STOP PRESS! New Immigration Rules published

Having delivered our webinar on 21 October 2020, the government then kindly decided to publish the new Immigration Rules the next afternoon. So, did we get it right?

The good news is generally, yes! If you’d like to watch a recording of the webinar, the link is below.

There were a few points, which we said would need to be confirmed. We can now clarify that:

• The new Skilled Worker route will open on 1 December 2020, replacing Tier 2 General. As expected there are transitional arrangements to support migrants currently in Tier 2 General, who will be considered under the new route in future.
• 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”.
• 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.
• 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.
• As we anticipated, salary will mean 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.
• As we anticipated, 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 2 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 4 years.
• The Skilled Worker visa will not be limited to 6 years in the UK and there will be no cooling off period. However the 6 year limit still applies for Ministers of Religion. As we anticipated for Intra-Company Transfers the limit is 5 years in any 6, or 9 years in any 10 if a high earner. 
• When considering reasons why a Skilled Worker cannot meet the residence requirement for indefinite leave to remain, because they have spent more than 180 days outside the UK in any 12 month period, the Home Office will consider “travel restrictions due to a global pandemic”. This change has not been made to the EUSS. We note the scope is fairly limited and anticipate anyone wishing to rely on it for absences since August will need to be able to demonstrate why they could not travel.
• If an EU or EEA national misses the deadline to apply to the EUSS, their application may still be considered if they can show “reasonable grounds” for missing the deadline. However, we do strongly encourage everyone eligible to apply now.

There are also some additional points to note

• The promised new route for British National (Overseas) citizens from Hong Kong is opening, but not until 31 January 2021. This will be another type of visa, which allows someone to work for you without requiring sponsorship.
• San Marino and South Korea will be covered by the Youth Mobility route. There is still nothing to say that this will be opened up to EU nationals (which we hope might become the case in future).
• There is good news for charities. Visitors who wish to volunteer for up to 30 days in the UK, no longer have to show this is “incidental” to the main reason for their trip.
• There is a change in the visitor rules which will benefit commercial film production companies. The visitor rules were previously framed to allow visitors to come to the UK to film on location for foreign films and programmes. That has now been extended to include ‘Other Media content’. This therefore gives greater security that commercials can be included in the remit of the rule.
• There will be another way of meeting the English language requirement. If you went to school in the UK and achieved a GCSE, A-level or Scottish Higher in English language or literature, that can be used instead of a degree taught in English, or an approved English language test.

Of course the fact we now have over 500 pages of new rules means there is inevitably more detail that is worthy of comment. There will be further information in our monthly employment and immigration update for October. If you do not already receive this, please do subscribe or if you would like to discuss your specific circumstances and the impact of the new rules, please do contact a member of the Immigration Team. 

If you would like to watch our recent immigration webinar where we discussed the proposed changes to the immigration system please so do below.