Statement of Changes in Immigration Rules HC 813 was laid on 22 October 2020 and is the key document outlining the features of the Government’s Points-Based Immigration System, as well as simplifying the language and structure of some areas of the Rules. The new system will apply to EEA and Swiss nationals, aside from Irish nationals (EEA nationals). This insight focuses on some of the changes that are likely to be of most interest to employers.

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HC 813 contains 514 pages of detail, however only some of it is aimed at creating new criteria for entry and stay in the UK.

It will be possible to make applications under the new Rules from 9 am on 1 December 2020 in most cases, so we anticipate that guidance on how to do this will be published in the very near future.

EEA nationals will not be able to apply in-country under the Rules until 11 pm on 31 December 2020, unless they are applying under the EU Settlement Scheme as an S2 healthcare visitor or a service provider from Switzerland. Those who apply for entry clearance (other than under the same categories) will have this granted from 1 January 2021 at the earliest.

General changes

These include:

• In-country switching will be allowed from most immigration categories other than visitor, short-term student, parent of a child student, seasonal worker, domestic worker or a person with leave outside the Immigration Rules – a notable exception being that it will not be possible to switch into the UK ancestry route

• Expanded application validity requirements, which we comment on in this article

• Re-named and restructured appendices for cross-cutting topics including the Academic Technology Approval Scheme requirement, English language requirements for limited stay, the Knowledge of Language and Life requirement for settlement, meeting financial requirements for limited stay and the continuous residence requirement for settlement in work and business categories

Skilled Worker route

This category will replace Tier 2 (General) and is for individuals coming to the UK to work in a skilled job with a licenced sponsor.

We have previously analysed the main features of the Skilled Worker route here, however the statement also confirms that no cooling off periods will apply to the route, and there will be no six-year total length of stay.

Controversially, no changes have been made to the shortage occupations that will be accepted initially under the Skilled Worker route, other than the removal of quantity surveyors, which was previously included in error. This means that skilled chefs will still be recognised as a shortage occupation initially despite the Migration Advisory Committee (MAC) recommending their removal, but that all of the other occupations recommended for inclusion will not be reflected at the time the route launches. We have commented on the MAC’s recommendations here.

The reason given by the Home Office for taking this approach is that it wishes to assess how the labour market develops following the pandemic, and in response to the new system being introduced. It seems more likely however that there has simply been insufficient time to properly consider and implement the recommendations in the MAC’s report. It is foreseeable that there will be calls for the shortage occupation list to be revised swiftly to limit the negative impact that delay may have on resourcing, particularly in the health and social care sector.

Intra-Company Transfer routes

The main intra-company transfer provisions for established workers being transferred from their employer abroad to work at a related business in the UK, as well as for graduate trainees are both preserved.

Substantive changes include:

• Amendment to the 12-month cooling off requirement so that it will only apply to those who have already held leave under the route for five years in any six-year rolling period, or nine years in any ten-year rolling period for high earners with a high earner salary of at least £73,900

• There will only be one high earner salary of £73,900 for this route, which will enable the individual to access the cooling off provision mentioned above, and also will exempt them from having to be employed abroad for at least 12 months before their application to transfer to the UK

• Relaxed switching requirements, except that it will still be necessary for an applicant to have the relevant 12 months experience abroad (or three months for graduate trainees) unless the applicant is a high earner

The Intra-Company Transfer routes will be subject to a review by the MAC in 2021, with the MAC’s report due by the end of October 2021. Further reform of these routes is therefore expected at the end of 2021 or early 2022. Our commentary on the review is here.

Visitors

The Rules for visitors will be simplified. The changes to the route are modest, and it remains to be seen if the route will be further reformed in the medium-term to better facilitate business travel following the end of the transition period.

Changes include:

• Allowing Standard visitors to study at an accredited institution for up to six months

• Making a correction to state that drivers on international routes may collect as well as deliver goods and passengers

• Removing the requirement for volunteering to be ‘incidental’ to the main purpose of the visit

• Allowing academic visitors who are experts in their field to extend their stay in the UK to a total of 12 months

New extension route for Turkish workers and businesspersons

This route will become available from 11 pm on 31 December 2020 under a new Appendix ECAA Extension of Stay. The aim of this appendix is to enable Turkish workers, businesspersons and their existing family members to proceed to settlement on the broadly the same criteria as currently, with the exception that domestic criminality thresholds will apply for considering conduct taking place after the end of the transition period.

New immigration route for British Nationals (Overseas) and their family members

The new route will launch from 31 January 2021. New fee regulations also laid on 22 October 2020 confirm that the application fee for each main applicant and dependant will be £180 for a 30-month visa and £250 for a five-year visa.

