The Home Office has recently launched an initiative for contacting work route sponsors where their records indicate that sponsor licence system (SMS) users have not accessed the system for 12 months. To minimise the risk of potential compliance action, sponsors should take the opportunity to review their key personnel details and how they manage reporting on their sponsor licence.

Text:

Some initial contact attempts have been made from the Home Office Sponsor Assurance and Investigations Team to the Authorising Officer (AO) by telephone, with follow-up email correspondence sent where telephone contact has not been successful. The email identifies named Level 1 users who have not accessed the SMS for more than 12 months and requests that any amendments to the contact details of key personnel are reviewed, and, if applicable, amended within 10 working days.

Although some contacts appear to have been made to regular SMS users, which suggests the records the Home Office is working from may not be up-to-date, the activity serves as a reminder of the duties that sponsors have regarding maintaining the details of key personnel, and ensuring that the sponsor licence details and activities are reviewed regularly.

The AO does not have access to the SMS by default, however the Home Office recommends that they check the certificates of sponsorship (CoS) assigned to workers at least monthly. We would therefore suggest that the AO either also has access to the SMS as a Level 1 user, or that they ensure a Level 1 user provides them with a CoS summary on a monthly basis.

One advantage of the AO having direct access to the SMS is that they will also be able to review the sponsor licence summary and arrange for any necessary updates to be made. A monthly review is ideal so that any changes to sponsor circumstances can be made within the required timeframes. Most sponsor change of circumstances notifications need to be made within 20 working days, but some must be made within 10 working days. If the AO is aware of an upcoming change that will need to be notified to the Home Office, appropriate reminders could be diarised to ensure the notification is made on time.

Whether or not a contact has been received, we would suggest that sponsors consider taking the following actions:

• Reviewing the details of the AO, Key Contact, Representative, Level 1 users and Level 2 users and:

• Making any necessary updates to the details of key personnel;

• Deactivating/replacing key personnel as appropriate; and

• Generally reviewing the number and mix of Level 1 and Level 2 users and adjusting accordingy;

• Reviewing any messages in the SMS and taking any actions required;

• Setting up or checking a reminder system for the AO to review assigned CoS on a monthly basis, in line with Home Office recommendation; and

• Setting up or checking a reminder system for Level 1 and Level 2 users to access the SMS on a monthly basis, in line with Home Office recommendation.

If you have queries about making any necessary changes or would like a more detailed review of your sponsor licence arrangements, please contact a member of our Immigration Team.

Related Item(s): Immigration

Author(s)/Speaker(s): Andrew Osborne, Supinder Singh Sian, Stephen OFlaherty, Kathryn Denyer,

The Home Office has recently launched an initiative for contacting work route sponsors where their records indicate that sponsor licence system (SMS) users have not accessed the system for 12 months. To minimise the risk of potential compliance action, sponsors should take the opportunity to review their key personnel details and how they manage reporting on their sponsor licence.

Text:

Some initial contact attempts have been made from the Home Office Sponsor Assurance and Investigations Team to the Authorising Officer (AO) by telephone, with follow-up email correspondence sent where telephone contact has not been successful. The email identifies named Level 1 users who have not accessed the SMS for more than 12 months and requests that any amendments to the contact details of key personnel are reviewed, and, if applicable, amended within 10 working days.

Although some contacts appear to have been made to regular SMS users, which suggests the records the Home Office is working from may not be up-to-date, the activity serves as a reminder of the duties that sponsors have regarding maintaining the details of key personnel, and ensuring that the sponsor licence details and activities are reviewed regularly.

The AO does not have access to the SMS by default, however the Home Office recommends that they check the certificates of sponsorship (CoS) assigned to workers at least monthly. We would therefore suggest that the AO either also has access to the SMS as a Level 1 user, or that they ensure a Level 1 user provides them with a CoS summary on a monthly basis.

One advantage of the AO having direct access to the SMS is that they will also be able to review the sponsor licence summary and arrange for any necessary updates to be made. A monthly review is ideal so that any changes to sponsor circumstances can be made within the required timeframes. Most sponsor change of circumstances notifications need to be made within 20 working days, but some must be made within 10 working days. If the AO is aware of an upcoming change that will need to be notified to the Home Office, appropriate reminders could be diarised to ensure the notification is made on time.

Whether or not a contact has been received, we would suggest that sponsors consider taking the following actions:

• Reviewing the details of the AO, Key Contact, Representative, Level 1 users and Level 2 users and:

• Making any necessary updates to the details of key personnel;

• Deactivating/replacing key personnel as appropriate; and

• Generally reviewing the number and mix of Level 1 and Level 2 users and adjusting accordingy;

• Reviewing any messages in the SMS and taking any actions required;

• Setting up or checking a reminder system for the AO to review assigned CoS on a monthly basis, in line with Home Office recommendation; and

• Setting up or checking a reminder system for Level 1 and Level 2 users to access the SMS on a monthly basis, in line with Home Office recommendation.

If you have queries about making any necessary changes or would like a more detailed review of your sponsor licence arrangements, please contact a member of our Immigration Team.

Related Item(s): Immigration

Author(s)/Speaker(s): Andrew Osborne, Supinder Singh Sian, Stephen OFlaherty, Kathryn Denyer,

Immigration law changes continue at a pace during 2022 and employers need to be aware of key recent and upcoming developments.

Text:

In our recent webinar on 27 April 2022, we covered the following topics:

• Right to work changes since 6 April 2022

• Immigration-related fee updates

• Recent and upcoming immigration route changes including the Global Business Mobility routes, High Potential Individual and Scale-up visas

• Sponsorship reform including the Home Office’s sponsorship roadmap

• The impact of the Ukraine conflict on UK immigration

You can view the webinar in full below. If you have any queries about any of the matters covered, please get in touch with a member of our Immigration Team.

Sign up to our newsletter and be the first to hear about our upcoming events.

 

Related Item(s): Immigration, Global Mobility

Author(s)/Speaker(s): Supinder Singh Sian, Stephen OFlaherty,

Immigration law changes continue at a pace during 2022 and employers need to be aware of key recent and upcoming developments.

