The Home Office is due to launch the new Global Business Mobility route in Spring 2022. Last month the Migration Advisory Committee (MAC) gave recommendations on certain aspects of the route, and these are currently under consideration by the Home Office. In this article we look at what we do (and don’t) know about the likely shape of the new category.

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What will the Global Business Mobility route cover?

It is intended to incorporate and reform the following provisions:

• Intra-Company Transfer (ICT)
• Intra-Company Graduate Trainee (ICGT)
• Representative of an Overseas Business
• Visitor provisions for clients of UK export companies
• Contractual service suppliers and independent professionals coming to the UK to carry out activities under international agreements the UK is a signatory to

As part of the design process for the new route, the Home Secretary commissioned the MAC to undertake a study on the ICT visa route in September 2020. The MAC was asked to review the ICT visa route to ensure that it is in compliance with the UK’s free trade agreements, as well as assessing its operation and effectiveness. Additionally, the Home Office asked the MAC to help in the design of future routes which would enable an overseas business to send a team of workers to the UK to establish a subsidiary or to deploy secondees to support a high-value contract for goods or services.

These recommendations from the MAC were published in a report on 13 October 2021 and will now be considered by the Home Office.

Intra-company Transferees

The Home Office is obliged to offer provisions for ICTs due to the UK’s obligations under the World Trade Organisation’s (WTO) General Agreement on Trade in Services (GATS) and other specific FTAs.

The ICT route is intended to enable senior managers and specialists to be transferred to the UK from linked entities abroad. Use of the route can help to bring new skills and innovation to the UK labour force.

The MAC made the following recommendations for ICTs:

• To make the ICT route a settlement route, and to allow time spent on the ICT route to count towards settlement in other settlement routes
• To continue to allow switching from ICT into other immigration routes
• To keep the minimum skills threshold at Regulated Qualifications Framework (RQF) Level 6 (bachelor degree equivalent)
• To slightly increase the minimum salary threshold from £41,500 to £42,500
• To keep the ‘going rate’ calculations the same as currently, and to require applicants to meet the higher of the minimum salary threshold or going rate for the occupation
• To retain the high earner salary threshold at £73,900
• To retain the requirement for eligible applicants to have worked for a group entity abroad for at least 12 months, unless the high earner threshold applies
• To continue to allow high earners to spend a total of 9 years in a 10-year period in the UK (for all other ICTs the maximum would remain at 5 years in a 6-year period)
• To update all salary thresholds annually
• To continue to count guaranteed allowances towards meeting salary thresholds, but to require a complete breakdown to be provided by sponsors, and for the Home Office to consider further monitoring of compliance to ensure allowances are in fact paid and are appropriately quantified.
• To continue to impose the Immigration Skills Charge (ISC) unless this is prohibited by a free trade agreement (FTA)
• Not to impose an English language requirement

Analysis

The biggest change is allowing ICT migrants to proceed to settlement in the UK. This will allow sponsors to retain ICT workers permanently in the UK if they choose. It will also give the workers more flexibility to decide whether they wish to remain in the UK or return abroad before reaching the maximum time allowed under the route.

If the minimum skill level remains at RQF level 6, with corresponding salary thresholds, future use of the ICT route may be reserved for situations where the worker does not qualify for a Skilled Worker visa. This may be the case where the worker cannot meet the English language requirement for the Skilled Worker route, or the proposed remuneration package has a substantial allowances element.

The MAC recommended that the Home Office considers increasing both the collection and monitoring of data to check compliance with the existing rules on skill level, reported salaries and allowances. Sponsors can expect to see more sponsor compliance visits, including questions about ICT workers’ duties and responsibilities, the breakdown of their salary and allowances, and their accommodation arrangements.

Regarding the ISC recommendations, the MAC noted that the Trade and Cooperation Agreement between the EU and the UK states that, for the ICT route, the Immigration Skills Charge must be disapplied to EU nationals by 1 January 2023 at the latest. It is possible that an exemption will be extended to non-EU nationals as part of the Home Office’s consideration of costs as part of its sponsorship review.

Intra-Company Graduate Trainees

The Home Office is also obliged to offer provisions for ICGTs under GATS and other FTAs. Eligible applicants must be coming to the UK to take part in a structured graduate training programme leading to a senior or specialist role within the group of entities they are working for.

The MAC’s recommendations for ICGTs are:

• To retain the requirement for eligible applicants to have worked for a group entity abroad for at least 3 months
• To keep the minimum skills threshold at Regulated Qualifications Framework (RQF) Level 6 (bachelor degree equivalent)
• To align salary thresholds with those for new entrants to the labour market under the Skilled Worker route, i.e. to drop the minimum salary threshold from £23,000 to £20,480, and to require applicants to meet the higher of the minimum salary threshold or 70 per cent of the going rate for the occupation
• To continue to count and monitor allowances in the same way as recommended for ICT
• To continue to exempt graduate trainees from the ISC
• Not to impose an English language requirement

Analysis

If accepted, the reforms proposed by the MAC would reduce the amount some employers may need to pay to bring a graduate trainee to the UK. The exemption from the ISC and no English language requirement may differentiate this option from Skilled Worker, but this is likely to make a practical difference in only a handful of cases as the ICGT provisions are rarely used.

Sponsors using this route should also be aware of the likelihood that the graduate training programme, reported salary and allowances may be more heavily scrutinised in the future.

