From 1 February 2022, the Home Office has corrected its Immigration Health Surcharge (IHS) portal to address previous undercharging for sponsored workers.

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Stakeholders were notified of the change on 4 February 2022 via email communication.

What has changed?

Historically, the portal used the length of a main applicant’s Certificate of Sponsorship (CoS) to calculate the amount payable for the IHS, whereas underlying secondary legislation requires the IHS to be charged according to the length of immigration permission granted to the person.

No IHS is payable where UK immigration permission is granted up to a total of six months in duration. After that, IHS is payable at a rate of £624 per year per individual. If the person’s immigration permission includes part of a year up to six months, then they will pay £312 for that part-year. If the part-year is over six months, then they will pay the full annual amount of £624 for that part-year.

The Immigration Rules provide for sponsored workers to be granted immigration permission for a short period before and after the dates listed on their CoS. This means that in many cases the portal has been undercharging main applicants by £312. The system error did not affect the calculation of IHS payments for dependants.

For example, the Immigration Rules state that a Skilled Worker CoS can be issued for up to 5 years. An application may be submitted up to three months before the start date noted on the CoS, and immigration permission may be granted for 14 days after the end date of the CoS. So, a person with a CoS issued for 5 years may be granted immigration permission anywhere between 5 years and 14 days, and 5 years, 3 months and 14 days. The system change means that they would have to pay IHS covering 5-and-a-half years instead of 5 years.

Can a sponsor avoid this additional cost?

A sponsor may be able to avoid this additional cost by reducing the length of the CoS. How much this would need to be reduced by in a specific case will depend on the sponsored work category and how far in advance of the CoS start date the immigration permission is likely to be valid from.

A sponsor would also need to consider whether reducing the length of a CoS may lead to a shortfall in the overall immigration permission required for a sponsored worker to qualify for settlement. Too much of a reduction could potentially lead to an additional extension application needing to be made, with all the attendant cost and administration.

If you have any queries about the implications of this change, please get in touch with a member of our Immigration Team.

Related Item(s): Immigration, Sponsoring Migrant Workers

Author(s)/Speaker(s): Andrew Osborne, Supinder Singh Sian, Stephen OFlaherty, Priya Gandhi,

From 15 February 2022, care workers and home carers will be recognised on the Skilled Worker shortage occupation list. They will also become eligible to apply for the Health and Care Worker visa sub-category of the route.

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The new arrangements have been confirmed in a Statement of Changes in Immigration Rules, HC 1019, published on 24 January 2022. This follows on from the Government’s announcement earlier this month that it would be accepting urgent recommendations made by the Migration Advisory Committee (MAC) regarding sponsorship of carers in its December 2021 annual report. 

The Home Office has stated that these arrangements will be in place for an initial 12-month period. A review of their success and whether there is a continued need for them has been scheduled for late 2022. 

In April 2022, the MAC is due to release a detailed report on the impact the ending of free movement from Europe has had on the adult social care sector. It is possible that further amendments to the Immigration Rules will be recommended at that stage. 
 

What will care workers and home carers need to apply?

The following requirements will need to be satisfied for applications made on or after 15 February 2022:

• The applicant has a job offer under standard occupational classification (SOC) code 6145 Care workers and home carers (which includes care assistants, care workers, carers, home care assistants, home carers and nursing home support workers);
• The job offer is from a sponsor licensed by the Home Office under the Skilled Worker route;
• The applicant will not be working for a private household or individual (other than a sole trader sponsoring the applicant to work for their business);
• The sponsor is approved by the Home Office to sponsor workers under the Health and Care Worker visa – broadly this is the NHS, an organisation providing medical services to the NHS or an organisation providing adult social care;
• The salary for the job is at least £20,480 or £10.10 per hour, whichever is higher (note there is no ‘going rate’ specified for this occupation code);
• The applicant provides acceptable criminal record certificates from all countries they have lived in for 12 or more months in the last 10 years, and while they were aged 18 or over; and
• The applicant meets the English language, tuberculosis screening and financial requirements of the Skilled Worker route.

The sponsor guidance and guidance to applicants on GOV.UK will need to be updated to reflect these changes, however this may not happen until 15 February 2022.

When assigning a certificate of sponsorship to an applicant (once the Sponsor Management System has been updated to recognise the addition of the new occupation code), the sponsor will need to include an explanation of how the individual meets the Health and Care visa eligibility requirements. The sponsor must also tell the applicant they are being sponsored under the Health and Care visa, to ensure the correct immigration application form is completed. This is because Health and Care visa applicants and their dependants benefit from reduced visa application fees, are not required to pay the Immigration Health Surcharge and are eligible for expedited visa processing.

What else is significant about these changes?

For the first time since the Skilled Worker route was introduced in December 2020, the Government has used the shortage occupation list to enable an occupation to be sponsored with a lower skill level than level 3 on the Regulated Qualifications Framework (RQF), i.e. A-level equivalent. It would therefore seem more possible now that the Home Office may use the same mechanism to enable other occupations below RQF level 3 to be sponsored in the future, e.g. if there are sufficient economic or other reasons for the MAC to recommend this, or if the Government otherwise sees fit. 

It will be interesting to see whether the Home Office will remove this occupation after a short time, or if it will remain in place long-term due to the significant structural difficulties with recruiting and retaining care workers. There is a precedent for long-term inclusion of health and care sector workers on the shortage occupation list, with the MAC ‘reluctantly’ recommending the retention of nurses as a shortage occupation in 2016. Nurses have remained on the list since that time despite the MAC having expressed the view that shortages could be resolved by the sector “providing sufficient incentive and opportunity”. 

In any event, how much uptake there will be will depend on whether employers in the care sector are willing to take on the responsibility of being a sponsor for these workers, and whether they have the financial capacity to pay the salary required.

On the technical side, HC 1019 introduces an express prohibition on applicants under SOC code 6145 being sponsored by private households or individuals (other than sole traders recruiting someone to work for their business), on the basis that this is not permissible in general for the sponsorship of Skilled Workers. This may indicate the Home Office’s general view on other occupations, and in particular SOC 6122 Childminders and related occupations, which includes au pairs, child care assistants, child minders and nannies. Since the Skilled Worker route opened, there has been significant controversy over whether and under what circumstances childminder roles can be sponsored, with many applications being refused. Nevertheless, until the sponsor guidance and/or the Immigration Rules are further amended, the express exclusion of Skilled Worker sponsorship by a private household or individual will only apply to SOC code 6145. 

