UK Immigration: Post-Brexit Immigration Rules Published

Morgan Lewis
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Morgan LewisThe UK government has now published a Statement of Changes setting out the rules for the new UK immigration system.[1] Applications under the new system will open on December 1, 2020 for non-EEA nationals. EEA nationals will be eligible to apply from within the United Kingdom from January 1, 2021, and when they apply for entry clearance, it will be granted with effect from January 1, 2021. Irish nationals will not require a visa or permission to work.

SKILLED WORKER ROUTE

The Skilled Worker route is for both EEA and non-EEA nationals who wish to come to the United Kingdom for the purpose of working in a skilled job they have been offered. This will replace the current Tier 2 (General) route. An overview of the Skilled Worker route and the main differences between the current Tier 2 (General) route are outlined below:

  • The minimum skills threshold will be lowered to RQF level 3 (equivalent to A-levels or Scottish Highers, applicants will not need to hold a formal qualification; it is the skill level of the job which determines whether the threshold is met).
  • The salary threshold will be lowered from £30,000 to £25,600 a year. Sponsors must pay their skilled workers a salary which equals or exceeds both this threshold and the “going rate” for the occupation, whichever is higher. Sponsored workers may be paid less than the salary threshold if they are awarded other tradeable points as set out below.
  • The cap which currently applies under Tier 2 (General) is being suspended, meaning that the Resident Labour Market Test and restricted certificate of sponsorship request process will be removed. This will reduce the end-to-end process for sponsoring skilled workers by at least four weeks. Sponsors must still be seeking to fill a genuine vacancy which meets the skill and salary thresholds of the new route.
  • The 12-month “cooling off period” and six-year maximum length of stay in the route are being removed.
  • The £35,800 salary threshold for settlement applications is being removed. Instead, sponsors must pay their skilled workers a salary which equals or exceeds £25,600 per year and the going rate for the occupation. Other salary reductions permitted through tradeable points will not apply to settlement applications.

Applicants must be awarded 70 points in total to be eligible to apply under the Skilled Worker route. All applicants must qualify for 50 mandatory points for:

  • Sponsorship (20 points)
  • A job at the appropriate skill level (20 points)
  • English language skills at B1 level (10 points)

An applicant may be awarded the remaining 20 tradeable in one of the following ways:

  • A salary of at least £25,600 per year and the going rate for the occupation (20 points)
  • A Ph.D. 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 Ph.D. 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)

The criteria used to identify a “new entrant to the labour market” are being amended to include those sponsored in postdoctoral research positions and those working towards professional qualifications. The criteria for new entrants switching from the Student route are being widened to include those who were in the route at any time in the two years before they apply. The criteria will continue to include applicants who are under 26 years of age at the time of application.

Transitional Arrangements

The Tier 2 (General) route will be closed to new applications from December 1, 2020. An individual who has entry clearance or permission to stay on the Tier 2 (General) route and wishes to extend their stay in the United Kingdom can apply for further leave, or settlement, under the Skilled Worker rules if they meet the requirements.

It will be possible to switch into Skilled Worker from within the United Kingdom from any other route, except where the applicant holds leave as a visitor, short-term student, parent of a child at school, seasonal worker, domestic worker, or leave outside the rules.

INTRA-COMPANY TRANSFER ROUTE

The Intra-Company Transfer route is for established employees who are being transferred by their employer company to do a skilled role in the United Kingdom. The Intra-Company Graduate Trainee route is for employees who are being transferred by their employer company to a role in the United Kingdom as part of a structured graduate training programme. This will replace the current Tier 2 (Intra-Company Transfer) routes. A summary of the main changes to the Intra-Company Transfer route are as follows:

  • A change is being made to the cooling-off requirement. Instead of migrants being barred from re-entering the United Kingdom as an ICT for 12 months after departing, they will be permitted to hold Intra-Company Transfer leave for up to five years in any six-year rolling period or up to nine years in any 10-year period for high earners. They will also be able to apply under the Skilled Worker route.
  • The high earners salary threshold will be reduced to £73,900. Workers with salaries at or above that threshold will be permitted to hold Intra-Company Transfer leave for up to nine years in any 10-year rolling period and are exempt from the requirement to have worked for the overseas business for 12 months prior to entering the United Kingdom.

ENGLISH LANGUAGE REQUIREMENT

The following amendments have been made to the English language requirements:

  • Malta has been added to the list of majority English speaking countries
  • Applicants with degrees obtained in Ireland can use this to evidence their English language ability
  • Applicants who have obtained GCSE/A Level or Scottish Highers in English can rely on this to provide their English language ability. This will initially be available for Students, Skilled Workers, Startup, and Innovator migrants.
  • Applicants should only need to prove their English language ability to the Home Office on one occasion (at a given level).

STUDENT ROUTE

From September 10, 2020, the Student and Child Student routes replaced the previous Tier 4 category. Further changes have been set out in the Statement of Changes and the main updates are as follows:

  • Lower maintenance levels for Student routes of £1,334 per month inside London and £1,023 outside London
  • Removal of the restriction on working as a postgraduate doctor or dentist in training for Students and their dependents to enable them to work in the NHS as long as their conditions of permissions permit them to work
  • The new Short-Term Students route is for applicants aged 16 and over studying an English language course in the United Kingdom for six to 11 months at an accredited institution
  • The new Parent of a Child Student route allows one parent of an individual on the Child Student route to come to stay in the United Kingdom to care for their child (or children) where the child is between the ages of four and 11 and is attending an independent fee-paying school in the United Kingdom.

HONG KONG BRITISH NATIONALS (OVERSEAS, BN(O)) VISA ROUTE

The government has set out two routes. The BN(O) Status Holder route is for BN(O) citizens and their dependents who are ordinarily resident in Hong Kong or the United Kingdom. The BN(O) Household Member route is for the adult child, born on or after 1 July 1997 of a BN(O) citizen. The applicant and any dependent partner or child applying under this route must be ordinarily resident in Hong Kong or the United Kingdom and form part of the same household as the BN(O) citizen.

Following on from our previous LawFlash, this route will allow work and study in the United Kingdom and both are routes to settlement. Applications under this route will open from January 31, 2021.

ADDITIONAL CHANGES AND LOOKING AHEAD

The Statement of Changes confirms that there will be an exemption to the continuous residence requirement for the purpose of a settlement application where an applicant has been absent for longer than 180 days owing to the pandemic.

Individuals with a biometric passport from an EU country, Iceland, Liechtenstein, Norway, or Switzerland applying under the new immigration system to come to the United Kingdom for work or study, will be able to complete the biometric enrolment part of their application via the UK’s new “UK Immigration: ID Check” app. Guidance on using this app has now been published.

A new option to expedite the processing of a sponsor licence application has been implemented. This will be available from 12 November 2020 and the priority processing cost will be £500 in addition to the application fee. Employers who do not already have a sponsor licence and will need to sponsor EU nationals after December 31, 2020 should consider filing a sponsor licence application as soon as possible.

 

[1] See our recent LawFlash on the UK immigration system post-Brexit.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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