Personnel required to set up a UK branch or subsidiary

Currently, the Representative of an Overseas Business Route (RoBR) allows a single representative of an overseas business to enter the UK to set up a UK branch or wholly owned subsidiary. Once the UK business has been established, it can obtain a licence to sponsor staff to the UK on a Skilled Worker or ICT visa.
On this, the MAC has recommended that the current option for only one individual to travel should remain the same. Also, the MAC believes that the legal establishment of a business should not take more than one year to conduct in most cases. As such, they recommend that any individual subsidiary should be limited to a two-year period (allowing for a switch into other visa routes).

Additionally, the MAC has recommended a two-year trial of a ‘Team Subsidiary Route’, to enable initial data on its operation to be collected and analysed before proceeding further. During the trial, the overseas business would be assessed as a sponsor for up to five individuals. At least one of the team members would need to meet the criteria of the current RoBR, whilst other team members would need to meet the criteria of the Skilled Worker route. The proposal is for specific eligibility criteria to be produced by the Home Office and for these to be adjusted during the trial period as appropriate, with input from the MAC.

Analysis

The current two-stage process for RoBR and then obtaining a sponsor licence causes issues for businesses as many want to send more than one employee during the set-up phase. Assessing the overseas business to sponsor up to four additional workers initially seems like a sensible and welcome development.

The arrangements proposed by the MAC will give businesses two years to reach the point of being able to apply for an Intra-Company Routes licence, Skilled Worker and/or other sponsor licence to continue to retain their initial team and sponsor any other workers as appropriate.

Although the MAC confirms that switching into other routes should be allowed from the reformed RoBR and new Team Subsidiary routes, it is not clear whether time in them will count towards settlement. If it does not, this may act as a disincentive to transferees.

Secondees from overseas clients of UK export companies

Currently it is possible for personnel from a client of a UK export company to be seconded to the UK to oversee the requirements for goods and services that are being provided under contract by the UK company or one of its subsidiaries. The two parties to the contract must not be part of the same group.

Up until an Immigration Rule change on 6 October 2021, it was allowable for employees to exceptionally make multiple visits covering the duration of the contract.

The MAC noted that there is little data on use of the visitor provisions. On occasion, the Home Office has issued leave outside the Rules to secondees who fell outside the remit of the visitor Rules, as well as to some dependants who would not otherwise be able to accompany the secondee.

The MAC recommended for a secondment route to be included as part of the Global Business Mobility offering, initially requiring the following:

• A contract value of £50 million or more
• Operation of the overseas seconding business for at least 12 months
• Maximum visa length of 12 months, with a single renewal
• Eligibility for dependants
• Monitoring by the Home Office and immediate suspension being possible where abuse is detected

Analysis

The current visitor Rules are usually used where the overseas business has no presence in the UK, and therefore cannot use the ICT route. Although they are beneficial for managing effective delivery of contracts, it is likely that many businesses will not be aware of them. Bringing the within a visa route geared towards global business mobility may itself increase their use.

The MAC’s proposals are more restrictive than the current position in terms of introducing a minimum contract value, and also shift the focus of the secondments from being the client ensuring their requirements are met, to being “upskilled in the use of the product being produced” by the UK business. It may become important for businesses to provide feedback to the Home Office if the contract value has been set at too high a level, or if the scope of the route is too limited.

The capacity to bring dependants is a welcome development. A lack of provision in this area may have put off secondees being deployed in the past, particularly where they did not know an application outside the Rules was possible or considered the outcome of this to be too unpredictable.

The 24-month maximum length of the visa may not be long enough for key client secondees engaged on a long infrastructure or engineering contract for example, however it may be possible to refresh this period by obtaining fresh entry clearance.

Contractual service suppliers and independent contractors under international agreements

The Home Office has confirmed in separate communications with stakeholders that the provisions for contractual service suppliers and independent contractors, which are currently part of the International Agreement route, will be included in the Global Business Mobility offering.

Analysis

These arrangements are already closely aligned to the UK’s obligations under international agreements and were not within the scope of the MAC’s review. The substantive reforms in this area are likely to be modest.

For further information, see our article, Using the International Agreement visa route to sponsor contractual service suppliers.

Short-term assignments

Some stakeholders the MAC engaged with noted the current lack of an agile, low-cost and time-limited provision in the Immigration Rules for individuals to undertake specialist technical work on a short-term basis. This was felt to have become a more significant problem following the end of freedom of movement between the UK and the EEA/Switzerland.

The MAC recommended that the Home Office should consider:

• Amendments to the visitor Rules to enable time-limited essential work travel to the UK
• Implementing a short-term ICT route in addition to visitor Rule changes

Analysis

Detailed consideration of this aspect was outside the remit of the MAC’s commission, so it may be that the Home Office issues a separate commission or formulates further policies in response to direct stakeholder engagement.

There have been instances of extreme worker shortages in some sectors during 2021, for which the Home Office has considered short-term work authorisation to be most appropriate. To avoid similar market shocks in the future, it would be beneficial for detailed analysis to be carried out to identify and address these areas from an immigration policy perspective. A formal, structured policy approach involving the MAC would seem most sensible here.

What comes next?

The Home Office will respond to the MAC report. More details of the Global Business Mobility route may be published at the same time, or at a later date ahead of the route’s implementation. Formal Immigration Rules will be published in the early part of next year.

There is still time to influence policy in this area, so if you have any queries or concerns about the proposals as currently understood, please get in touch with a member of our Immigration Team.

Related Item(s): Immigration & Global Mobility

Author(s)/Speaker(s): Andrew Osborne, Supinder Singh Sian, Kathryn Denyer, Li Xiang, Margaret Smith,