Text:

In our recent webinar on 27 April 2022, we covered the following topics:

• Right to work changes since 6 April 2022

• Immigration-related fee updates

• Recent and upcoming immigration route changes including the Global Business Mobility routes, High Potential Individual and Scale-up visas

• Sponsorship reform including the Home Office’s sponsorship roadmap

• The impact of the Ukraine conflict on UK immigration

You can view the webinar in full below. If you have any queries about any of the matters covered, please get in touch with a member of our Immigration Team.

Sign up to our newsletter and be the first to hear about our upcoming events.

 

Related Item(s): Immigration, Global Mobility

Author(s)/Speaker(s): Supinder Singh Sian, Stephen OFlaherty,

New Immigration Rules were laid in Parliament last month, setting out the details of the new Scale-up and High Potential Individual routes due to be launched later this year. We take a look at these from the perspective of employers.

Text:

Statement of Changes in Immigration Rules, HC 1118, was published on 15 March 2022. This includes a number of developments expected to be helpful for businesses seeking to facilitate knowledge transfer within an international group, to set up or expand a business in the UK, or to access a bigger pool of skilled talent from abroad. This article focuses on the new Scale-up and High Potential Individual routes, and we have covered the new Global Business Mobility routes in a separate article.

High Potential Individual (HPI) route

The HPI route will launch at 9 am on 30 May 2022 and is intended for recent graduates from top universities to be able to live and work in the UK on an unsponsored basis for a limited period.

Eligibility requirements

To be eligible, an applicant must:

• Be aged 18 or over;

• Have been awarded an academic qualification equivalent to a UK bachelors or UK postgraduate degree within the five years before the date of application (an Ecctis certificate will be needed to show the equivalence of the degree);

• Have received their degree from an institution listed on the Global Universities List which will be published by the Home Office in the future on GOV.UK;

• Meet an English language requirement at or above Level B1 on the CEFR;

• Meet a financial requirement of £1,270, unless they are applying in the UK have lived in the UK with immigration permission for at least 12 months before the application;

• Hold a valid certificate certifying they are free of TB, if required;

• Pay the Immigration Health Surcharge; and

• Not previously have been granted immigration permission as a Graduate, Doctorate Extension Scheme participant or High Potential Individual.

The Global Universities List will be updated annually and will include all institutions ranked within the top 50 of at least two of the following ranking systems:

• Times Higher Education World University Rankings

• Quacquarelli Symonds World University Rankings

• Academic Ranking of World Universities

Application process and grant

It will be possible for applications to be made either from abroad or from within the UK, provided the applicant is not in the UK as a visitor with other limited (mostly short-term) immigration statuses.

The HPI route will have a similar grant profile to the Graduate route, offering successful applicants three years’ immigration permission if they have a qualification equivalent to a UK PhD, or two years if they have one that is equivalent to a UK Bachelor or Master’s degree.

Applications by partner and child dependants will be allowed.

Comments for employers

The route will not lead to settlement in its own right, or be a category under which time can be counted as part of the continuous qualifying period for settlement in any other route. It is therefore likely that some eligible applicants may prefer either to bypass the route in favour of one that leads to settlement, or will seek to switch into a settlement route as soon as they are eligible.

Employers should be aware that migrants in this route may approach them for sponsorship at some point before their HPI permission is due to expire. Sponsored options currently include the Skilled Worker route, and the Scale-up route once available.

Scale-up route

This route will be available from 22 August 2022. It will enable scale-up businesses to sponsor skilled workers for six months, while giving those workers flexibility to change employer after that period and to settle in the UK after five years’ residence. Applications by partner and child dependants are allowed.

It is intended to be a ‘fast-track’ route, however further details are awaited on how this will be achieved operationally.

Scale-up route sponsors

To be recognised as a sponsor under the route, a scale-up business will need to show annualised turnover or staffing growth of at least 20 percent for the last three years before application. They also must have had at least ten employees at the start of the three-year period. The Home Office is also considering allowing other criteria for recognition in the future.

Eligibility – sponsored applications

A sponsored application is required initially, and for individuals who are making a further application under the route where they have not been employed as a Scale-up worker by a sponsor for at least six months.

An applicant making a sponsored application must have a valid certificate of sponsorship from an A-rated sponsor.

They must have a genuine offer of employment for at least six months, in an occupation skilled to graduate level (at least Level 6 on the Regulated Qualifications Framework) and listed in Appendix Skilled Occupations as approved under the Scale-up route.

The guaranteed basic salary offered for the job must be at least £33,000 per year, £10.58 per hour, or the going rate for the occupation code, whichever is highest.

The applicant must also:

• Be aged 18 or over;

• Meet an English language requirement at or above Level B1 on the CEFR;

• Meet a financial requirement of £1,270 (or have their sponsor certify they will maintain and accommodate the applicant for up to this amount during the first month of their employment), unless they are applying in the UK have lived in the UK with immigration permission for at least 12 months before the application;

• Hold a valid certificate certifying they are free of TB, if required; and

• Pay the Immigration Health Surcharge (there is no Immigration Skills Charge under this route).

Eligibility – unsponsored applications

An applicant can make an unsponsored application if they have completed at least six months employment with their sponsor in a previous permission on the Scale-up route. If the applicant is applying for entry clearance, their permission on the route must have expired less than six months before the date of application.

In an unsponsored application, an applicant must show monthly PAYE basic salary earnings in the UK equivalent to at least £33,000 per year during at least 50 percent of their permission on the Scale-up route. Periods of unpaid absence from work due to statutory maternity/paternity/parental/shared parental leave, statutory adoption leave, or sick leave will be deemed to meet the earnings requirement provided the salary was otherwise over the £33,000 threshold.

Application process and grant

Like the HPI route, it will be possible for applications to be made either from abroad or from within the UK, provided the applicant is not in the UK as a visitor with other limited (mostly short-term) immigration statuses.

Immigration permission will be granted for two years to those who made a sponsored application, and for three years to those who made an unsponsored one.

Sponsored Scale-up migrants must be employed in their sponsored job for the first six months of their permission. Otherwise, they are allowed to be employed or self-employed in any capacity other than as a professional sportsperson or sports coach.