Unchanged categories

Categories that have been simplified but are not intended to contain changes to immigration policy include:

• Tier 2 Minister of Religion

• Tier 2 Sportsperson

• UK ancestry

• The Tier 5 Temporary Worker routes for seasonal workers, youth mobility, religious workers, charity workers, creative and sporting workers, and those coming to work in the UK under international agreements or government authorised exchange schemes

• Start-up

• Innovator

Expedited sponsor licence processing

In a separate announcement, the Home Office has confirmed it will be introducing a new £500 fee from 12 November 2020 for the priority processing of sponsor licence applications.

We will continue to provide updates on the roll-out of the new system as further details become available. There are still places available on our Immigration Law Academy on 23 and 24 November, and we are also able to offer tailored advice and training on the new system through our Immigration Solutions for HR. Please contact a member of our Immigration Team for further information.

 

Related Item(s): Immigration & Global Mobility, BREXIT, Immigration

Author(s)/Speaker(s): Andrew Osborne, Naomi Hanrahan-Soar, Joanna Hunt, Stephen OFlaherty,

On 1 October 2020 the Migration Advisory Committee (MAC) accepted a commission from the Home Secretary to review Intra-Company Transfer (ICT) visa arrangements. It has also been asked to consider what provision could be made to allow overseas businesses to send a team rather than one individual to establish a UK branch or subsidiary, or to carry out a secondment to work on a high-value goods or services contract. The report is due by the end of October 2021, with a revised route likely becoming available in 2022.

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The commission provides further confirmation from the Home Office that initially, the provisions for ICT workers should be broadly unchanged under the new immigration system when it launches from 1 January 2021. This is likely to be due to a lack of time and resource at the Home Office and MAC to be able to reform and launch both routes simultaneously rather than a view that the current structure of the ICT route remains fit for purpose.

What factors should employers take into consideration when thinking about using the ICT route in 2021?

Initially, although the new ICT route will continue to allow businesses with international operations to temporarily transfer existing senior or specialist employees to a group business in the UK, it will become less attractive than the new Skilled Worker visa for the following reasons:

• One of the current main advantages of the ICT route, ie no requirement to conduct resident labour market testing, will fall away as this will not be a feature of Skilled Worker applications

• Applicants under the ICT route will still need to be filling jobs at bachelor degree equivalent level or higher, rather than at A-level equivalent or higher for the Skilled Worker route

• The general minimum salary threshold of £41,500 for skilled workers under the ICT route will be higher than for the Skilled Worker route (which will be between £20,480 and £25,600)

• The general minimum salary threshold of £23,000 for graduate trainees under the ICT route will in some cases be higher than for the Skilled Worker route

• Applicants under both ICT and Skilled Worker will also need to meet the going rate for their occupation if this is higher than the general minimum salary threshold, however under Skilled Worker the going rate can be discounted for shortage occupations, holding relevant PhD qualifications, certain health or education occupations and new entrants to the labour market, whereas under ICT it cannot

• The ICT route does not lead to settlement, whereas Skilled Worker does

• The Home Office has indicated in recent stakeholder presentations that there will be no cooling off period for the Skilled Worker route, whereas this is expected to be retained for the ICT route

The ICT route may be the preferred or only option in following situations:

• Where the applicant cannot meet the English language requirement for Skilled Worker

• Where the applicant’s remuneration will include guaranteed allowances such that their overall remuneration package will meet the salary requirements for ICT, but their basic salary without allowances will not meet the salary requirements for Skilled Worker

• For some graduate trainees whose salary will not meet the requirements for Skilled Worker, up to a maximum of 20 per sponsor per financial year

What is the scope of the MAC’s commission regarding ICTs?

The Home Secretary has asked the MAC to consider each of the following points:

• The salary threshold for entry to the ICT route

• What elements, if any, beyond base salary should count towards meeting the salary requirements

• Whether different arrangements should apply to the very highly paid

• What the skills threshold for the route should be

• The conditions of the route, in particular those where it differs from the Skilled Worker route

As part of its consideration, the MAC has been asked to ensure that the commitments made to the Mode 4 provisions of free trade agreements concerning ICTs are fully implemented under the Immigration Rules.

What has the MAC been asked to consider beyond ICTs?

The Home Secretary has confirmed an intention to expand the provisions for overseas businesses to allow them to transfer a team of workers to the UK to establish a UK branch or subsidiary (currently they can only transfer one senior executive), and to send teams to the UK to work on a high value goods or services contract. The MAC has been asked to make recommendations on the eligibility criteria for the workers and for the sending organisation.

What will the MAC’s approach be for working on this commission?

In accepting the commission, Chair of the MAC, Brian Bell, notes that as the ICT category is used by a limited number of companies, the MAC’s approach to engaging with stakeholders may be in a slightly different format than usual. There will still be a Call for Evidence (CfE) and a series of engagement events with key stakeholders, due to start in early 2021. Employers with offices in the EEA who have not previously needed to use the UK immigration system may wish to ensure they respond to the CfE or contact the MAC directly to ask to be included in stakeholder engagement events.

