On 22 October 2020 the government published its Statement of Changes to the Immigration Rules revealing the UK’s new Points-Based System. This clarifies some of the points raised in the policy document entitled ‘The UK’s Points Based Immigration System Further Details’ released earlier this year, on 3 July 2020. Migrate UK highlight the new rules for sponsored workers from December 2020.
What are the key points?
- The new rules apply to applications (including those for permission to enter and leave to remain) made on or after 9am on 1 December 2020
- This does not affect any EEA citizens until 11:01 pm on 31 December 2020
- Certificates of Sponsorship (CoS) issued prior to these dates can still be used but a sponsor note must be added to confirm they are being used under the rules applicable from the effective date
- Those admitted on the Tier 2 Intra Company Transfer (ICT) route will be able to switch into the ‘Skilled Worker’ route whilst still in the UK. There is no specific cooling off period when switching.
- Tradeable points for salary include % drops in the ‘going rate’ for the occupation as you move to relevant PhD qualifications and new entrants.
- Acceptable salary – updates on what constitutes a guaranteed salary.
- Financial requirement replaces maintenance requirement. Funds must have been held for a shorter period of time. Not required for those who have been in the UK for 12+ months.
- Stricter criminality checks. A criminal record certificate will be required for entry clearance applications for Skilled Workers hired in certain occupation codes. The requirement also applies to their dependant partner. Applications from persistent offenders and those convicted of a criminal offence for which they have received a custodial sentence of 12 months or more will be refused.
What is the switching concession?
Leave to remain applications for the Skilled Worker and Tier 2 Intra Company transfer (ICT) routes must be submitted from the UK. The applicant must not have, or have last been granted, permission as:
(a) a visitor or
(b) a short-term student or
(c) a parent of a child student or
(d) a seasonal worker or
(e) a domestic worker in a private household or
(f) outside the Immigration Rules.
Those on an ICT visa can switch in the UK if they are currently working for the sponsor group and unless they are applying as a high earner (£73,900 or more) must have worked outside the UK, for the sponsor group, for 12 months.
The 12 months work can have been accumulated over any period provided that the applicant was continuously working for the sponsor group (in or out of the UK) from the start of the 12 months to the date of the application and the only breaks in continuous work were for one of the permitted reasons.
There is no specific cooling off period when switching. However, time spent on ICT will not count towards settlement.
Skilled Worker route – points
Applicants will need to be awarded 70 points in total. 50 mandatory points must be collected from: sponsorship (20 points), a job at the appropriate skill level (20 points) and for meeting the English language requirement at level B1 (10 points)
Tradeable points can be obtained as follows:
- A salary which equals or exceeds both £25,600 per year and the going rate for the occupation (20 points)
- A PhD qualification which is relevant to the job (10 points), and a salary which equals or exceeds both £23,040 per year and 90% of the going rate for the occupation (10 points)
- A PhD qualification in a STEM subject which is relevant to the job, and a salary which equals or exceeds both £20,480 per year and 80% of the going rate for the occupation (20 points)
- A job in a shortage occupation, and a salary which equals or exceeds both £20,480 per year and 80% of the going rate for the occupation (20 points)
- Being a new entrant to the labour market, and a salary which equals or exceeds both £20,480 per year and 70% of the going rate for the occupation (20 points)
- A job in a listed health or education occupation, and a salary which equals or exceeds both £20,480 per year and 80% of the going rate for the occupation (20 points)
For the Skilled Worker route the salary does not include other pay and benefits which cannot be guaranteed due to the nature of the job, additional pay such as shift, overtime or bonus pay, any employer contributions, or allowances, in-kind benefits, one-off payments, payments to cover business expenses or immigration costs. Transitional arrangements are in place for those currently on the Tier 2 General route.
For the ICT route salary only includes guaranteed basic gross pay and allowances guaranteed to be paid for the duration of the applicant’s UK employment and are paid as a mobility premium or to cover the additional cost of living in the UK. There are certain restrictions on allowances solely for the purpose of accommodation.
If applying for entry clearance or leave to remain and the applicant has been in the UK for less than 12 months, either:
- The applicant must have funds of at least £1270 or
- the sponsor must certify that they will, if necessary, maintain and accommodate the applicant up to the end of the first month of their employment, to an amount of at least £1,270
- Funds must have been held for a 28-day period.
If the applicant is applying for entry clearance, or has been in the UK for less than 12 months on the date of application, the funds required are:
- £285 for a dependent partner in the UK, or applying for entry clearance and
- £315 for the first dependent child in the UK, or applying for entry clearance and
- £200 for any other dependent child in the UK or applying for entry clearance.
The sponsor can cover these financial requirements, at least for the first month of employment.
New rules attached to skilled workers and ICT sponsored workers
The applicant must have a valid Certificate of Sponsorship for the job, which to be valid must: (a) confirm the applicant’s name, that they are being sponsored as a Skilled Worker, details of the job and salary the sponsor is offering them and PAYE details if HM Revenue and Customs (HMRC) requires income tax and National Insurance for the sponsored job to be paid via PAYE; and
The decision maker must not have reasonable grounds to believe the job the applicant is being sponsored to do amounts to: (a) the hire of the applicant to a third party who is not the sponsor to fill a position with that party, whether temporary or permanent; or (b) contract work to undertake an ongoing routine role or to provide an ongoing routine service for a third party who is not the sponsor, regardless of the nature or length of any arrangement between the sponsor and the third party.
For skilled workers the applicant’s sponsor must also provide a credible explanation of how the qualification is relevant to the job for which the applicant is being sponsored.
What should EU citizens do?
Those in the UK now and prior to 11pm on 31st December 2020 will need to apply to remain under the EU Settlement Scheme or another immigration status as appropriate. The EU Settlement Scheme will remain open until 30th June 2021.
We highly recommend that those who only hold a national identity card apply for a passport. Some EU citizens are currently experiencing long waiting times to obtain passports, and this will only get worse. It is important to plan this as soon as you are able.
What should employers do now?
Employers who don’t currently hold a sponsor license you should consider applying for one if they think they will want to sponsor skilled migrants from the EU from January 2021. We advise this is actioned as soon as possible as the process can take on average two to three months.
What happens next?
The Migration Advisory Committee (MAC) has completed its review of the Shortage Occupation list (SOL) and recommended 70 jobs to be added.
However, in an unexpected turn of events the Home Secretary responded to the review on 22 of October stating that whilst the government has considered the possible impacts of the new immigration system it will not be implementing any changes to the Shortage Occupation list until 2021
Before making any changes to the Shortage Occupation list, the government would like to assess how the UK labour market develops, how quickly it recovers after the pandemic and how it will respond to the new Points-Based Immigration system, in terms of overall numbers, understanding migrant and employer behaviours and where migrants go both geographically and by sector.
Employers are once again encouraged to prioritise and invest in those people already in the UK, this being of vital importance in relation to the social care sector. Senior Care workers have been recommended for the Shortage Occupation list under job code 6146. However, it seems the social care sector cannot expect any changes in this respect until 2021.
The ICT route is due for a review by the end of October 2021. This will include 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 and conditions of the route, in particular those where it differs from the main Tier 2 (General) / Skilled Worker route, which may mean qualifying for settlement.