Eligibility – settlement

Settlement will be possible under the Scale-up route once an applicant has spent at least five continuous years in the UK on the route or in combination with the following routes:

• Skilled Worker;

• Global Talent;

• Innovator;

• T2 Minister of Religion

• International Sportsperson

• Representative of an Overseas Business

• Tier 1 Migrant, other than Tier 1 (Graduate Entrepreneur).

At the time of the settlement application, an applicant must be in employment with a PAYE salary of at least £33,000 per year.

They must also demonstrate monthly PAYE earnings in the UK equivalent to at least £33,000 per year during at least 24 months of the three years immediately before the date of application. Periods of unpaid absence will be treated in the same way as for unsponsored Scale-up applications.

An applicant for settlement must also pass the usual Knowledge of Life in the UK requirement.

Comments for sponsoring employers

Eligible scale-up businesses will need to assess whether becoming a sponsor under this route offers significant enough benefits in comparison to holding a Skilled Worker sponsor licence.

On the plus side, no Immigration Skills Charge will be payable under the route. Also, if enough scale-up businesses opt to become sponsors, this will introduce a comparatively mobile cohort of skilled workers into the UK economy, who are likely to be able to command salaries substantially above the £33,000 basic salary requirement. Some of these individuals will choose to move between scale-up businesses, so scale-ups should benefit to some extent from being able to employ them without having to complete any immigration formalities or incur the associated costs.

On the minus side, the skill and salary thresholds under the Scale-up route are higher than for Skilled Worker, and sponsored applicants are only incentivised from an immigration perspective to remain with the sponsor for six months.

Comments for other employers

Non-sponsoring employers can employ Scale-up workers at any skill or salary level. However, the worker’s ability to extend their immigration permission may be affected if they are not paid monthly, and do not earn the equivalent of £33,000 under PAYE per year in aggregate, as required. Employers may need to consider formulating a policy on what, if any, enquiries they consider it appropriate to make to a Scale-up worker about their ongoing eligibility under the route.

It would appear that in requiring a minimum level of PAYE earnings (as opposed to counting both employed and self-employed income), the Home Office may be seeking to minimise the risk that participants in the route will become employed in unskilled occupations and that their earnings may be fraudulently reported. These things were a problem under the previous Tier 1 (General) category and contributed to its discontinuation. The extent to which entrepreneurial migrants will seek to set up and be employed by their own businesses remains to be seen.

The need to calculate and monitor PAYE earnings introduces uncertainty and complexity into the journey to settlement for Scale-up worker, and inevitably, some participants will fail to meet the earnings requirements at extension or settlement stage. If this happens, an employer may be asked to sponsor the person as a Skilled Worker. Although this would result in a cost to the employer, the period of sponsorship may be relatively short as time spent under the Scale-up route will count towards settlement under Skilled Worker.

It is highly likely that amendments to this route will be made post-launch, once the Home Office has had an opportunity to assess the overall attractiveness and effectiveness of the route in contributing towards meeting the objectives of the Government’s Plan for Growth. It certainly could be a flexible and straight-forward for both businesses and skilled workers with good earnings potential.

We will be providing an update on these new routes and other UK immigration changes in our What’s Happening in Immigration Law webinar on 27 April 2022, which you can sign up for here. Alternatively, please get in touch with a member of our Immigration Team for help with any queries.

Related Item(s): Immigration

Author(s)/Speaker(s): Andrew Osborne, Supinder Singh Sian, Kathryn Denyer, Ellen Duguid,

New Immigration Rules were laid in Parliament last month, setting out the details of the new Scale-up and High Potential Individual routes due to be launched later this year. We take a look at these from the perspective of employers.

Text:

Statement of Changes in Immigration Rules, HC 1118, was published on 15 March 2022. This includes a number of developments expected to be helpful for businesses seeking to facilitate knowledge transfer within an international group, to set up or expand a business in the UK, or to access a bigger pool of skilled talent from abroad. This article focuses on the new Scale-up and High Potential Individual routes, and we have covered the new Global Business Mobility routes in a separate article.

High Potential Individual (HPI) route

The HPI route will launch at 9 am on 30 May 2022 and is intended for recent graduates from top universities to be able to live and work in the UK on an unsponsored basis for a limited period.

Eligibility requirements

To be eligible, an applicant must:

• Be aged 18 or over;

• Have been awarded an academic qualification equivalent to a UK bachelors or UK postgraduate degree within the five years before the date of application (an Ecctis certificate will be needed to show the equivalence of the degree);

• Have received their degree from an institution listed on the Global Universities List which will be published by the Home Office in the future on GOV.UK;

• Meet an English language requirement at or above Level B1 on the CEFR;

• Meet a financial requirement of £1,270, unless they are applying in the UK have lived in the UK with immigration permission for at least 12 months before the application;

• Hold a valid certificate certifying they are free of TB, if required;

• Pay the Immigration Health Surcharge; and

• Not previously have been granted immigration permission as a Graduate, Doctorate Extension Scheme participant or High Potential Individual.

The Global Universities List will be updated annually and will include all institutions ranked within the top 50 of at least two of the following ranking systems:

• Times Higher Education World University Rankings

• Quacquarelli Symonds World University Rankings

• Academic Ranking of World Universities

Application process and grant

It will be possible for applications to be made either from abroad or from within the UK, provided the applicant is not in the UK as a visitor with other limited (mostly short-term) immigration statuses.

The HPI route will have a similar grant profile to the Graduate route, offering successful applicants three years’ immigration permission if they have a qualification equivalent to a UK PhD, or two years if they have one that is equivalent to a UK Bachelor or Master’s degree.

Applications by partner and child dependants will be allowed.

Comments for employers

The route will not lead to settlement in its own right, or be a category under which time can be counted as part of the continuous qualifying period for settlement in any other route. It is therefore likely that some eligible applicants may prefer either to bypass the route in favour of one that leads to settlement, or will seek to switch into a settlement route as soon as they are eligible.