We will be providing an overview of the key elements of the new immigration system at our Immigration Law Academy on 23 and 24 November. If you have any specific queries about the new system or the MAC ICT commission, please get in touch with a member of the immigration team.

Related Item(s): Immigration & Global Mobility

Author(s)/Speaker(s): Andrew Osborne, Tyler Jones,

On 1 October 2020 the Migration Advisory Committee (MAC) accepted a commission from the Home Secretary to review Intra-Company Transfer (ICT) visa arrangements. It has also been asked to consider what provision could be made to allow overseas businesses to send a team rather than one individual to establish a UK branch or subsidiary, or to carry out a secondment to work on a high-value goods or services contract. The report is due by the end of October 2021, with a revised route likely becoming available in 2022.

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The commission provides further confirmation from the Home Office that initially, the provisions for ICT workers should be broadly unchanged under the new immigration system when it launches from 1 January 2021. This is likely to be due to a lack of time and resource at the Home Office and MAC to be able to reform and launch both routes simultaneously rather than a view that the current structure of the ICT route remains fit for purpose.

What factors should employers take into consideration when thinking about using the ICT route in 2021?

Initially, although the new ICT route will continue to allow businesses with international operations to temporarily transfer existing senior or specialist employees to a group business in the UK, it will become less attractive than the new Skilled Worker visa for the following reasons:

• One of the current main advantages of the ICT route, ie no requirement to conduct resident labour market testing, will fall away as this will not be a feature of Skilled Worker applications

• Applicants under the ICT route will still need to be filling jobs at bachelor degree equivalent level or higher, rather than at A-level equivalent or higher for the Skilled Worker route

• The general minimum salary threshold of £41,500 for skilled workers under the ICT route will be higher than for the Skilled Worker route (which will be between £20,480 and £25,600)

• The general minimum salary threshold of £23,000 for graduate trainees under the ICT route will in some cases be higher than for the Skilled Worker route

• Applicants under both ICT and Skilled Worker will also need to meet the going rate for their occupation if this is higher than the general minimum salary threshold, however under Skilled Worker the going rate can be discounted for shortage occupations, holding relevant PhD qualifications, certain health or education occupations and new entrants to the labour market, whereas under ICT it cannot

• The ICT route does not lead to settlement, whereas Skilled Worker does

• The Home Office has indicated in recent stakeholder presentations that there will be no cooling off period for the Skilled Worker route, whereas this is expected to be retained for the ICT route

The ICT route may be the preferred or only option in following situations:

• Where the applicant cannot meet the English language requirement for Skilled Worker

• Where the applicant’s remuneration will include guaranteed allowances such that their overall remuneration package will meet the salary requirements for ICT, but their basic salary without allowances will not meet the salary requirements for Skilled Worker

• For some graduate trainees whose salary will not meet the requirements for Skilled Worker, up to a maximum of 20 per sponsor per financial year

What is the scope of the MAC’s commission regarding ICTs?

The Home Secretary has asked the MAC to consider each of the following points:

• The salary threshold for entry to the ICT route

• What elements, if any, beyond base salary should count towards meeting the salary requirements

• Whether different arrangements should apply to the very highly paid

• What the skills threshold for the route should be

• The conditions of the route, in particular those where it differs from the Skilled Worker route

As part of its consideration, the MAC has been asked to ensure that the commitments made to the Mode 4 provisions of free trade agreements concerning ICTs are fully implemented under the Immigration Rules.

What has the MAC been asked to consider beyond ICTs?

The Home Secretary has confirmed an intention to expand the provisions for overseas businesses to allow them to transfer a team of workers to the UK to establish a UK branch or subsidiary (currently they can only transfer one senior executive), and to send teams to the UK to work on a high value goods or services contract. The MAC has been asked to make recommendations on the eligibility criteria for the workers and for the sending organisation.

What will the MAC’s approach be for working on this commission?

In accepting the commission, Chair of the MAC, Brian Bell, notes that as the ICT category is used by a limited number of companies, the MAC’s approach to engaging with stakeholders may be in a slightly different format than usual. There will still be a Call for Evidence (CfE) and a series of engagement events with key stakeholders, due to start in early 2021. Employers with offices in the EEA who have not previously needed to use the UK immigration system may wish to ensure they respond to the CfE or contact the MAC directly to ask to be included in stakeholder engagement events.

We will be providing an overview of the key elements of the new immigration system at our Immigration Law Academy on 23 and 24 November. If you have any specific queries about the new system or the MAC ICT commission, please get in touch with a member of the immigration team.

