which will count towards permanent residence in the UK.

Supreme court ruling on Rwanda

On 15 November 2023, the Supreme Court of the UK ruled that the Government’s policy which would allow it to remove illegal migrants from the UK to Rwanda is unlawful.

This will likely delay the implementation of sections of the Illegal Migration Act 2023 (IMA 2023), which was passed in July 2023, or require amendment to the legislation. The purpose of the IMA 2023 is to deliver on the Government’s pledge to stop the small boats from crossing the English Channel, and the agreement in place with Rwanda for the removal of illegal migrants underpinned parts of that policy.

The first flight removing people from the UK to Rwanda was scheduled to take place in February 2024, but this will now be very unlikely to go ahead.

While this decision does not necessarily have an immediate impact on legal migration it does mean that the UK Government will have to revisit its stance on illegal migration and adjust its plans to reduce the numbers of people coming to the UK without official permission to enter the country.