Employers should be aware that migrants in this route may approach them for sponsorship at some point before their HPI permission is due to expire. Sponsored options currently include the Skilled Worker route, and the Scale-up route once available.

Scale-up route

This route will be available from 22 August 2022. It will enable scale-up businesses to sponsor skilled workers for six months, while giving those workers flexibility to change employer after that period and to settle in the UK after five years’ residence. Applications by partner and child dependants are allowed.

It is intended to be a ‘fast-track’ route, however further details are awaited on how this will be achieved operationally.

Scale-up route sponsors

To be recognised as a sponsor under the route, a scale-up business will need to show annualised turnover or staffing growth of at least 20 percent for the last three years before application. They also must have had at least ten employees at the start of the three-year period. The Home Office is also considering allowing other criteria for recognition in the future.

Eligibility – sponsored applications

A sponsored application is required initially, and for individuals who are making a further application under the route where they have not been employed as a Scale-up worker by a sponsor for at least six months.

An applicant making a sponsored application must have a valid certificate of sponsorship from an A-rated sponsor.

They must have a genuine offer of employment for at least six months, in an occupation skilled to graduate level (at least Level 6 on the Regulated Qualifications Framework) and listed in Appendix Skilled Occupations as approved under the Scale-up route.

The guaranteed basic salary offered for the job must be at least £33,000 per year, £10.58 per hour, or the going rate for the occupation code, whichever is highest.

The applicant must also:

• Be aged 18 or over;

• Meet an English language requirement at or above Level B1 on the CEFR;

• Meet a financial requirement of £1,270 (or have their sponsor certify they will maintain and accommodate the applicant for up to this amount during the first month of their employment), unless they are applying in the UK have lived in the UK with immigration permission for at least 12 months before the application;

• Hold a valid certificate certifying they are free of TB, if required; and

• Pay the Immigration Health Surcharge (there is no Immigration Skills Charge under this route).

Eligibility – unsponsored applications

An applicant can make an unsponsored application if they have completed at least six months employment with their sponsor in a previous permission on the Scale-up route. If the applicant is applying for entry clearance, their permission on the route must have expired less than six months before the date of application.

In an unsponsored application, an applicant must show monthly PAYE basic salary earnings in the UK equivalent to at least £33,000 per year during at least 50 percent of their permission on the Scale-up route. Periods of unpaid absence from work due to statutory maternity/paternity/parental/shared parental leave, statutory adoption leave, or sick leave will be deemed to meet the earnings requirement provided the salary was otherwise over the £33,000 threshold.

Application process and grant

Like the HPI route, it will be possible for applications to be made either from abroad or from within the UK, provided the applicant is not in the UK as a visitor with other limited (mostly short-term) immigration statuses.

Immigration permission will be granted for two years to those who made a sponsored application, and for three years to those who made an unsponsored one.

Sponsored Scale-up migrants must be employed in their sponsored job for the first six months of their permission. Otherwise, they are allowed to be employed or self-employed in any capacity other than as a professional sportsperson or sports coach.

Eligibility – settlement

Settlement will be possible under the Scale-up route once an applicant has spent at least five continuous years in the UK on the route or in combination with the following routes:

• Skilled Worker;

• Global Talent;

• Innovator;

• T2 Minister of Religion

• International Sportsperson

• Representative of an Overseas Business

• Tier 1 Migrant, other than Tier 1 (Graduate Entrepreneur).

At the time of the settlement application, an applicant must be in employment with a PAYE salary of at least £33,000 per year.

They must also demonstrate monthly PAYE earnings in the UK equivalent to at least £33,000 per year during at least 24 months of the three years immediately before the date of application. Periods of unpaid absence will be treated in the same way as for unsponsored Scale-up applications.

An applicant for settlement must also pass the usual Knowledge of Life in the UK requirement.

Comments for sponsoring employers

Eligible scale-up businesses will need to assess whether becoming a sponsor under this route offers significant enough benefits in comparison to holding a Skilled Worker sponsor licence.

On the plus side, no Immigration Skills Charge will be payable under the route. Also, if enough scale-up businesses opt to become sponsors, this will introduce a comparatively mobile cohort of skilled workers into the UK economy, who are likely to be able to command salaries substantially above the £33,000 basic salary requirement. Some of these individuals will choose to move between scale-up businesses, so scale-ups should benefit to some extent from being able to employ them without having to complete any immigration formalities or incur the associated costs.

On the minus side, the skill and salary thresholds under the Scale-up route are higher than for Skilled Worker, and sponsored applicants are only incentivised from an immigration perspective to remain with the sponsor for six months.

Comments for other employers

Non-sponsoring employers can employ Scale-up workers at any skill or salary level. However, the worker’s ability to extend their immigration permission may be affected if they are not paid monthly, and do not earn the equivalent of £33,000 under PAYE per year in aggregate, as required. Employers may need to consider formulating a policy on what, if any, enquiries they consider it appropriate to make to a Scale-up worker about their ongoing eligibility under the route.

It would appear that in requiring a minimum level of PAYE earnings (as opposed to counting both employed and self-employed income), the Home Office may be seeking to minimise the risk that participants in the route will become employed in unskilled occupations and that their earnings may be fraudulently reported. These things were a problem under the previous Tier 1 (General) category and contributed to its discontinuation. The extent to which entrepreneurial migrants will seek to set up and be employed by their own businesses remains to be seen.

The need to calculate and monitor PAYE earnings introduces uncertainty and complexity into the journey to settlement for Scale-up worker, and inevitably, some participants will fail to meet the earnings requirements at extension or settlement stage. If this happens, an employer may be asked to sponsor the person as a Skilled Worker. Although this would result in a cost to the employer, the period of sponsorship may be relatively short as time spent under the Scale-up route will count towards settlement under Skilled Worker.

It is highly likely that amendments to this route will be made post-launch, once the Home Office has had an opportunity to assess the overall attractiveness and effectiveness of the route in contributing towards meeting the objectives of the Government’s Plan for Growth. It certainly could be a flexible and straight-forward for both businesses and skilled workers with good earnings potential.