Related Item(s): Immigration & Global Mobility

Author(s)/Speaker(s): Andrew Osborne, Tyler Jones,

Under the Home Office’s current guidance for right to work checks (“RTW”), it is possible to conduct a fully compliant initial or follow-up RTW without seeing the individual face-to-face. Where this is not possible during the COVID-19 pandemic, the Home Office has instituted a temporary adjusted procedure, which must be backed up by retrospective checks in due course. We have summarised the options and procedures below, as well as highlighting some general points to be aware of during the pandemic.

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(Updated as of 15 October 2020)

Key points from latest guidance and situation

We have included additional text on conducting right to work checks for individuals who have applied for or have been granted exceptional assurance.

We have also noted that we have asked the Home Office to consider the situation at the time the adjusted process is brought to an end, as the current policy for retrospective checks may be a significant burden for larger employers who have carried out many adjusted checks. Accordingly, they are considering extending this concession and allowing video call checks to proceed into the new immigration system. This is still under consideration however, so it is important to continue to retain complete records of those checked in this way, in case re-checking is required in the future. .

A fully compliant RTW can be done in one of two ways, without face-to-face contact.

1. Remote RTW check for an individual holding a Biometrics Residence Permit (“BRP”) or Pre-Settled/Settled Status under the EU Settlement Scheme (“EUSS”)

For anyone who has a BRP card or status under the EUSS, it is possible to conduct an online RTW while the employee is present via a video call. The employee must give their permission for an online RTW to be carried out. If permission is not given, a manual check must be undertaken instead.

First, the individual accesses their online immigration record at https://www.gov.uk/prove-right-to-work. They will need to follow the prompts to create a one-time use share code and provide you with this, either as an email generated through the GOV.UK website or by them taking a note of the share code and advising you of it. The share code must be used within 30 days of its creation. Please be aware that the Home Office will have a clear audit record of the time and date you use the code to carry out the RTW. To ensure you are covered by the excuse against having to pay a civil penalty for illegal working, you must make sure you do the online check before the person actually starts work.

You must use the employer’s link at https://www.gov.uk/view-right-to-work to login with the code. Viewing the individual’s record is not sufficient. Once you have logged in, you will be able to view the individual’s profile along with what employment they are allowed to undertake on their visa status. You should check the photograph depicted as well as any employment restrictions that are advised on their record. You should login while the person is present via a live video call eg Skype or FaceTime, in order to confirm they are the person depicted on their online profile, just as you would for a standard face to face RTW.

Please ensure that you keep a copy of the online check. We would suggest a screenshot of the video call open concurrently with the online RTW screen showing the person’s details. You can save this as a hard or soft copy but it should be in an unalterable format, dated and clearly signed or marked by the person taking the check so that it is clear they are an authorised and appropriate employee of the company, taking the check on or before the individual’s first day of employment (in the usual way for a valid RTW).

2. Remote RTW check for everyone else

For those who do not hold a BRP card or status under the EUSS as above, for example, British citizens, you can conduct the RTW if you are in possession of their original evidence of right to work, eg their current passport, and then checking its validity etc in the usual way but via a video call. The same records must be retained ie certified dated copies either in hard copy or soft copy. The person conducting the check must see the original document to verify it against the video call of the person. This option may prove not to be feasible in some cases currently due to logistical and security issues relating to the movement of original documents.

Temporary adjusted procedure during the COVID-19 pandemic

On 30 March 2020, the Home Office published an adjusted procedure to be used as a work-around for the time-being if carrying out a fully compliant RTW is not possible.

Under the adjusted policy, employers should take the following steps:

1. Ask the prospective or existing employee to provide you with a scan or photo of their right to work documents
2. Hold a video call with the person and ask them to hold up their original documents
3. Check the documents shown in the call against the scan/photo received (we would also suggest that you check these against the physical appearance of the person on the call and that you take a screenshot of the video call and the person holding up their documents)
4. Mark the copies with the printed name of the person conducting the check, their signature and the wording ‘adjusted check undertaken on [date] due to COVID-19’

If the person cannot show their documents, for example because they have an outstanding application with the Home Office, you should contact the Employer Checking Service and obtain a Positive Verification Notice (PVN). This will provide a statutory excuse for six months. After this time a further PVN will be required unless the worker is able to satisfy a fully compliant RTW or a RTW under the adjusted procedure in the interim.

You should retain a log of all RTWs conducted using the adjusted procedure. This is because you will need to carry out a retrospective RTW for all employees for whom you have used the adjusted procedure. This must be done no later than eight weeks after the Home Office announces that the adjusted procedure has ended. It has now been a considerable period of time since these measures have been implemented and it is clear that for some larger employers, carrying out retrospective checks will be a significant burden. We have asked the Home Office to take this into account when ending the adjusted process, and issuing revised guidance as appropriate. We will be monitoring for further announcements over the coming months and will advise clients when they happen.