The Statement also does not amend Appendix Skilled Occupations to remove SOC code 6145 from being an occupation ineligible for sponsorship under the Skilled Worker route. This is not ideal drafting, because to confirm eligibility, sponsors and their advisers will have to become aware that they must look at the new Table 3 in Appendix Shortage Occupation List, which is headed ‘Shortage occupations which are otherwise not eligible for the Skilled Worker route’.

If you have any queries about the new provisions or the other matters raised in this article, please get in touch with a member of our Immigration Team.

 

Related Item(s): Immigration

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

The Home Office has confirmed that the new tool will only be used to validate right to work checks on valid British and Irish passports.

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On 17 January 2022, the Home Office published an update to the Employer right to work checks supporting guidance (also called An employer’s guide to right to work checks), to include a new Annex F. This covers digital identity verification guidance for employers and identity service providers (IDSPs) regarding the implementation of a new Identity Document Validation Technology (IDVT) from as early as 6 April 2022. See our previous article for background information on IDVT. 

The Department for Digital, Culture, Media and Sport also published related information on how technology companies can become certified as an IDSP. 

What documents and verifications will IDVT cover?

IDVT will only be available for verifying the identity of the following documents:

• Valid British passports
• Valid Irish passports
• Valid Irish passport cards

The technology will provide a five-part identity checking process:

• Getting evidence of the claimed identity (i.e. uploading a copy of the passport or passport card)
• Checking the evidence is genuine or valid
• Checking that there is a history of the claimed identity
• Checking whether the claimed identity is at high risk of identity fraud
• Checking the identity belongs to the person claiming it

The guidance confirms that the last stage will involve the employer making an image of the individual claiming a right to work, either in at an in-person meeting or on a video call, and providing this to the IDSP with a confirmation it is a true likeness of the individual. It would seem likely that the IDSP would then check the image against the biometric information recorded in the passport or passport card to see if they match.

Employers will still be able to accept expired British and Irish passports (including passport cards) for right to work check purposes, but will be required to check these manually. They will also still need to carry out manual checks on other physical documents where an employee or proposed employee is eligible to rely on them, or needs to use them to confirm a change of name or gender. 

Separately, employers should note that from 6 April 2022, manual checks will no longer be acceptable for holders of biometric residence permits (BRPs), biometric residence cards (BRCs) and frontier worker permits. These will have to be checked online.

Although following the implementation of IDVT employers will be able to carry out the majority of right to work checks either using IDVT or the Home Office’s online right to work check systems, they will need to put processes in place to handle and check original documents once COVID-19 adjusted checks end. This is currently due to be after 5 April 2022. 

It remains to be seen whether employers will be content to carry out manual checks on an ad hoc basis due to the relatively low volumes this would involve. It is possible they may request a further extension to adjusted checks if the logistical challenges associated with the rise of remote and hybrid working patterns are considered still to be significant despite the availability of IDVT.

What else does the new guidance tell employers about using IDVT?

The guidance is clear that employers who use IDVT provided by an IDSP will still ultimately be responsible for each right to work check carried out. However, an employer will be able to rely on a verified identity from a certified IDSP as providing the required level of confidence for the purposes of claiming a statutory excuse against being liable for an illegal working civil penalty.

This would seem to suggest that employers will be able to opt out of using IDVT if they choose. 

When will IDVT be available?

The new guidance goes no further than confirming that enabling legislation is due to be in effect from 6 April 2022. This still leaves ambiguity around whether IDVT will be ready to go live from or after this date.

What will using IDVT cost?

The updated guidance does not provide any cost information, so this will need to be confirmed at a later date.

Need more information?

We will continue to monitor for further developments and provide updates as more information becomes available.We are also running our next Immigration Law Academy on 29 and 30 March 2021, which includes a detailed analysis of the current and upcoming requirements for right to work checks. For further information and to register, click here.

If you have any specific queries around these changes or right to work requirements, please get in touch with a member of our Immigration Team.

Related Item(s): Immigration, Right to Work

Author(s)/Speaker(s): Andrew Osborne, Supinder Singh Sian, Li Xiang, Tom McEvoy,

The Home Office has published preliminary information on the new technology employers will be able to use to make digital right-to-work checks for employees who are currently outside the scope of the existing online systems.

Text: This is contained in a policy paper, Identity Document Validation Technology in the Right to Work and Right to Rent Schemes, and DBS pre-employment checking, which was published on 27 December 2021.

What is Identity Document Validation Technology (IDVT) and what will it be used for?

During the pandemic, the Home Office introduced adjusted right to work checks, which have assisted employers to carry out their right to work checking responsibilities without having to handle physical documents. This has been well-received by employers, but the downside of the process is an increased risk of individuals being able to use fraudulent documents to secure employment.

Due to the permanent trend towards hybrid and remote working and pressure from employers, in September 2021 the Home Office agreed that it would be appropriate to end adjusted right to work checks after 5 April 2022, once a more secure long-term solution is in place to facilitate remote manual checks without the need for physical document handling.

IDVT is the digital tool the Home Office intends to make available after adjusted right to work checks end. The new tool will allow individuals who are not able to access existing online right to work checks, such as British and Irish citizens, to upload images of their physical right to work documents and have these analysed remotely to verify their identity.

IDVT will also be used to carry out right to rent and Disclosure and Barring Service (DBS) checks.

The tool will be offered by one or more private sector identity service providers, who will have to apply for and receive certification under the government’s UK Digital Identity and Attributes Trust Framework. Details of the certification process are due to be released later this month.

When will IDVT be available?

Enabling legislation is due to be in effect from 6 April 2022, so this is the earliest date the technology can go live.

Intending service providers will only have a short timeframe to complete the certification process, and it is not yet known whether the technology itself will be ready to deploy by 6 April 2022. If IDVT is not ready on time, it is highly likely that adjusted checks may be extended for a further period.

