The Migration Advisory Committee report on Intra-Company Transfer visas

On 13 October 2021, the Migration Advisory Committee (MAC) released its report on the Intra-Company Transfer (ICT) route.

The MAC is a group of economists, who were commissioned by the Government to undertake a study into the ICT route, focussing on the operation and effectiveness of the route, and make recommendations.

Uses of the ICT route

The scope of ICT visas is more limited than the better known and more heavily used Skilled Worker. It is for people already employed overseas by a multi-national company who are being transferred to the UK on a temporary basis. ICT visa holders cannot apply for settlement and they are limited to a stay of five years in every six (or nine in every ten if they receive a salary of above £73,900 per year).

There are two types of ICT visas: the main ICT visa and the ICT Graduate Trainee visa. Those applying for the main ICT visa must have worked for the overseas company for 12 months, or three months if applying for the Graduate Trainee visa – unless they earn above £73,900 when there is then no minimum period of overseas employment.

The job in question must have a skill level of RQF level 6 and the minimum salary threshold is £41,500 or £23,000 for Graduate Trainees – significantly higher than the overall minimum of £25,600 for a Skilled Worker visa (note the minimum salary for Skilled Workers can vary depending on the job SOC code).

The main benefit in choosing ICT over Skilled Worker is that applicants are not required to meet an English language requirement and therefore applications can be made more quickly.

Salary level

The MAC have recommended a slight increase in the minimum salary requirement to £42,400 for the main ICT route and a slight drop to £20,480 for the Graduate Trainee route (to correspond with the “new entrant” rate for Skilled Worker). It was pointed out that there was little evidence to justify the current salary levels but as the ICT route is aimed at senior specialists, a higher salary threshold compared to the Skilled Worker, is justified.

It has also been recommended that thresholds for ICT and other work routes be updated annually, due to concerns over the Home Office’s historic inertia towards nominal salary thresholds which no longer reflect prevailing labour market conditions when left in place for several years.

Additionally, the high earner threshold has been recommended to remain at £73,900 per annum, but be updated annually in line with all other thresholds.

Skill level

The MAC have recommended that the skills threshold remain at RQF level 6 (degree level) for ICT visas. This is notably higher that the RQF level 3 (equivalent to A-levels) minimum for Skilled Workers.

Allowances

Currently, allowances paid to an ICT worker can be included in their salary when assessing whether the worker meets the salary threshold.

The MAC did not have any concerns regarding allowances paid as an additional guaranteed salary (where the worker is free to spend it as they please). However, they did have concerns regarding employers providing physical accommodation on the condition that the migrant worker pays a certain sum for it, due to the potential risk of migrants paying above market rent for accommodation they cannot choose, or employers overstating the value of the accommodation.

The MAC have suggested that the Home Office considers increasing both the collection and monitoring of data, particularly accommodation allowances and reported salaries, in order to check compliance with the current rules.

English language requirement

The MAC do not recommend any changes to the current policy of ICT migrants not needing to meet an English language requirement. The current policy is stated to provide employers with flexibility, helping to reduce time and admin for employers and employees, and is consistent with the ICT route being primarily used for temporary stays.

Routes to Settlement and Switching

Since January 2021, switching from ICT to another visa route has been permitted and it has been suggested that there be no changes to this.

Perhaps one of the biggest changes suggested in this MAC report is to allow ICT visa holders to apply for settlement and to count time spent on ICT towards settlement on other routes. It was said that workers do not often know their future intentions when they apply for their visa, or change their minds, the MAC believes it is fair that settlement is an option for them – especially considering as ICT visa holders tend to be big contributors to the UK economy. Permitting settlement would also help reduce staff attrition rates for business.

Summary of key findings and recommendations for other business mobility issues

It was also examined how short term assignments under ICTs, or another route, could be better facilitated.

Representative of an Overseas Business Route

The issue was raised regarding subsidiaries and what the rules should be for employers sending teams to establish a branch or subsidiary of a business in the UK.

Stakeholders have stated that they feel the current arrangements for this route are too restrictive and that teams should be able to come to the UK, as setting up a new branch or subsidiary requires different skills and knowledge. Having a team in the UK would help with this, especially when dealing with complex legal and regulatory requirements.

After consideration the MAC suggested that the default option for this visa remains a single individual and that the most current set of rules remain.

The aim of the visa route is to allow for legal establishment of a business in the UK.  The MAC has therefore recommended that the visa should be limited to a two-year period (with subsequent entry to the UK using alternative routes for visas and allowing in-country switching to such routes) and it is stated that this should not take longer than one year.

Additionally, it is recommended that for overseas firms that wish to send a team of workers to establish a subsidiary, that an alternative approach is taken. A new ‘team subsidiary’ route is recommended to be trialled over a two-year period, with that data being collected to allow for subsequent evaluation of the impacts of the route and refinement of the criteria.

Secondments

The Home Office wanted recommendations on the ability of an “overseas business to send teams of workers… to undertake a secondment in relation to a high-value contract for goods and services”. The MAC advised that the vast majority of such businesses can use the rules on permitted activities on a visit visa but urged the Government to consider a new visa option to create short-term assignments for workers who fall between the ICT and visit visa rules.

The MAC report suggests some modest reforms, which, if implemented, should preserve some of the route’s relevance to business with globally mobile workforces.

A new consolidated Global Business Mobility immigration route is expected to be launched in 2022. More details are to be announced in due course.

These articles are from the October 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.