Before the Home Office announces the adjusted procedure has ended, you may opt to undertake retrospective checks, or not to use the COVID-19 adjusted procedure where it is operationally feasible to do so. This might be possible where employees who undertake RTWs have returned to the workplace and the individuals for whom a retrospective check is required either agree to courier their original documents to the workplace, or to complete a socially distanced face-to-face check at the workplace. There is no requirement to do this, it will just minimise the number of retrospective checks you need to do within the eight weeks after the adjusted procedure ends. 

When completing a retrospective RTW, you should certify a copy of the original documents in the usual way, including the additional wording ‘The individual’s contract commenced on [date] The prescribed right to work check was undertaken on [date of retrospective check] due to COVID-19’.

Both checks must be retained on file for record-keeping compliance purposes.

If, at the stage of the retrospective check it comes to light that a person you have employed does not have the right to work, the Home Office expects you to end their employment.

Right to work checks for those covered by the COVID-19 concession for Tier 2 and 5 applicants

On 14 April 2020 the Home Office announced a concession enabling Tier 2 or 5 applicants to start work with their sponsoring employer ahead of their application being approved, provided certain conditions are met. Full details of the concession are outlined here.

However, the Home Office has not issued corresponding guidance covering right to work requirements where the concession is used.

In the absence of a published policy from the Home Office, in addition to the documentation you would normally keep as part of your recordkeeping duties as a sponsor (ensuring these documents are in line with the information on the assigned CoS), we would suggest the following documentation is kept:

• Print-out of the COVID-19 advice for UK visa applicants and temporary residents on GOV.UK, as it appears on the date the person is due to start work

• Print-out of proof of the date the person’s pending application was submitted (this date must be before the date they start work in the role the application relates to)

• Agreement from the person that they will notify you as soon as they receive any communication from the Home Office about the validity or outcome of their application

As a back-up you should schedule reminders to follow up with the applicant in the same way as you would for any other employee with a pending immigration application.

You should also contact the Employer Checking Service and request a Positive Verification Notice, however a negative notice should not be taken as conclusive evidence the person does not have the right to work under the concession. This is because the Home Office’s internal systems may not have been updated to recognise the right to work flowing from the concession. If this happens, you should contact the Home Office to explain the situation and ask for a Positive Verification Notice to be issued.

You should carry out a full right to work check as soon as possible once the person has their new BRP details, adding a wording such as “the individual’s contract commenced on [insert date] under the COVID-19 concession for individuals with a pending [Tier 2/Tier 5] application for further leave to remain, published by the Home Office on 14 April 2020. The prescribed right to work check was undertaken on [insert date] following the availability of [his/her] BRP.”

Practically, you may prefer to use the online right to work check option if there are still issues with reviewing original documents at the time the person receives their BRP details. This would avoid having to use the COVID-19 adjusted right to work process and then having to do a further check once the adjusted procedure has ended and the original BRP can be presented to you.

In the event the application is not successful, the Home Office expects you to stop sponsoring the person and for them to stop working for you. You should also consider seeking employment law advice in this situation.

 

Right to work checks for those covered by the COVID-19 extensions for those who are unable to leave the UK

For those who have received confirmation of an extension from the Home Office by email after making an application for this either by contacting the Coronavirus Immigration Team by email or through using the Home Office’s online form, we would suggest that you ask the employee to email the Home Office at CIH@homeoffice.gov.uk and to request for a further BRP to be issued. Once issued, a check using the BRP can be carried out.

Right to work checks for those who are unable to leave the UK and have applied for or have been granted exceptional assurance

The exceptional assurance process is an arrangement the Home Office has put in place for those who intend to leave the UK but who were unable to do so before the end of the grace period on 31 August 2020, or before the expiry of their leave in the case of leave due to expire between 1 September 2020 and 31 October 2020.

In most cases it will be preferable for any employees who are unable to depart the UK but who want to continue to be able to work to consider making an application for further leave to remain before their leave expires. We are able to advise on the options for this as needed.

For those who choose to use the exceptional assurance process, the Home Office has confirmed in an update to its guidance on 16 September 2020 that those who are granted exceptional assurance are permitted to work, study or rent private accommodation in the UK if their previous immigration conditions allowed this. There is no mention of whether this will also be the case while a request for exceptional assurance is under consideration, however it would be the most sensible approach. We have asked the Home Office for clarification on this point.

Pending being able to complete a check, you should retain a copy of the email the employee received from the Home Office confirming the extension. If the person originally received confirmation of an extension to 31 May 2020, you should also retain a print-out of the COVID-19 advice for UK visa applicants and temporary residents on GOV.UK as at the date of the check. This webpage should confirm that a further extension was automatically granted to 31 July 2020. It should also confirm that a further grace period applies between 1 August 2020 and 31 August 2020 for individuals whose leave was automatically extended to 31 July 2020, as well as those whose leave is due to expire during August 2020.