What will using IDVT cost?

Although it seems clear that individuals will interact with the tool to upload their documents, no details have been provided yet on how employers will access it, and what the cost will be. It seems most likely that any cost will be borne by employers.

The use of private sector identity service providers and a user-pays system is likely to prove controversial as it will create a two-tier system of free online right to work checks and paid-for IDVT checks.

Will manual right to work checks still be allowed?

On 17 December 2021, the Home Office confirmed it will not be possible to do manual right to work checks on biometric residence permits, biometric residence cards and frontier worker permits after 5 April 2022. For further information on this change, see our article here. 

It is not yet clear what other changes to manual right to work checks will be made due to the introduction of IDVT, including whether or not there will still be the option to carry out a manual check where right to work can be verified using IDVT. It would seem sensible to retain this capability, particularly if using IDVT will incur a charge.

In the first instance, we will need to see the detail of regulations due to come into effect from 6 April 2022, but the general trend at the Home Office is to move towards using digital processes wherever possible (see detailed information on this here). 

Need more information?

We will be monitoring further developments and will provide updates once further details are available. 

We are also running our next Immigration Law Academy on 29 and 30 March 2021, which includes a detailed analysis of the current and upcoming requirements for right to work checks. For further information and to register, click here.

If you have any specific queries around these changes or right to work requirements, please get in touch with a member of our  Immigration Team.

Related Item(s): Immigration, Right to Work

Author(s)/Speaker(s): Andrew Osborne, Supinder Singh Sian, Li Xiang, Tom McEvoy,

The Covid-19 pandemic continues to dominate the agenda, but employers can still expect both legislative and caselaw developments across all areas of employment law.

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This article looks at the key expected developments in England and Wales in the coming year and ends with a summary of what to expect in Northern Ireland. For expected developments in immigration law, see our separate article here.  

Covid-19 developments

As the pandemic continues, it is unclear if the government will bring in new restrictions but we certainly expect more employment law issues. A key question for 2022 is whether more employers will introduce mandatory vaccination, testing or NHS Covid pass policies. We also expect more court rulings about the furlough scheme and Covid-19 safety at work (see Employment Tribunal rulings on Covid 19 issues what can we learn). The first cases to reach the appellate courts will inevitably involve events that happened in the early days of the pandemic, but lawyers will be scrutinising decisions carefully to see what guidance can be extracted for today’s different circumstances. 

We could also start to see litigation against employers who’ve implemented “no jab no job” policies, although the ET system is currently so backlogged that these may not reach appellate courts in 2022. It’s interesting to look at the position in other countries where the system is faster – for example France already has a body of caselaw on mandatory vaccination –  Refusing COVID-19 vaccination: a first view from the French courts.  Might we also see some published rulings on when “long Covid” is a disability for equality law purposes? 

ESG, good work and flexibility

Last year saw environmental, social and governance (ESG) issues emerge as a key focus for organisations across multiple sectors (see here for support with this).  Employers looking to stay on top of the ESG agenda in 2022 will need to factor in several potential employment law changes. 

Flexible working

The delayed Employment Bill – originally promised in the 2019 Queen’s Speech – could be published in 2022 and is expected to include a new right to request flexible working from day one. The government’s consultation on this proposal closed in December 2021 so we can expect confirmation of the final plans in 2022, even if we do not see the Bill. The proposed legal reforms are modest, but they form the backdrop to discussions about “new normal” working arrangements as employers look to codify practices in the coming year.

Good work

The Employment Bill is also expected to progress the Good Work agenda, by introducing a new right for workers with variable hours to request a more stable and predictable contract after 26 weeks’ service and, possibly, new rights to reasonable notice of working hours and compensation for short-notice shift cancellation. The EU transparent and predictable working conditions directive will introduce similar rights on an EU-wide basis in August 2022.

Pay and holidays

There will be an extra public holiday in 2022 (Friday 3 June) to mark the Queen’s platinum jubilee, and the late May bank holiday has been moved to Thursday 2 June to make a four-day weekend. 

Holiday pay calculations are always a headache but seem to have been less of a concern in recent years. We expect judgment in two cases in 2022, however, which may put holiday pay calculations back in the spotlight:

• Harpur v Brazel – concerning holiday pay for a casual worker who was under contract all year round but worked in term time only. The judgment could potentially clarify various holiday pay rights including the practice of paying a holiday pay supplement of 12.07% for casual workers.
• Smith v Pimlico Plumbers – concerning the extent of an employer’s liability for holiday backpay in circumstances where the individual was treated as self-employed but was subsequently found to be a worker with entitlement to paid holidays.

The National Living Wage (for workers aged 23 and over) is set to rise to £9.50 an hour from April 2022, an increase of 6.6%. Adding to the ongoing pressure on wages, the social care levy will be introduced UK-wide from April 2022 and will be collected initially via a 1.25% increase in National Insurance Contributions. The Employment Bill may also introduce the long-awaited tips regulations governing how tips are to be distributed. There will, of course, be the usual uplifts to statutory rates and limits, including statutory sick pay and maternity pay, in April 2022.

Whistleblowing 

EU member states are almost all late in implementing the EU whistleblowing directive, so most will be doing so throughout 2022.  The directive does not apply to the UK but looks set to influence best practice here. Its key feature is the requirement to provide feedback to whistleblowers within certain specified timescales.

Modern Slavery Act

We expect reforms strengthening the Modern Slavery Act to implement the plans announced in September 2020. When these are introduced, which could be in the coming year, companies in scope of the current reporting requirements may need to pay even closer attention to their anti-slavery statements as a result. This comes at a time of growing interest in supply chain governance as part of the ESG agenda. 

Diversity and inclusion 

Diversity, equity and inclusion will no doubt remain high on the agenda, whether as part of ESG initiatives or separately. Diversity monitoring and positive action are key topics for many employers right now. Employers often try to stay ahead of the law in this area, and there could be significant developments in 2022.  