We will be providing an update on these new routes and other UK immigration changes in our What’s Happening in Immigration Law webinar on 27 April 2022, which you can sign up for here. Alternatively, please get in touch with a member of our Immigration Team for help with any queries.

Related Item(s): Immigration

Author(s)/Speaker(s): Andrew Osborne, Supinder Singh Sian, Kathryn Denyer, Ellen Duguid,

On 29 March 2022, the Home Office published new Immigration Rules covering immigration schemes aimed at facilitating the grant of UK immigration permission for Ukrainian citizens and their families. In addition to bringing the existing Ukraine Family Scheme and Homes for Ukraine Sponsorship Scheme within the Rules from 30 March 2022, a new Ukraine Extension Scheme will launch from 3 May 2022.

Text:

The Statement of Changes in Immigration Rules, HC 1220, also introduces a new Appendix Relationship with Partner, which will be used from 30 March 2022 to set out the relationship requirements for individuals applying as a spouse, civil partner or unmarried partner in a durable relationship of at least two years. Initially this appendix will only be relevant for applications under the Ukraine schemes, but will be applied to other immigration categories at a later date.

Applicant eligibility under the Ukraine Extension Scheme

To be eligible, an applicant must be:

• A Ukrainian citizen;

• A partner or child of a Ukrainian citizen who has/last had UK immigration permission in that capacity; or

• A child of a Ukrainian citizen born in the UK after 18 March 2022.

Applicants must also be in the UK and have had UK immigration permission on 18 March 2022 unless:

• They were in the UK with permission immediately before 1 January 2022 and that permission has expired by the time they make their application; or

• They are a child born in the UK after 18 March 2022.

Application process and grant

The application will be free of charge and applicants must provide their biometrics at a UKVCAS service point.

Immigration permission will be granted for up to three years. Those who have previously been granted immigration permission under any of the Ukraine Schemes will be granted a shorter period, to take the total permission under the Schemes up to three years.

UES participants will be allowed to work, study, rent private accommodation, use the NHS, access English language tuition and claim benefits in the UK.

Details of how to apply under UES will be made available on GOV.UK closer to the launch date.

For specific queries, individuals can contact a free 24/7 UKVI helpline on +44 808 164 8810 (0808 164 8810 from within the UK), or +44 (0)175 390 7510 for those who cannot contact UK 0808 numbers.

Outstanding issues for the UES

There will be some UES-eligible applicants whose UK immigration permission is due to expire between now and when the scheme launches on 3 May 2022. The Home Office has not yet made any announcement confirming that these individuals will not be subject to the usual measures that apply to overstayers until such time as permission is granted under UES, or whether they are expected to apply under existing routes in the interim. We have sought clarification on this.

Also, the UES will not cover dependants of individuals are currently in the UK in categories that do not permit dependants, such as the Seasonal Worker category. Once granted permission under UES, Seasonal Workers may be able to sponsor dependants under the Homes for Ukraine Sponsorship Scheme, however this will only be after a significant delay. We have flagged this to the Home Office as a policy issue to consider.

Lastly, it is still not clear whether any of the Ukraine schemes will offer a path to settlement in the UK. Those who want the security of being able to settle in the UK may therefore prefer to switch into or extend under another UK immigration route they are eligible for.

Other points to note in the new Rules

HC 1220 confirms other important points:

• Applicants under the Ukraine schemes can apply for entry clearance from any Visa Application Centre around the world (although displaced individuals seeking to apply in certain other categories will still need to ask the Home Office to exercise discretion if applying from a country they are only present in as a visitor);

• Applicants under the Homes for Ukraine Sponsorship Scheme must be aged 18 or over on the date of application, unless they are applying with, or to join in the UK a parent or legal guardian;

• Individuals granted immigration permission after 18 March 2022 as a visitor will not be eligible to apply for the Ukraine Family Scheme from within the UK; and

• Those whose application under the Ukraine schemes is refused will not have a right of administrative review, however it will be open to them to reapply.

We will continue to provide updates on significant UK developments as they arise. For those who are interested in understanding what guidance and help has been made available for Ukrainian refugees in the EU and beyond, and the broader consequences of the war from a work perspective, see Ukraine in Crisis – Ius Laboris.

 

Related Item(s): Immigration

Author(s)/Speaker(s): Andrew Osborne, Supinder Singh Sian, Kathryn Denyer,

On 29 March 2022, the Home Office published new Immigration Rules covering immigration schemes aimed at facilitating the grant of UK immigration permission for Ukrainian citizens and their families. In addition to bringing the existing Ukraine Family Scheme and Homes for Ukraine Sponsorship Scheme within the Rules from 30 March 2022, a new Ukraine Extension Scheme will launch from 3 May 2022.

Text:

The Statement of Changes in Immigration Rules, HC 1220, also introduces a new Appendix Relationship with Partner, which will be used from 30 March 2022 to set out the relationship requirements for individuals applying as a spouse, civil partner or unmarried partner in a durable relationship of at least two years. Initially this appendix will only be relevant for applications under the Ukraine schemes, but will be applied to other immigration categories at a later date.

Applicant eligibility under the Ukraine Extension Scheme

To be eligible, an applicant must be:

• A Ukrainian citizen;

• A partner or child of a Ukrainian citizen who has/last had UK immigration permission in that capacity; or

• A child of a Ukrainian citizen born in the UK after 18 March 2022.

Applicants must also be in the UK and have had UK immigration permission on 18 March 2022 unless:

• They were in the UK with permission immediately before 1 January 2022 and that permission has expired by the time they make their application; or

• They are a child born in the UK after 18 March 2022.

Application process and grant

The application will be free of charge and applicants must provide their biometrics at a UKVCAS service point.

Immigration permission will be granted for up to three years. Those who have previously been granted immigration permission under any of the Ukraine Schemes will be granted a shorter period, to take the total permission under the Schemes up to three years.

UES participants will be allowed to work, study, rent private accommodation, use the NHS, access English language tuition and claim benefits in the UK.

Details of how to apply under UES will be made available on GOV.UK closer to the launch date.

For specific queries, individuals can contact a free 24/7 UKVI helpline on +44 808 164 8810 (0808 164 8810 from within the UK), or +44 (0)175 390 7510 for those who cannot contact UK 0808 numbers.