For those employees who have requested or have been granted exceptional assurance, we would suggest that you contact the Employer Checking Service to request a Positive Verification Notice.

We would also suggest that you copy and retain:

• The Home Office’s COVID-19 guidance for applicants, as at the date of the check

• The correspondence between the applicant and the Home Office confirming submission of the request for exceptional assurance and its grant

You should ask the employee to keep you updated on the progress of any outstanding request for exceptional assurance and set a reminder to follow up with the person periodically, eg fortnightly. You should also set a reminder for further confirmation of their status ahead of the expiry date of the exceptional assurance once granted..

What happens if we employ someone to work illegally?

Employing someone to work illegally will generally make an employer liable for a civil penalty and a fully compliant RTW is the only way to be sure of reducing the £20,000 penalty to £0. Should the Home Office deem that you knew or should reasonably have known the individual was working illegally, then this would be dealt with as a criminal matter, which can attract an unlimited fine and up to five years imprisonment. Thus it is crucial to have robust systems in place for compliance.

The Home Office do have the option to reduce the penalty where there are mitigating factors but no fully compliant RTW. Usually, they would reduce the penalty by £5,000 for each mitigating factor from the below list of four accepted mitigating factors:

1. where the employer has self-reported the suspicion of illegal working;
2. has conducted a partial RTW;
3. has cooperated with the Home Office on the investigation; and/or
4. has generally robust systems in place for the prevention of illegal working.

Where it is a first breach, it is possible to reduce the penalty to £0. However, if it is not a first breach, the penalty usually cannot be reduced to less than £5,000 per illegal worker. It cannot be guaranteed that the Home Office would extend its discretion to reduce the penalties for reasons beyond those listed.

Any civil or criminal sanctions imposed may also affect an employer’s sponsor licence. It is therefore very important to take all practical steps to ensure that all employees have the necessary right to work in the role they have been hired for.

Other important points to note during the COVID-19 pandemic

You should continue to bear in mind that according to the Home Office’s current published guidance, only those documents on the Home Office’s RTW checklist are acceptable as evidence of right to work, even if you are using the temporary adjusted procedure. The list can be foundhere. The situation has been complicated by the introduction of the concession for Tier 2 and 5 migrants, and the Home Office has not issued any specific guidance to cover these people.

You should also be cautious not to make arrangements during the coronavirus pandemic that you may be held to know, or to have reasonable cause to believe, constitute illegal working.

Less obvious examples of illegal working that may occur include:

• Employing a sponsored employee in a role other than the one they have been sponsored to carry out, unless they meet the requirements of the published concession for Tier 2 or 5 applicants (this could be an issue currently where you are trying to reallocate staff due to changed business needs during the pandemic)

• Allowing a Tier 4 student to work above the maximum number of hours a week they are allowed to work during term-time

• Allowing a Tier 4 student to work at all if it comes to light that they have dropped out of their studies

Lastly, it will be important to be alive to the possibility of impersonation in the current circumstances, particularly if the copies of documents or image on the video call are not clear. Retrospective checks should be carried out in line with the Home Office’s guidance and paying careful attention to ensure the employee is the person depicted in the original documents they present.  

Please contact our immigration team if you have any questions or require further assistance.

(Updated as of 15 October 2020)

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

Author(s)/Speaker(s): Andrew Osborne, Naomi Hanrahan-Soar,

The Migration Advisory Committee (MAC) has recommended a significant expansion of the occupations deemed to be in shortage for the purposes of sponsorship under the new Skilled Worker category, which will replace Tier 2 (General) from 1 January 2021. The Home Office will now need to consider the recommendations and finalise the Immigration Rules for Skilled Workers.

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The report was published on 29 September 2020. In it, the MAC has erred on the side of being more willing to recommend some occupations for inclusion on the shortage occupation lists (SOLs) on the basis it is sensible to do so in the context of the ongoing COVID-19 pandemic.

The MAC has suggested it would be appropriate for a minor review of the SOLs to take place on an annual basis, with a major review to be scheduled every three years once the economy is no longer affected by the pandemic. New occupations could be added following a minor review, and others flagged for removal but not actually removed. Occupations at risk of removal would however be flagged. A major review would involve a full assessment of all occupations. This would replace the current ad hoc approach with a predictable schedule of reviews, providing more timely responses to changing labour market conditions and more predictability for employers.

What benefit will there be to an occupation being accepted as being in shortage?

In general, rather than being paid at least the higher of either £25,600 or the going rate for their occupation, migrants filling shortage occupation roles will only need to be paid at least the higher of £20,480 or 80 percent of the going rate for their occupation. Lower rates also apply for occupations covered by a national pay scale and to individual migrants who have a PhD that is relevant to their role or who fall within the definition of being a ‘new entrant’ to the labour market.