Harassment

The government has promised to introduce a new proactive duty on employers to prevent sexual harassment in the workplace and to bring back laws making employers responsible if employees are harassed by customers or other third parties. Provision could be made in the Employment Bill for these changes. The Equality and Human Rights Commission may start consulting on its new Code of Practice on Harassment, building on the major guidance it published shortly before the Covid-19 pandemic. The upshot could be a step change in how employers are required to manage the risks of harassment in a post #Metoo world, but much turns on the detail. Do contact us if you would like help with training your team on this important area.

Legislation has also been promised on non-disclosure agreements (NDAs) since 2019. We still expect reforms to materialise, potentially in the Employment Bill.  

Pay transparency

The detailed rules governing gender pay gap reporting are set to be reviewed in 2022. Changes could be on the cards but would probably be subject to consultation before being introduced. In the meantime, the deadlines for submitting reports are expected to return to normal this year, having been extended in 2021 because of the pandemic.

It is conceivable that we will see some progress towards the eventual introduction of ethnicity pay reporting. The March 2021 report by the Commission on Race and Ethnic Disparities did not support the introduction of compulsory ethnicity pay reporting, but calls for regulation are not going away; in fact they are arguably increasing. The first step – potentially in the coming year – is likely to be the publication of guidance for employers wanting to report on a voluntary basis.

At the end of 2021, the government launched a consultation on the potential introduction of disability reporting on a voluntary or even compulsory basis. The consultation is open until 25 March 2022, and the government currently says a response will be published by June. 

Gender identity

In last year’s landmark Forstater case, the Employment Appeal Tribunal (EAT) ruled that a belief that sex cannot be changed and a belief or lack of belief in gender identity are all protected by equality law.  Two similar cases involving “gender critical” beliefs may come before the EAT in 2022 (Higgs v Farmor’s school and Mackereth v DWP). These cases raise sensitive issues about how the law regulates the space between holding gender-critical beliefs (protected) and harassment of trans people (unlawful). We will be looking at these cases as part of our webinar on gender identity and inclusion on 31 March 2022 – look out for details coming soon.

Equal pay 

The equal pay claims brought by store workers at Asda, Tesco, Morrisons and other large retailers continue to progress through the courts. Rulings up to this point have confirmed that female store workers can compare themselves to male distribution depot workers. Subject to any further challenges on that issue, the courts will now focus on whether the relevant types of work are of equal value and, if so, whether paying different rates for them is justified.  We would not expect these cases to conclude in 2022 but we may see further rulings as they continue their journey.

Family rights

By August 2022, EU member states need to have implemented the EU work-life balance directive, which includes new baseline rights for carers and working parents. The UK does not need to implement this directive but has already promised to match the new rights for carers. Under the UK government’s proposals, working carers will be able to take up to 5 days’ carers leave each year to help them carry out their caring responsibilities, although this will be unpaid. The government published some detail on how this new right will operate in September 2021 and we expect the Employment Bill to pave the way for its introduction.

Unrelated to the EU directive, the UK government has promised a new right to 12 weeks’ paid neonatal leave for parents whose babies spend time in neonatal care units. The government has also promised to improve redundancy protection for pregnant employees and maternity returners by giving them priority for alternative employment opportunities if made redundant, with similar protections for parents returning from adoption or shared parental leave. All of these new rights are expected to be included in the Employment Bill.

Other developments

Out of the other developments expected in 2022, employers should watch out, in particular, for any progress in the following areas:

• Proposals for regulating non-compete clauses following the government’s 2020 consultation on this issue. Regulations implementing a ban on “exclusivity clauses” in contracts for low-paid workers may also be introduced, following a consultation on this issue last year.
• Single enforcement body. The primary intention is to defragment the current regime by combining the Employment Agency Standards Inspectorate, the Gangmasters and Labour Abuse Authority and HMRC’s National Minimum Wage Enforcement Team into one body. The idea is also to expand this new body’s remit into the enforcement of statutory sick pay, holiday pay for vulnerable workers and the regulation of umbrella companies, with other areas under consideration.  The Employment Bill will pave the way for its establishment, but it is likely to be some time before it is up and running. 

After a relatively quiet 2021 (Covid-19 aside), 2022 looks likely to bring an increased number of changes to employment law, especially if the Employment Bill is finally published.   Our regular webinar “what’s happening in employment law” on 11 May 2022 will provide an update on progress with these and other developments – look out for more details coming soon.

Northern Ireland 

Many of the developments covered above are relevant for Northern Irish employers including those relating to Covid-19, ESG, whistleblowing and diversity. In Northern Ireland we will certainly see more caselaw resulting from the pandemic such as the furlough scheme. We may also see developments in holiday pay when the courts begin deciding cases that were put on hold pending the outcome of the dispute in the landmark holiday pay claim in Chief Constable of the Police Service of NI v Agnew and others (which appears to have settled).

As we start 2022, apart from the usual updates to statutory rates and limits, the legislative landscape remains quiet in Northern Ireland. There are no significant proposals in place to amend existing laws and, in particular, no plans to introduce an Employment Bill. This is likely to remain the case at least until after the Assembly elections in May 2022. We may therefore see further divergence between the employment laws in England and Wales and those in Northern Ireland (see our article explaining the reasons for this divergence and outlining the key differences).  

During 2022 we could start to see developments in relation to the employment and equality aspects of the Protocol on Ireland/Northern Ireland, negotiated during Brexit – watch out for our article on this topic soon.  

Related Item(s): Employment

Author(s)/Speaker(s): Gemma Taylor,

The coming year includes some welcome pro-immigration reforms which should give businesses and individuals more options and a better user experience than currently.

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As a general direction of travel, the Home Office continuing its post-Brexit programme of policy and operational change, including elements of liberalisation, simplification and technological improvement. There are also some deadlines to be aware of. In this article we explore some of the main themes we expect to see across the year and where to go for more information or assistance. To find out about the employment law trends of 2022, read our article here.

New immigration routes

Three new immigration routes of interest to employers are due to launch in Spring 2022.

Global Business Mobility route

The Global Business Mobility Route will incorporate and reform the Intra-Company routes, the Representative of an Overseas Business route, visitor rules for secondees from overseas clients of UK export companies and the provisions for contractual service suppliers and independent contractors under international agreements.