Outstanding issues for the UES

There will be some UES-eligible applicants whose UK immigration permission is due to expire between now and when the scheme launches on 3 May 2022. The Home Office has not yet made any announcement confirming that these individuals will not be subject to the usual measures that apply to overstayers until such time as permission is granted under UES, or whether they are expected to apply under existing routes in the interim. We have sought clarification on this.

Also, the UES will not cover dependants of individuals are currently in the UK in categories that do not permit dependants, such as the Seasonal Worker category. Once granted permission under UES, Seasonal Workers may be able to sponsor dependants under the Homes for Ukraine Sponsorship Scheme, however this will only be after a significant delay. We have flagged this to the Home Office as a policy issue to consider.

Lastly, it is still not clear whether any of the Ukraine schemes will offer a path to settlement in the UK. Those who want the security of being able to settle in the UK may therefore prefer to switch into or extend under another UK immigration route they are eligible for.

Other points to note in the new Rules

HC 1220 confirms other important points:

• Applicants under the Ukraine schemes can apply for entry clearance from any Visa Application Centre around the world (although displaced individuals seeking to apply in certain other categories will still need to ask the Home Office to exercise discretion if applying from a country they are only present in as a visitor);

• Applicants under the Homes for Ukraine Sponsorship Scheme must be aged 18 or over on the date of application, unless they are applying with, or to join in the UK a parent or legal guardian;

• Individuals granted immigration permission after 18 March 2022 as a visitor will not be eligible to apply for the Ukraine Family Scheme from within the UK; and

• Those whose application under the Ukraine schemes is refused will not have a right of administrative review, however it will be open to them to reapply.

We will continue to provide updates on significant UK developments as they arise. For those who are interested in understanding what guidance and help has been made available for Ukrainian refugees in the EU and beyond, and the broader consequences of the war from a work perspective, see Ukraine in Crisis – Ius Laboris.

 

Related Item(s): Immigration

Author(s)/Speaker(s): Andrew Osborne, Supinder Singh Sian, Kathryn Denyer,

Around the world people are deeply shocked and saddened about the escalating war in Ukraine.

Many employers are increasingly concerned about the wellbeing of their employees, particularly those from Ukraine or other Eastern European countries, and are considering how to best support refugees. Employers with operations in Russia are also dealing with the impact of the sanctions.

Text: In this article we highlight some of the legal and practical implications of the conflict for the employment relationship.  

Military service and other requests to take part in the conflict

In the UK there are specific arrangements for individuals who are called up to UK reserved armed forces. While these do not apply to nationals of other countries being called up for military service by their home country, employers might want to follow a similar approach. In this article, we set out considerations relating to non-UK nationals who are called up to active duty by their home country and also considerations relating to other nationals who wish to take part in the conflict.  

Getting workers out of Ukraine

Due to the escalating conflict and dangerous situation, many employers are helping workers to relocate to safety outside Ukraine. Some employers are providing workers with options for border crossings and/or helping with applications for refugee or asylum status in other countries. Employers should be careful not to help workers leave Ukraine in breach of the recent military conscription order prohibiting men aged 18 to 60 years from leaving the country.

Emigration options for Ukrainians

Many countries are amending or relaxing visa and other entry requirements for Ukrainian nationals.

EU Member States are currently implementing the Temporary Protection Directive (the Directive), which allows Member States to authorise temporary residency on humanitarian grounds for Ukrainian citizens and eligible Ukrainian residents leaving Ukraine. The Directive is explained here. Countries outside the EU have also introduced more flexible immigration conditions and other help for Ukrainians, see here. 

In the UK, the Home Office has put in place immediate concessions and has implemented two new immigration schemes for Ukrainian nationals in response to the conflict, which we covered in this article and this guide.

Under the Ukraine Family Scheme, Ukrainian citizens and their eligible family members are able to join an eligible UK-based family member. Under the Homes for Ukraine Scheme, individuals with at least six months’ immigration permission in the UK are able to act as sponsors for Ukrainian refugees and their immediate family members, if they are willing to offer them a room in their home or separate self-contained accommodation for a minimum period of six months. Details for sponsorship by businesses and other organisations will be released at a later date.

Under both the Ukraine Family Scheme and the Ukraine Sponsorship Scheme, successful applicants will be granted immigration permission for up to three years.
The UK Ukrainian schemes currently provide immigration permission outside the UK’s immigration rules and will be written into the immigration rules in the near future. Other displaced groups have received different treatment and must make either an asylum or humanitarian protection claim. It is possible, therefore, that this disparity of treatment will become a political issue in the future. 

Employing Ukrainians in the UK

Many employers are considering how to best support or employ Ukrainian refugees. For example, a large number of employers have formed a consortium to help connect Ukrainians arriving in the UK to secure employment opportunities. Little detail has emerged of how this will be achieved, which is presumably due to discrimination laws in the UK significantly limiting the extent to which employers can prioritise one nationality over another.
UK employers should tread carefully if they are considering prioritising Ukrainians for roles or potentially ring-fencing employment opportunities for them. They may face direct or indirect discrimination claims for giving preferential treatment to Ukrainians over other nationalities or even for giving preference to the broader category of people with the right to work in the UK under a humanitarian scheme. There is currently no indication that amendments will be made to the UK discrimination legislation, in relation to Ukrainian refugees, to limit employers’ potential exposure to uncapped damages and awards for injury to feelings for discrimination claims.

Other employer support for Ukrainians in the UK

The UK discrimination legislation allows employers to take ‘positive action’ to support people who are suffering a disadvantage or have particular needs. Given the harrowing circumstances under which Ukrainians have fled to the UK, leaving behind their homes, family members and jobs, there is likely a strong argument that Ukrainian nationals can be said to suffer a disadvantage and/or have particular needs.