Employers outside of the highest earning cities in the UK will find it more affordable to sponsor individuals in shortage occupations under Skilled Worker than under the present Tier 2 (General). The overall cost of sponsorship will still be high however, so some employers may opt instead to wait for a candidate who does not require sponsorship, or to offshore or eliminate roles through business restructuring. 

What occupations are recommended for deletion?

Chefs are not considered to be appropriate for continued recognition at the present time, but the position will be reviewed in the MAC’s proposed 2021 report. This RQF level 3 occupation will be eligible for sponsorship under the Skilled Worker route, however employers will have to pay at least £25,600 to do so, which represents a wage level at the 70^th percentile for this occupation. Once the economy has recovered from the effects of the pandemic, it is likely that employers will ask for chefs to be added back to onto the list as it will in many cases be uneconomical to sponsor them otherwise.

What occupations are recommended for inclusion?

The new Skilled Worker route will cover occupations from RQF level 3 (A-level equivalent) and higher, whereas Tier 2 (General) only covers occupations from RQF level 6 (degree level equivalent). It is therefore not surprising that the suggestion is to significantly expand the lists at the present time.

If accepted by the Home Office, the occupations recognised as being in shortage would rise from approximately 9 percent of total UK employment to approximately 14 percent.

The bulk of the newly recommended occupations fall within RQF levels 3 to 5. The Scotland-only list has been flagged for expansion, and new lists for Wales and Northern Ireland have been recommended for the first time.

At least initially, the MAC recommends retaining all the currently recognised shortage occupations at RQF level 6 or above. In addition, three new occupations (health services and public health managers and directors, pharmacists and physiotherapists) have been considered suitable for inclusion on the UK-wide list. One new RQF level 6 occupation, Health professionals n.e.c, has been recommended for the Wales-only list, which covers job titles such as audiologist, dental hygiene therapist, dietician-nutritionist, family planner, occupational health adviser and paramedical practitioner.

Senior care workers, nursing assistants and a range of other health occupations are reluctantly recommended for recognition as being in shortage. The MAC’s view is that although it would be better for wage funding to be increased to address lack of staff to fill these roles, the end of free movement for EEA/Swiss nationals and their family members will place significant pressure on the social care sector if this does not happen soon, or at all. Employers of senior care workers should however be aware that Home Office is likely to heavily scrutinise whether a particular migrant’s duties and responsibilities meet the definition of being a ‘senior’ carer.

Two occupations have been recommended for ‘upgrade’ to RQF level 3, meaning that they will be eligible for sponsorship under the Skilled Worker route. These are vent chick sexers and deckhands on large fishing vessels of 9 metres and above. Deckhands have also been recommended for inclusion as a shortage occupation.

Below is a listing of the new occupations recommended for inclusion. These are in addition to the occupations currently recognised at RQF Level 6 and above as set out in the Immigration Rules, Appendix J.

New inclusions to the UK-wide shortage occupation list

Standard Occupational Classification (SOC) code and description	Job titles included on the United Kingdom Shortage Occupation List and further criteria
1181 Health services and public health managers and directors	All jobs in this occupation code
1242 Residential, day and domiciliary care managers and proprietors	All jobs in this occupation code
2213 Pharmacists	Alljobs in this occupation code
2314 Secondary education teaching professionals	Secondary education teachers in all modern foreign languages are now recommended rather than just teachers of Mandarin
3111 Laboratory Technicians	Alljobs in this occupation code
3131 IT operations technicians	Alljobs in this occupation code
3412 Authors, writers and translators	Interpreters only
3539 Business and related associate professionals n.e.c.	Only Data Analysts andBusiness Analysts
3565 Inspectors of standards and regulations	Only Meat Hygiene Inspectors (also known as Official Auxiliaries)
5112 Bricklayers and masons	All jobs in this occupation code
5119 Agricultural and fishing trades n.e.c.	Only those jobs in the fishing industry
5212 Moulders, core makers & die casters	All jobs in this occupation code
5215 Welding trades	All jobs in this occupation code are recommended for inclusion, rather than just high integrity pipe welders where the job requires at least three years’ on the job experience
5223 Metal working production and maintenance fitters	All jobs in this occupation code
5231 Vehicle technicians, mechanics and electricians	All jobs in this occupation code
5241 Electricians and electrical fitters	All jobs in this occupation code
5249 Electrical & electronic trades n.e.c.	Only the following jobs in this occupation code: • Fire alarm technicians • Electronics hardware design engineers
5431 Butchers	All jobs in this occupation code
6131 Veterinary nurses	All jobs in this occupation code
6141 Nursing auxiliaries and assistants	All jobs in this occupation code
6144 Houseparents and residential wardens	All jobs in this occupation code
6146 Senior care workers	All jobs in this occupation code
9119 Fishing and other elementary agricultural occupations n.e.c.	Only the following jobs in this occupation code: • Deckhands on large fishing vessels (9 metres and above) with at least three years full time experience using their skills