This route will give global businesses more options for sending personnel to the UK. One big change is that intra-company transferees may once again be eligible to settle in the UK, giving employers more flexibility to transfer a group employee quickly without the need to meet an English language requirement, even where this is with a view to settlement.

Overseas businesses will also likely be able to send a team of up to five personnel to set up a branch or subsidiary in the UK, rather than just one.

The provisions for seconding personnel from overseas clients of UK export companies are likely to be more restrictive than the current visitor provisions, but will allow secondees to be joined by their dependants.

It is not clear yet what changes there may be for contractual service suppliers and independent contractors, but these are likely to be relatively small as this element has not been subject to a full review, and is broadly aligned to the requirements of the UK’s international commitments.

When using the new route, employers should be aware that it is likely to be subject, at least initially, to a high level of Home Office scrutiny and monitoring. This is in part due to previous concerns over potential abuse of skill level, reported salaries and allowances for Intra-Company Transferees. Also, the proposed team subsidiary element of the route is likely to be launched as a trial and will need to be evaluated.

Scale-up route

This will be an unsponsored route intended to enable highly-skilled and academically elite individuals to move to the UK to work at a recognised UK scale-up business. The route will lead to settlement.

Eligibility criteria for the route are anticipated to include the following:

• A job offer from an approved ‘scale-up’ business which has demonstrated to the Home Office an annual average revenue growth or employment growth of at least 20 per cent over a three year period, and a minimum of 10 employees at the beginning of that period;

• A UK salary of at least £33,000; and

• Meeting an English-language proficiency requirement.

Although this route will likely benefit a relatively small number of businesses and individuals, it will provide some SMEs with streamlined access to skilled workers to assist with the hypergrowth phase of their development.

New High Potential Individual route

This route is also expected to be unsponsored and to lead to settlement. Eligible applicants will not need to have a job offer to qualify, so employers will be able to engage holders of this visa without having to participate in the process of securing it.

The criteria for the route have not yet been made publicly available, however it will be geared towards certain internationally mobile individuals with high potential to contribute to the UK. Eligibility may be linked to having graduated from a ‘top global university’ but may also incorporate other, and possibly tradeable, points-based factors. It is very likely that an English-language proficiency requirement will be included.

Need more detailed information or assistance?

See our article analysing the recommendations of the Migration Advisory Committee for the Global Business Mobility route.

We have also produced an overview of how the International Agreement route can be used to sponsor contractual service suppliers.

All of the new routes will be covered in our Immigration Law Academy on 29 and 30 March 2022. You can sign up for this here or get in touch with a member of our Immigration Team for specific queries.

Sponsorship

Being on top of immigration sponsor requirements, compliance and system changes will be critical for UK businesses in 2022.

Many more employers now need a licence to sponsor EEA national workers following the end of free movement, and more generally to fill skills gaps presented by the worker shortages being experienced across most industry sectors. These employers may need assistance to assess and advise on their readiness to become a sponsor, and to check their compliance with sponsorship obligations once a sponsor licence is in place.

Longstanding sponsors are also needing to rely more heavily on their licences. They may therefore benefit from refresher training or mock audits to limit the risk their licence may be suspended or revoked.

New and established sponsors will also be grappling with the compliance aspects of remote working that have emerged due to the pandemic.

Separately, there is a high level of corporate mergers, acquisitions and other restructuring activity at present. Restructuring may have implications for sponsor licences, including the need to make reports to the Home Office and in some cases a requirement to apply for a new sponsor licence.

The Home Office has confirmed its ‘sponsorship roadmap’ that sponsor compliance visits will remain a priority as it reforms the sponsorship system over the next few years. Onsite visits have resumed after being discontinued during the early phases of the pandemic, and we can expect to see greater activity in this area following additional compliance officer recruitment.

Lastly, a rolling programme of IT transformation changes is also planned in the sponsorship sphere up to at least the first quarter of 2024. A new service, ‘Sponsor a Visa’ will launch in mid-2022 and will allow visa applicants to access a partly-populated online application form once the details of their role have been approved. Employers will need to be aware of this change and will likely need to adjust their internal processes accordingly.

Need more detailed information or assistance?

Take a look at our article for further information on the Home Office’s sponsorship roadmap. This is part of the Home Office’s broader digitalisation agenda, which you can read about here.

Our Immigration Team has a wealth of experience in advising on and assisting with sponsor licence applications and ensuring compliance. We can help you with any queries if you are new to the process, or if you need advice on remote working or other compliance issues.

As part of our Immigration Solutions for HR, our Immigration Team can also offer training, compliance guides and mock audits of your systems to identify any areas of risk, suggest improvements and prepare you for a real Home Office audit.

COVID-19

With the pandemic continuing for the foreseeable future, the Home Office will need to adjust its immigration policies in response to prevailing conditions affecting international travel and processing of immigration applications.

Although the Home Office has wound back immigration-related concessions and returned to business as usual as much as possible during 2021, the likely emergence of coronavirus variants during 2022

Need more detailed information or assistance?

We are continuing to monitor how the pandemic impacts UK immigration and will provide updates here.

Our Immigration Team is also able to assess rapidly changing pandemic-related travel requirements and restrictions both for the UK and other countries, and to provide timely advice on the implications and options for internationally mobile people.

Global mobility

The COVID-19 pandemic has undoubtedly encouraged businesses to look closely at possibilities to work and do business meetings remotely. However, ongoing international skills shortages combined with tax, social security, employment law and regulatory requirements mean that being able to recruit and mobilise international talent will remain key for businesses worldwide in 2022.

To ensure compliance with immigration laws in EEA countries, UK employers also need to keep pace with the evolution of how these countries are regulating the entry and stay of British nationals post-Brexit.

Need more detailed information or assistance?

Our international presence allows us to offer a 24-hour service to clients, with support being available through our Hong Kong office and our membership of the Ius Laboris alliance (the leading alliance of global human resources lawyers). With language expertise including Mandarin, Cantonese, Japanese, French, Azerbaijani and Russian, our team regularly helps companies transfer personnel for work or business worldwide.

Our article canvasses some of the issues associated with remote working abroad.

