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Immigration: Details, details … The Home Secretary’s “further details" statement published on 13 July 2020 provides more clarity on the new Points Based System framework after 1 January 2021

  • Market Insight 15 July 2020 15 July 2020
  • UK & Europe

  • Employment, Pensions & Immigration

In this update we consider the new Points Based System (PBS) framework and its future impact on UK employers and their non-UK workforces. Our focus is on the new Sponsored Skilled Workers (SSW) route and does not address the Global Talent, Start Up, Innovator and other current Tier 5 categories. Unless the Transition Period is extended beyond 31 December 2020, the new SSW framework will apply to all new UK immigration applications submitted from 1 January 2021.

Immigration: Details, details … The Home Secretary’s “further details" statement published on 13 July 2020 provides more clarity on the new Points Based System framework after 1 January 2021

Reflecting the Home Secretary’s Policy Statement in February 2020, in some respects it is good news for UK employers of skilled non-UK nationals. The successor to the current Tier 2 General category will be less onerous, quicker and more efficient. The bad news is that all skilled EU, EEA and Swiss nationals will require sponsorship via a formal application process with the substantial additional costs including Home Office application fees, the Immigration Skills Charge and Immigration Health Surcharge.

The new framework requires applicants to accrue 70 points principally over salary and graduate qualification categories.

From 2 January 2021, will UK employers require a Sponsors’ Licence to employ EU, EEA and Swiss nationals?

Yes, irrespective of nationality, all non-UK personnel seeking employment under the SSW framework will require sponsorship.

Will existing Tier 2 Sponsors Licence holders need to reapply for a fresh Licence?

All current Tier 2 Sponsors will automatically and free of charge be granted a new Tier 2 General/ Intra-Company Transfer (ICT) Licence covering the new framework. Currently unlicensed employers will need to apply for a Sponsors’ Licence if they wish to recruit non-UK nationals after 1 January 2021.

Will the successor to the Tier 2 General category be simpler and quicker for UK employers?

Yes, in three key areas:

  • Abolition of the Resident Labour Market Test requirement currently required for most Tier 2 General processes.
  • Abolition of the annual Quota system currently required for most Tier 2 General applications submitted from overseas.
  • Reduction of the minimum skills threshold applicable to Tier 2 General applications from Regulated Qualifications Framework (RQF) 6 to 3, being A level or above.

Will a minimum salary threshold apply?

A general minimum gross annual salary threshold of GBP25,600 or the “going rate” possibly referenced in a Code of Practice will apply, whichever the higher. Those earning a minimum gross annual salary of GBP20,480 will also be able to apply if they are able to "trade off “ additional points, for example if the role is a Shortage Occupation or the applicant holds a PhD relevant to the intended role.

Will applicants under this category be required to meet English Language requirements?

Yes, as for those currently applying under Tier 2 General, applicants under the new SSW (but not dependent family members) will need to meet the English Language requirements.

Will the ICT framework remain unchanged?

ICT and ICT Graduate Trainee applications will continue on an uncapped basis. However unlike other SSW applications, the minimum skills threshold will remain at RQF 6, with a higher minimum gross annual salary. The English Language requirement will not apply. ICT migrants will remain ineligible for Indefinite Leave to Remain status on the basis of time spent in that category. There will be a relaxation to the Cooling Off provisions presently applicable to Tier 2 ICT applications, offering greater flexibility for multinational companies. Unless the Tier 2 ICT High Earners’ category applies, an ICT transferee will be restricted to a maximum of 5 years in any 6 year period.

Will dependents of new SSWs be able to work in the UK?

Skilled or unskilled eligible dependents will be able to work in the UK so long as the SSW’s approved employment in the UK and the familial relationship subsist.

Will the new framework impact the employment of Tier 4 students as Skilled Workers?

From the summer of 2021, the new framework will permit non-UK graduates of a Higher Education Provider to work without employer sponsorship in skilled or unskilled roles for a period of 2 years for graduates/ post graduates and 3 years for PhD graduates. At any stage and subject to eligibility, a licenced UK employer may apply to transition these individuals into the SSW category.

Will EU, EEA and Swiss nationals be required to meet the Good Character requirements?

Irrespective of nationality, all applicants will be required to meet the revised good character requirements which will exclude those:

  • With a conviction with a custodial sentence length of at least 12 months
  • Guilty of the commission of an offence which caused serious harm
  • With a persistent offender showing a particular disregard for the law
  • With a person whose character, conduct or associations make their presence not conducive to the public good

Will it be easier to switch from different UK immigration categories within the UK?

In most cases individuals will be able to switch UK immigration categories from within the UK provided they meet all relevant requirements of the new category and subject to any applicable Cooling Off provisions. However those in the UK as visitors or seasonal workers will remain unable to switch to a long-term immigration category from within the UK.

Will EU, EEA and Swiss nationals require a visa to visit the UK?

EU, EEA and Swiss nationals will be subject to the same requirements as any non-EU national visiting the UK, including limitations for permitted activities and not spending more than 6 months in the UK in a 12 month period. The UK government has previously indicated that it will not require EU, EEA and Swiss nationals to apply for a pre entry visa albeit upon entry they may need to satisfy a UK Immigration Officer of the nature and purpose of their visit. If the intended activities fall outside those permitted by the Visitor Rules, the individual will need to apply for a Visa permitting those activities in the UK, be it an application under the new SSW framework or otherwise.

Click here for the Home Office’s policy paper on the UK points-based immigration system: further details statement.

 

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