On 22 October 2020 the Government laid out 500 pages of new Immigration Rules, which will form the basis of our new Points Based Immigration System. Most of the changes will apply to non-EU nationals from 1 December 2020 and to EU citizens arriving in the UK from 1 January 2021. This article forms part of a series taken from our October edition of Employment and Immigration Law Update covering the latest changes to the rules. In this article the Immigration Team looks at the impact of the changes on Skilled Workers, with the overarching changes to the system covered here.
The most significant change is to replace the current Tier 2 General visa route, with the Skilled Worker visa. This will open on 1 December 2020. There are transitional arrangements to support migrants currently in Tier 2 General, who will be considered under the new route in future.
The Skilled Worker visa will no longer be limited to six years in the UK and there will be no cooling off period. Switching will also be possible in the UK from more routes, including from an ICT visa.
To qualify for this visa, the migrant must obtain 50 mandatory points and further 20 tradeable points, giving a total of 70 points.
Sponsorship
The first step to qualify for this visa is to have Certificate of Sponsorship (CoS) from a licensed sponsor (20 points). Existing Tier 2 sponsors will have their licence transferred across into the new system.
If you have assigned a Tier 2 General Certificate of Sponsorship before 1 December 2020, but the migrant submits their visa application on or after this date, you will need to add a sponsor note – details on what that must contain to follow. We anticipate it will be to do with the fact that CoS for Skilled Workers must include “PAYE details”.
The good news is that from 1 December 2020, the Resident Labour Market Test (RLMT) is being abolished. There will still be a requirement for a genuine vacancy, which has not been created just to obtain a visa for a particular migrant.
There is no cap on the number of Skilled Worker visas and the restricted CoS process will no longer apply. However, where a sponsor assigns a CoS for entry clearance (i.e. to support an application being made outside the UK), the CoS must “have been allocated by the Home Office to the sponsor for the specific job and salary details shown.” So it appears there will still be a process you have to follow to obtain CoS for migrants applying from overseas and you will not be able to just assign them a CoS from the bank in your sponsor management system.
Skill level
The second requirement is for the job to be at the appropriate skill level (20 points).
The minimum skill level required for sponsorship is being reduced from RQF6 (degree level) to RQF3 (A level). This would appear to open up many more roles to sponsorship. However, there is also a minimum salary requirement to be met. The third requirement is English language (10 points).
Salary
The headline is that the minimum salary requirement is dropping from £30,000 to £25,600. However, the introduction of tradeable points means the minimum salary may actually be as low as £20,480 if other requirements are met. It remains the case that you must meet this overall minimum salary and also the going rate for your role, as determined by the SOC code. Migrants need to score 20 points from the table below:
| Salary | Other | |||
|---|---|---|---|---|
| General threshold | Going rate | |||
| £20,480 | 80% of going rate or 70% if new entrant | 0 | PhD in relevant subject to job | 10 |
| £23,040 | 90% of going rate | 10 | PhD in STEM subject relevant to job | 20 |
| £25,600 | 100% of going rate | 20 | Shortage occupation | 20 |
| £20,480 | Listed health/education job & meets national pay scale | 20 | New entrant | 20 |
Salary means gross basic guaranteed salary only. Allowances and benefits in kind cannot be included, nor can shift premiums, overtime pay etc. If the migrant is contracted to work more than 48 hours per week, you can only count salary based on 48 hours towards the overall minimum salary requirement. The going rate however is based on 39 hours per week and will need to be pro-rated up or down accordingly depending on the migrant’s contracted hours.
The definition of a “new entrant” (relevant when considering salary requirements and tradeable points) is being amended. In addition to migrants under the age of 26 and those switching from a Student visa, it will include those who have been Students in the last two years, postdoc researchers in certain SOC codes and those working towards a recognised professional qualification or full registration required for their job. The maximum time as a new entrant is four years.
Unfortunately the MAC recommendations to add to the shortage occupation list have not yet been accepted. The Government has said it wishes to assess the impact of the pandemic, before it adds RQF3 level jobs to the shortage list. This is going to have a significant impact on the ability to recruit for those roles, as we anticipate in many cases migrants would have been relying on the role being a shortage occupation in order to get the necessary “tradeable points” where the salary is below £25,600.
Intra-company transfers
The new rules allow intra-company transfers, on the same basis as we have now. Sponsors should note that the minimum skill level required for an ICT remains at RQF level 6, it is not being reduced to RQF level 3. It also remains the case that a higher minimum salary of £41,500 is required (or £23,000 for the ICT Graduate Trainee route).
The cooling off period is being replaced by an overall limit on the time spent in this category. This will be five years in any six, or nine years in any 10 if a high earner. We can see two reasons why a sponsor might choose to use the ICT route, rather than the Skilled Worker visa. Firstly it allows the migrant to be seconded to the UK and remain on the payroll of their overseas employer, instead of having to be paid by the UK sponsor.
Secondly there is no English language requirement.
The Government has indicated that it does see value in retaining this visa route in the long term, but has asked the MAC to carry out a review to consider:
- the salary threshold for entry to the ICT route
- what elements, if any, beyond base salary should count towards meeting the salary
- requirement
- whether, as now, different arrangements should apply to the very highly paid
- what the skills threshold for the route should be
- the conditions of the route, in particular those where it differs from the main Tier 2 General /Skilled Worker route.
Therefore sponsors should be prepared for further changes to this route.
Graduates
The Government announced this route with great fanfare some time ago. Graduates from UK universities with a Bachelors or Masters degree will be able to stay in the UK for two years, those with a PhD for thee years, to work or look for work at any skill level, without requiring sponsorship. However the Graduate route will not open until summer 2021 and actually it is still not covered by the Rules.
What about other work visa routes?
Although the legislation is changing in the background and some of the terminology is being amended, the practical impact on the following work visa routes is less significant.
- Health and Care visa – Forms part of the Skilled Worker route.
- T2 Minister of Religion – Note the RLMT requirement is abolished, but the six year
- limit on visas in this category remains.
- T2 Sportsperson – Remains the case that governing body endorsement is required.
- Temporary Work: Creative and Sporting – These routes are being separated to allow
- for future evolution.
- Temporary Work: Youth Mobility Scheme – San Marino and South Korea to be included.
- Temporary Work: Religious Worker.
- Temporary Work: Charity Worker.
- Temporary Work: International Agreement.
- Temporary Work: Government Authorised Exchange.
- Temporary Work: Seasonal Worker – Pilot scheme is still running and will be
- assessed in 2021.
- Start-Up and Innovator.
- Global Talent.
- UK Ancestry.
- Representative of an Overseas Business.
This article is from the October 2020 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 more details regarding any of the matters covered in this update, please contact a member of our 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 October 2020.