See the Ius Laboris Brexit Guide for International Employers, which covers business travel, frontier worker rights, employment permission and residence across 25 jurisdictions. To keep up-to-date on global mobility developments, you can subscribe to Ius Laboris’s Immigration & Mobility insights here.

We have also produced a factsheet on Schengen visas.

EU Settlement Scheme

Although the main EU Settlement Scheme application deadline was 30 June 2021, in 2022 applications will still need to be made for joining members, and to convert pre-settled status to settled status.

Making a late application for inclusion in the scheme may also be needed where it is identified that an eligible person has failed to apply on time. This may arise during a right to work check, or where a business is in the process of considering immigration routes for a new hire to enter the UK.

Need more detailed information or assistance?

See our article highlighting some of the action points and considerations associated with using the EU Settlement Scheme.

Our Immigration Team can help with both straightforward and complex EU Settlement Scheme applications. We can also assist with British citizenship applications for those who have been granted settled status.

Right to work

The Home Office’s temporary adjusted right to work check process that was introduced to address the logistical issues created by the COVID-19 pandemic is scheduled to end on 6 April 2022. Online checks for those with biometric residence cards, biometric residence permits and frontier worker permits will become mandatory from the same date. Employers will need to think about appropriate changes to internal processes to be able to manage right to work checks in a compliant manner.

In addition, employers must continue to be mindful of the appropriate steps to take on discovering that a prospective or existing employee failed to apply for status under the EU Settlement Scheme on time, despite being entitled to do so.

Need more detailed information or assistance?

An overview of what is due to change on right to work checks from 6 April 2022 is covered in our article here. We have also produced an article on the process to follow in respect of the right to work for individuals who have made a late EU Settlement Scheme application or who need to do so.

Our Immigration Solutions for HR provide a full overview of the requirements for right to work compliance. We offer training and e-learning courses on right to work checks to help upskill your team and a handbook which can be used as a learning tool.

We can also help to update your internal policies and recruitment documents to ensure they are in line with the new right to work check requirements from 6 April 2022.

Amendments to family, private life and settlement routes

The Independent Chief Inspector for Borders and Immigration is undertaking an inspection into the processing of family visas, which is due to be delivered in 2022. The Home Office has also confirmed that simplification of the family, private life and settlement routes is planned, which will likely be timed to take the inspection findings into account. Although no clear date has been identified for the amended Rules to come into effect, engagement with stakeholders suggests it is likely to be in Autumn 2022.

Simplification and reform of these routes may be beneficial for employers as it may provide a more streamlined, flexible and cost-effective option than employer sponsorship for some individuals. It may in some cases be an alternative option where a prospective employee is not eligible for sponsorship.

Need more detailed information or assistance?

See our commentary on the Home Office’s strategy statement on legal migration and border control, including the planned reforms to the family, private life and settlement routes.

We will be monitoring developments in this area throughout 2022 and will publish further information once it becomes available. In the meantime, our Immigration Team can be contacted directly for any queries or to assist with applications under these routes.

Visitor visa reform

It is possible that the Home Office will review visitor visa arrangements during 2022, in line with a recommendation from the Migration Advisory Committee to consider accommodating time-limited essential work travel to the UK within these.

Need more detailed information or assistance?

See the discussion of how the visitor Rules may be revised to accommodate short-term assignments in our article here.

Our Immigration Team can assess whether planned activities fall within those allowed for visitors, or whether work permission is required. We can also assist with making visa applications as appropriate.

 

Related Item(s): Immigration & Global Mobility

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

The Home Office has announced that from 6 April 2022, the right to work of those who hold a biometric residence card (BRC), biometric residence permit (BRP) or frontier worker permit (FWP) can only be done online.

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Notification of the change was made on 17 December 2021 in a new Appendix E to the Employer right to work checks supporting guidance (otherwise known as An Employer’s guide to right to work checks), and via direct email to stakeholders.

A corresponding change is also being made in relation to right to rent checks.

What will employers need to do from 6 April 2022?

From this date, employers must carry out a check for individuals holding a BRC, BRP or FWP using the Home Office’s online right to work check service. It will no longer be an option to complete a manual right to work check using a physical BRC, BRP or FWP.

The employer must have the individual’s date of birth and a valid right to work share code that the individual has generated by accessing the online system for individuals. The share code is valid for 30 days.

It will not be necessary for employers to carry out a retrospective check for employees where a manual check was completed on or before 5 April 2022.

As always, employers must be careful to ensure they carry out the initial right to work check before the date the employment is due to commence, and the follow-up right to work check in line with the timings set out in the Employer right to work checks supporting guidance.

Why has the Home Office announced this change?

The announcement has been made now to give employers early notice that they will need to change their right to work check processes.

Before 6 April 2022, there are good reasons why employers may consider inviting, but not requiring, a BRC, BRP or FWP holder to allow the employer to carry out an online check rather than a manual one.

Checking BRCs

Currently, a BRC can only be accepted for a manual right to work check where the employer is satisfied the holder has status under the EU Settlement Scheme. The simplest way to verify this is to carry out an online right to work check.

Checking BRPs

BRPs are issued to expire on 31 December 2024, even where an individual’s immigration permission is due to expire after this date. This is because the current encryption technology used in BRPs may need to be upgraded beyond this date. Carrying out an online right to work check avoids the necessity to schedule a follow-up check before the expiry date on the BRP where the person has limited immigration permission. A follow-up check is not required where an individual’s BRP states they have indefinite leave or settled status.

The Home Office was due to make an announcement during 2024 regarding what employers will need to do to verify right to work rights at the follow-up check, but it seems likely this will simply be to do an online check. In any event, employers may prefer to carry out online right to work checks for BRP holders wherever possible to minimise the number of follow-up checks they may need to do at the end of 2024.

Checking FWPs

In the vast majority of cases, FWPs are issued electronically, so the option to complete a manual check on a physical permit will be rare.

What other announcements are expected?

COVID-19 temporary adjusted right to work checks are due to end from 6 April 2022. We are anticipating that the Home Office will make an announcement before this date regarding whether these will need to be extended further. This will likely depend on the readiness of a tool they are developing to enable employers to check the right to work of more people online, including British and Irish citizens.