What options are feasible will, of course, depend on the resources and structure of the employer in question, but some options that could be considered within the framework of positive action are: 

• offering short, paid work experience placements;
• ensuring that any qualifications required are genuinely required for the role and not operating as unnecessary barriers and that, where qualifications are required, the employer recognises equivalent overseas qualifications;
• providing language support during recruitment and, possibly, within the workplace going forward;
• offering language and vocational training opportunities;
• offering bursaries;
• funding childcare (given the impact of conscription, the majority of Ukrainian refugees are expected to be women and children); and
• mentoring schemes (where existing staff help Ukrainian refugees to gain an understanding of the workplace and provide assistance with CVs and job applications generally).

Whilst employers have limited scope to offer employment on the basis of nationality, charities have more scope to provide support (if not employment) to Ukrainian refugees. Therefore, donating to relevant charities could be a positive way to assist refugees without bearing the risks associated with the measures considered above. Some employers are also giving their employees time off to volunteer for a charity or to prepare for receiving refugees into their home.

Getting workers out of Russia

Employers with operations in Russia may be dealing with requests from Russian workers to leave Russia, which raises considerations of an employer’s duty of care towards its workers in Russia.   

Employers may also be considering repatriating foreign or ‘expat’ workers they have sent to Russia. The ability to do so will likely be included in the worker’s contract or assignment, with repatriation costs borne by the employer. Relocating these employees to other jurisdictions causes other legal issues, which are covered below.

Emigration options for Russian workers

Russian citizens are currently still able to make UK entry clearance applications. However, those who have already fled outside Russia may not be able to have their application approved if they apply from a country they are present in as a visitor. This is because for many immigration categories, the applicant must apply from a country they are ‘living’ in. Some immigration-related services in Russia, such as English-language testing, may also be suspended. Where a person cannot meet the requirements of the UK’s immigration rules in full, it is possible for discretion to be exercised to waive a requirement, however the Home Office may not be inclined to do this due to the sanctions currently being in force against Russia. 

Applications for Russian citizens may also be delayed if an application is considered to be complex or if additional security checks are carried out.
The Nationality and Borders Bill that is currently progressing through the UK Parliament contains provisions to impose visa penalties on countries the Home Secretary considers to have taken action that:

• poses or is likely to pose a threat to international peace and security; 
• results or is likely to result in armed conflict; or
• gives or is likely to give rise to a breach of international humanitarian law. 

Once the relevant provisions of the Bill are commenced, it is possible that visa penalties could be written into the immigration rules that would mean that entry clearance applications made by Russian citizens could be stopped from being granted, could be held to be invalid or could require an additional fee of GBP 190 to be paid. The penalties would not be applied to any applications in process before the date the rules are amended.

Impact of sanctions   

The sanctions imposed on Russian corporate entities and the related restrictions on international financial transactions are affecting the ability of employers (with Russian entities) to pay their Russian workforces. This is leading some employers to consider various options including declaring a ‘downtime’, encouraging employees to take annual leave, making employees redundant and potentially, closing their operations in Russia. Russian employment law advice should be taken on these options.

Ukrainians and Russian workers carrying out remote work

The relocation of Ukrainian and Russian workers to other countries could lead to employers finding that they have workers in locations where they previously had no presence. Employees may gain certain employment rights in these countries, particularly where they work in the country for some time. Employers should also consider whether an employee’s stay in a country creates an income tax or social security liability for the employer and also, potentially, whether the employee’s activities or presence in the host country will create a permanent establishment for the employer in that country. From a UK perspective this would be the case if, for example, the employee has a sales or business development role and is habitually exercising the authority to conclude contracts in the name of the employer while in the host country. Local rules may provide for a more expansive definition of a permanent establishment. We covered these issues here and here.  

Supporting employees in the workplace

The situation in Ukraine is very distressing for many people and it may also cause conflict in the workplace between those with different views (for example, workplaces with Ukrainian and Russian employees). Employers should consider ways to support their Ukrainian, Eastern European and Russian nationals, or indeed employees from any nationality who feel affected by the events. For example, this will include reminding staff of policies on bullying and harassment and being prepared to deal with potential conflicts between employees who may have opposing views on the events in line with these policies, including taking disciplinary action if necessary. Other ways employers may wish to support employees in the workplace are covered here.

 

Related Item(s): Employment

Author(s)/Speaker(s): James Davies, Joanna Mackey, Kathryn Denyer, Rebecca Jobling,

New Immigration Rules have recently been laid in Parliament, setting out the details of the Global Business Mobility routes. These replace the existing Intra-Company Transfer routes, the Representative of an Overseas Business provisions for sole representatives and the contractual service provider element of the International Agreement route. New provisions are also introduced for secondees whose employer has a high value contract or investment in the UK.

Text:

On 15 March 2022, the Home Office published a Statement of Changes in Immigration Rules, HC 1118. This includes a number of developments expected to be helpful for businesses seeking to facilitate knowledge transfer within an international group, to set up or expand a business in the UK, or to access a bigger pool of skilled talent from abroad. This article covers the Global Business Mobility routes, and we will cover other developments of interest to employers in a separate article.

Global Business Mobility routes (GBM)

The five Global Business Mobility (GBM) routes are due to be introduced from 9 am on 11 April 2022. They re-package and reform existing routes.

GBM migrants may only be granted immigration permission for up to five years in any six year period, with the exception of high earning senior or specialist workers (SSWs), who may be granted a maximum of nine years in any ten-year period.

Aside for some transitional arrangements for existing Intra-Company Transferees, GBM migrants will not be allowed to carry out supplementary employment. The policy logic of this appears to be that workers connected with international businesses should focus solely on the work tasks they have been brought to the UK to fulfil. 

Senior or Specialist Worker

The Senior or Specialist Worker (SSW) strand of the GBM routes reforms and replaces the Intra-Company Transferee (ICT) route. It is designed for use by senior managers and specialist employees of an international group business who are being transferred to one of the group’s UK businesses.

Many of the elements of the ICT route are carried over from ICT, including that the minimum skill level is Regulated Qualifications Framework (RQF) Level 6 (graduate level equivalent) and that there is no English language requirement. SSWs must be working for the sponsor group at the time of application, and have worked for the group abroad for at least 12 months unless they are a high earner.