Regulations will need to be laid before 6 April 2022 to implement the removal of BRCs, BRPs and FWPs as acceptable right to work documents. The regulations may also include changes to manual checks brought about by the availability of the new tool if this is ready to be rolled out by then.

If you have any queries about any of the issues raised, please get in touch with a member of our Immigration Team.

 

Related Item(s): Immigration & Global Mobility

Author(s)/Speaker(s): Supinder Singh Sian, Andrew Osborne, Li Xiang, Tom McEvoy,

In this article, we look at some examples of the UK’s immigration and nationality digitalisation programme, focusing on the implications for migrant workers, their sponsors, and business visitors.

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The Home Office’s immigration and nationality services – digital by design

The Home Office’s Digital, Data and Technology (DDaT) team is responsible for improving the overall business efficiency of the department through the development of digital technologies. It was set up in 2016 and is responsible currently has 3,800 staff associated with it across the UK.

Under the current DDaT strategy, the Home Office aims to ‘become digital by design’ in everything it does to deliver its policies. This includes using automation, investing in cyber capabilities and focusing on data to manage the department both strategically and operationally.

Digitalisation has been actively pursued the immigration and nationality sphere in recent years, ahead of other areas of the department. This is set to continue across the Home Office according to the following principles:

1. Converging technologies where possible

2. Creating shared technology products

3. Being product-centric over programme-centric

4. Becoming data-driven to improve the Home Office’s decisions

5. Delivering effectively at scale

6. Embracing innovation

These principles can be seen in action in the Home Office’s recent and planned innovations for how migrants make applications and have them assessed, and how they prove their status once granted.

Making and assessing applications

The digitalisation of immigration and nationality application processes is creating significant change in terms of data access, security and privacy. As a general trend, it should improve user experience. It will also provide the Home Office with a huge pool of data to store and analyse.

Applying to enter the UK

Currently visitors to the UK (including business visitors) must make a formal visa application abroad if they are a visa national, or seek entry at the border if they are a non-visa national. Certain non-visa nationals are eligible to use eGates and are not routinely formally examined by a Border Force official.

The Home Office plans to implement Electronic Travel Authorisations (ETAs) for all non-visa nationals visiting or transiting the UK as an additional pre-arrival security measure, as well as replacing physical visitor visas with a digital status record, or ‘e-visa’. Visa nationals who are currently eligible to obtain an Electronic Visa Waiver (EVW) will continue to be able to use an EVW. British and Irish nationals, as well as those who have British citizenship in the Crown Dependencies or British Overseas Territories will remain outside the scope of pre-arrival arrangements.

To make these changes effective, substantial systems development work still needs to be undertaken. This will need to cover the ETA application process, as well as replacing or upgrading two old systems that flag individuals of interest for security reasons and that analyse passenger information from a security perspective. Some of this work falls under the Digital Services at the Border programme, which is due to be delivered by the end of March 2022. Communications and training will also be necessary for air, maritime and rail carriers, as they will need to administer pre-departure checks. The new arrangements will be trialled ahead of a full rollout, with initial testing scheduled to take place by autumn 2021.

Anticipated implications of these changes include:

• More security and less likelihood of delays or refusal of entry for visitors at the border (although there will still be checks on visitors’ intentions);

• Additional administration and small fee charges for those who need to use the ETA system; and

• The need for assurances on security of data and privacy, with the UK government collecting and retaining data for a much larger cohort of people than currently.

Online immigration and nationality application forms and sponsorship system

Online application forms have been a feature of UK immigration and nationality applications for some years now, however the post-Brexit immigration system is intended to become fully digital. This will include a roadmap to transform the Home Office IT systems used by sponsors of workers and students.

The Home Office is in the process of decommissioning legacy case working and other systems and is working on a shared form-building and hosting solution that it may produce within the department rather than through using an external provider. This latter change should enable the Home Office to design, prototype and deploy forms that meet their Accessibility Standard more quickly and cost-effectively than currently. Taking this work in-house would also allow small, iterative improvements to be made quickly to address identified issues.

Possible implications of having a fully digital application form set and IT system for sponsors include:

• Pressure to minimise the number of Statements of Changes in Immigration Rules brought forward each year, as this will in turn minimise the cost of rework to online application forms and associated guidance;

• The need to develop worldwide functionality, including mobile device-enabled functionality, to allow applicants to upload supporting information and documents securely and transparently (including eliminating the need to send supplementary documents by unsecured email);

• Further movement towards verifying information relied on by applicants and sponsors using self-certification, direct verification with third parties (eg employers), and checking data from previous applications, data shared between government departments and data exchanged across governments;

• Permanent movement away from submitting paper supporting documents (eg for sponsor licence applications);

• The availability of a quicker, more environmentally-friendly system through avoiding the use of paper, and removing the need to submit applications by physically travelling or using couriers or postal services;

• Greater capability for adopting decision-making tools and automating case working functions, subject to this meeting the Algorithmic Transparency Standard the Government is currently developing, and including careful consideration of factors such as avoiding potential unconscious bias and race discrimination in the design of these;

• Better access for applicants to their data, through subject access requests that are generated through drawing on integrated case working systems and are not reliant on the retrieval of paper-based archived files;

• The need to properly engage with and address issues such as digital poverty, lack of digital skills and language barriers through measures such as appropriate and easily-accessible assisted digital support worldwide (this is currently only available on a limited basis in the UK).

Identity verification

In late 2018, an identity verification app was used for the first time as part of the rollout of the EU Settlement Scheme (EUSS). This enabled millions of EEA nationals and some of their non-EEA family members to enrol their biometric data using a smartphone rather than attending a government-authorised facility.

The availability of this technology assisted with re-starting in-country immigration application processing for routes other than EUSS, after biometric enrolment centres were forced to close due to the COVID-19 pandemic.

A separate identity verification app was made available to support the implementation of the post-Brexit Points-Based Immigration system. It is currently available for use by a limited range of nationals and only in certain immigration routes, but the Home Office’s intention is to widen its use over time. Before 30 November 2021, individuals using the app could not access priority processing options, however this is now possible.