Certain occupation codes for creative occupations are removed as follows:

• 3411 Artists
• 3412 Authors, writers and translators
• 3413 Actors, Entertainers and presenters
• 3414 Dancers and choreographers
• 3422 Product, clothing and related designers

Although applicants under these codes will be able to extend their stay under transitional arrangements, new applicants will need to use either the Skilled Worker or Temporary Work – Creative Worker routes instead. This will require their sponsor to have a sponsor licence under the relevant route.

Although the Migration Advisory Committee (MAC) recommended this route should lead to settlement, the Home Office has rejected this. However, in line with the MAC’s suggestions, the minimum salary threshold is raised from £41,500 to £42,400 and the high earner threshold of £73,900 is maintained. 

The maximum grant of immigration permission under this strand is five years after the start date of the UK assignment, and subject to the overall maximum grant periods for the GBM routes.

Because the skill level and bar to settlement for SSWs is the same as it was for the ICT route, we anticipate a continuation of the trend for global businesses to apply for and hold Skilled Worker sponsor licences in addition to licences under the GBM routes. Doing this enables them to transfer certain employees whose occupation skill level is between RQF Level 3 and 5, or who wish to settle in the UK. Holding a Skilled Worker sponsor licence also leaves open the possibility of recruiting EEA/Swiss citizens who do not meet the requirements of the GBM routes. 

Graduate Trainee

The new Graduate Trainee provisions reform and replace the Intra-Company Transfer Graduate Trainee route for work placements in the UK as part of a graduate training course leading to a senior management or specialist position within an international business. The minimum salary requirement is raised from £23,000 to £23,100. The salary must also be above 70% of the going rate for the relevant occupation, and the occupation must be listed as an eligible occupation for the GBM routes.

Graduate Trainees must have worked for the sponsor group for at least the three months immediately before the date of application.

The maximum grant of immigration permission under this strand is one year after the start date of the UK assignment, and subject to the overall maximum grant periods for the GBM routes.

UK Expansion Worker

The UK Expansion Worker strand replaces and expands the Representative of an Overseas Business provisions for sole representatives. People who already have immigration permission as a sole representative will still be able to extend in this capacity and settle, and the overseas media representative provisions also remain in place.

The new Rules for UK Expansion Workers will allow a team of key senior management or specialist employees of an overseas business with no trading presence in the UK to staff the set-up phase of a UK branch or wholly owned subsidiary, whereas the current provisions only allow for the transfer of one senior executive.

Unlike the sole representative provisions, the new GBM strand requires a sponsor and does not lead to settlement. Under the new provisions, there also is no prohibition on an applicant having a controlling interest in the overseas business.

Sponsor guidance is expected to be released shortly, and this should outline the criteria for sponsorship and how many workers can be sponsored under the strand. The MAC previously recommended a maximum of five workers. 

UK Expansion Workers must be paid at least £42,400 or the going rate for their occupation, whichever is higher. They must also have worked for a connected business of the sponsor abroad for at least 12 months unless they are a high earner or a Japanese citizen and the branch or subsidiary falls within the UK-Japan Comprehensive Economic Partnership Agreement.

Immigration permission may be granted for up to one year initially and extended up to a maximum of two years. 

In practice, individuals who come to the UK under this strand but ultimately aim to settle in the UK are likely to want to set up a Skilled Worker sponsor licence and switch into the Skilled Worker route as soon as possible. This is because time spent under the Expansion Worker strand cannot be counted towards the qualifying period for settlement in any other immigration category, including Skilled Worker.

The relevant businesses may also wish to set up a GBM SSW licence to facilitate the transfer of employees from group businesses abroad on a longer-term basis.  

Service Supplier

This strand reforms the Temporary Work – International Agreement provisions for service suppliers coming to the UK to provide services in line with one of the international trade agreements the UK is a party to.

‘Service suppliers’ are defined as contractual service suppliers employed by an overseas business, or self-employed independent professionals based overseas. 

Under the new provisions, applicants must:

• Have a certificate of sponsorship from a sponsor licenced for the strand, including a confirmation they will be paid at least the national minimum wage;
• Either be filling a job in an occupation listed as eligible for the GBM routes under Appendix Skilled Occupations, or have a university degree or equivalent technical qualification, subject to limited exceptions;
• Be working as or for the overseas service provider at the time of application and outside the UK for at least a cumulative period of 12 months; 
• Normally have at least three years’ professional experience in the sector they will be working in; and
• Meet certain requirements regarding being a national or permanent resident of the country they are based in.

Immigration permission under this strand will be granted for up to 12 months if the relevant international agreement being relied on is the UK-EU Trade and Cooperation Agreement or the UK-Swiss trade agreement, or up to six months in all other cases. 

Secondment Worker 

The Secondment Worker strand covers individuals being seconded to the UK as part of a ‘high value contract or investment by their overseas employer’.

Sponsorship must be provided by the UK business involved in the transaction, and the relevant contract must be registered with the Home Office. It is anticipated that the Home Office will assess the value of the contract at that stage.

A secondment worker also must:

• Have a certificate of sponsorship from a sponsor licenced for the strand, including a confirmation they will be paid at least the national minimum wage;
• Be filling a job in an occupation listed as eligible for the GBM routes under Appendix Skilled Occupations;
• Be working for the overseas business their sponsor has a Home Office-registered contract with at the time of application; and
• Have worked for the overseas business for a cumulative period of at least 12 months.

Immigration permission may be granted for up to one year initially and extended up to a maximum of two years. 

Secondment Workers may be accompanied by dependants, whereas the dependants of secondee visitors were previously granted leave outside the Immigration Rules.

The secondee visitor provisions that currently cover secondees from clients of UK export companies are not deleted under the Statement of Changes. So, for the time-being, these are still available for use where they are met.

We will be covering the HC 1118 Immigration Rule changes in detail in our upcoming Immigration Law Academy on 29 and 30 March 2022. For further information and to register, see here. Alternatively, please get in touch with a member of our Immigration Team for help with any queries.

Related Item(s): Immigration, Global Mobility

Author(s)/Speaker(s): Andrew Osborne, Supinder Singh Sian, Stephen OFlaherty, Li Xiang,