The Home Office is also considering how biometric data are enrolled and retained. The Identity section of the New plan for immigration: legal migration and border control strategy statement includes a proposal to require fingerprints to be captured once and then reused, with facial biometrics being recaptured periodically using an identity verification app. This potentially could mean applicants do not have to enrol their biometric data more than once, however longer data retention times raise potential data privacy concerns. Some of the concerns over data handling may be mitigated in the future through the Home Office using its own identity verification apps and controlling the data from the outset, rather than using third party commercial partners in visa application centres to collect and transfer it.

The net result of changes to identity verification is likely to be quicker application processing and movement through the border for migrant workers and business visitors. Other implications and outstanding issues to address include:

• The need to consider how automated allocation of National Insurance numbers can be integrated into the process for work routes where an identity verification app is used;

• Reduced need to use visa application centres and in-country biometric enrolment facilities;

• Potential to link biometric records to processes required for immigration applications such as English language testing, verification of qualifications, health testing such as TB screening etc, which would reduce potential for impersonation and document fraud;

• Increased need to ensure adequate governance around the collection, reuse and retention of biometric data (this may be addressed under planned reforms to the UK’s data protection regime); and

• Less risk of misidentification of an individual when the Home Office is carrying out enforcement activities.

Proving status

The general direction of travel in this area is toward the exclusive use of digital status, with plans to make this a reality by the end of 2024.

The technology used for people to be able to verify their status under the EUSS (the View and Prove service) is now being expanded to other routes. Although the EUSS system has been hailed as a success, initial case inception and finalisation may have been prioritised, with other aspects of the system yet to have been properly developed. Current problems include the possibility of one individual having multiple live immigration records, and their current immigration status not being verifiable by default on the online right to work checking system when they have an extension or settlement application in process. This can be corrected, but only by the individual making a request to the Home Office.

The replacement of physical immigration documents with digital status has many benefits, including eliminating the logistical and security issues that currently are associated with entry clearance vignettes and biometric identity documents.

Also, the planned automated capability to update an individual’s digital status record every time they cross the UK the border will enable the Home Office to accurately pinpoint if they are inside or outside the UK and for how long (see para 66 of the Home Office’s strategy statement). This could streamline the assessment of residence for settlement and nationality purposes, as well as enabling the sharing of residence information with other government departments when they are considering eligibility for services and benefits. Digital status could also facilitate contactless border crossing.

Some broader implications and issues relating to the adoption of digital status include:

• The need to have a communications and education strategy to ensure UK digital immigration status is easy to access and is accepted in all cases where proof of status is required (e.g. at present, some individuals are not confident with using online systems, and foreign governments will not accept UK digital status as sufficient proof when considering visa applications for their country);

• The need to build in safeguards to ensure migrant records are not duplicated and individuals can easily access their immigration history and current immigration status in one place;

• The need for reminder or other mechanisms to prompt migrants to update their digital status record when their circumstances have changed (e.g. when they obtain a new identity document);

• The need for a clear and quick process for migrants to have data inaccuracies addressed (e.g. where their digital status record does not accurately record an individual’s work rights);

• The need to ensure stability of the availability of information on digital status to minimise the risk that system crashes, data loss or corruption could result in real-world impacts on individuals’ access to their rights and services; and

• The need for robust processes to re-establish immigration status where digital status data is lost, corrupted or requires updating.

The future of digitalisation in the immigration and nationality sphere

Digitalisation of the immigration and nationality system is not without controversy and significant work still needs to be done to ensure it operates smoothly, as the examples highlighted above demonstrate.

We can expect to see further evolution as the Home Office pursues successive iterations of the DDaT strategy, with a view to providing better services to both to direct and indirect users of the system.

No doubt new challenges and solutions will emerge as digitalised processes and products become more embedded as the norm. The Home Office is clear that it is now a ‘digital organisation’, so an exploration of, and reliance on, digital technology appears to be high priority for the foreseeable future.

Related Item(s): Immigration & Global Mobility

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

South Africa, Botswana, Eswatini, Lesotho, Namibia and Zimbabwe have been added to the COVID-19 travel red list for England from midday GMT on Friday 26 November 2021.

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The government has also made arrangements to ban direct flights for a short period of time and to reimplement hotel quarantine beyond this. The situation requires monitoring as further countries could be added in the near future.

What arrangements have been put in place?

Direct flights from the six countries to England have been banned between midday GMT on Friday 26 November 2021 and 4 am GMT on Sunday 28 November 2021.

From midday on Friday 26 November 2021, individuals who are not British citizens, Irish citizens or UK residents will not be allowed to enter England unless they have only transited the relevant countries airside in order to catch a connecting flight.

Between midday GMT on Friday 26 November 2021 and 4 am GMT on Sunday 28 November 2021, British citizens, Irish citizens and UK residents who have been in any of these countries within the last 10 days must follow additional guidance when completing their passenger locator form, quarantine at home for 10 days and take NHS PCR tests on day 2 and day 8 of their arrival.

British nationals, Irish nationals and UK residents who have been in any of the countries within the last 10 days and plan to arrive after 4 am GMT on Sunday 28 November must undertake pre-departure COVID-19 testing, complete a passenger locator form and book a quarantine hotel package including day 2 and day 8 COVID-19 PCR tests in advance of their arrival.

The relevant guidance on processing of visitor applications from these countries has not yet been updated, but it is anticipated visitor visa processing will be suspended.

Why have these measures been introduced?

A new SARS-CoV-2 variant B.1.1.529 (also known as the Nu variant) has been designated as a variant under investigation by the UK Health Security Agency. The variant has a large number of spike protein mutations and other mutations in comparison to the original strain that causes COVID-19 illness. Investigation needs to be undertaken to determine whether existing vaccines and treatments are less effective against the variant, as well as whether it is more transmissible.

Further guidance will be issued once investigations have progressed and any mitigations have been recommended. In the meantime, it is possible that further countries will be added to the red list as the variant spreads.

If you have queries about this development, please contact a member of the Immigration Team.

 

Related Item(s): Covid 19 – Coronavirus, Immigration & Global Mobility, Immigration

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

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,