 

New inclusions to the shortage occupation list for Scotland

Standard Occupational Classification (SOC) code and description	Job titles included on the Scotland only Shortage Occupation List and further criteria
2127 Production and process engineers	Only Chemical Engineers within the nuclear industry
3234 Housing officers	All jobs in this occupation code
6121 Nursery nurses and assistants	All jobs in this occupation code
6122 Childminders and related occupations	All jobs in this occupation code

 

New shortage occupation list for Wales

Standard Occupational Classification (SOC) code and description	Job titles included on the Wales-only Shortage Occupation List and further criteria
2219 Health professionals n.e.c.	All jobs in this occupation code

 

New shortage occupation list for Northern Ireland

Standard Occupational Classification (SOC) code and description	Job titles included on the Northern Ireland-only Shortage Occupation List and further criteria
3234 Housing officers	All jobs in this occupation code
5112 Horticultural workers	All jobs in this occupation code
5432 Bakers and flour confectioners	All jobs in this occupation code
5433 Fishmongers and poultry dressers	All jobs in this occupation code

 

We will be taking a detailed look at sponsoring skilled workers under the new immigration system at our Immigration Law Academy on 23 and 24 November. We also offer a range of training, handbooks and onsite support in this area through our Immigration Solutions for HR. If you have any queries about this development, please get in touch with a member of the immigration team.

 

Related Item(s): Immigration & Global Mobility

Author(s)/Speaker(s): Andrew Osborne, Joanna Hunt, Naomi Hanrahan-Soar, Stephen OFlaherty,

Regulations authorising the increases to the surcharge were made on 6 October 2020. For many applicants, the new charge will be £624 per year per applicant instead of the current £400.

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Applicants for the Health and Care visa under Tier 2 continue to be exempt from paying the charge, as are their dependants.

For further details on the increases for all other applicants, please see our earlier article here. The regulations are available to view in full here.

We would suggest that where possible, immigration applications are submitted before the increase takes effect. If you need assistance, please contact a member of the immigration team.

Related Item(s): Immigration & Global Mobility

Author(s)/Speaker(s): Andrew Osborne, Joanna Hunt,

Regulations authorising the increases to the surcharge were made on 6 October 2020. For many applicants, the new charge will be £624 per year per applicant instead of the current £400.

Text:

Applicants for the Health and Care visa under Tier 2 continue to be exempt from paying the charge, as are their dependants.

For further details on the increases for all other applicants, please see our earlier article here. The regulations are available to view in full here.

We would suggest that where possible, immigration applications are submitted before the increase takes effect. If you need assistance, please contact a member of the immigration team.

Related Item(s): Immigration & Global Mobility

Author(s)/Speaker(s): Andrew Osborne, Joanna Hunt,

On 10 September 2020 the Home Office published new Immigration Rules for students. These provide the first glimpse of the new Points Based Immigration System (PBIS), and what some of its implications will be not only for students, but for employers and workers as well.

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Statement of Changes in Immigration Rules HC 707 introduces new Student and Child Student routes. These come into effect at 9 am on 5 October 2020 for non-EEA nationals and EEA nationals making applications from abroad, although EEA nationals will have their entry clearance issued starting from 1 January 2021 at the earliest.

EEA nationals who are already in the UK will not be able to apply until 1 January 2021. This is because EEA nationals who arrive in the UK before 11 pm on 31 December 2020 will still be covered by the Brexit transition period and will be eligible to apply under the EU Settlement Scheme. Those who come to the UK as a visitor will not be allowed to switch their immigration status to a student route in-country. They will have to depart the UK and apply for entry clearance.

Benefits of the new Rules for international students and employers

Under the new Rules there will no longer be an eight-year time limit on postgraduate studies. This means employers will have a greater chance of being able to hire more highly skilled workers in the UK after they have completed their full programme of studies.

When combined with the proposed two-year graduate visa, international students will now have a clearer route to settlement following ten years’ continuous residence in the UK, which means a lower proportion will require sponsorship by an employer. This will provide some administrative and cost savings.

Due to the promised abolition of the resident labour market test under the new Skilled Worker route (which will replace Tier 2 (General)), it will be a more streamlined process to sponsor an international student in circumstances where they have not completed their course in the UK (or have not completed at least 12 months of their course in the case of PhD students).

In some cases, international students may be considered ‘new entrants’ to the labour market, and so may be paid a minimum of 70 percent of the relevant going rate for the occupation they are sponsored to fill as Skilled Worker. This will enable sponsorship to be possible a pay level that is in line with market expectations for those who are at the beginning of their career.

Tips for employers intending to sponsor workers under the new system

The new Rules for students provide some clues about how some aspects of the PBIS will work for employers, and therefore what they need to be on top of. 

Tip 1: Review immigration and nationality considerations for EEA nationals and their family members as soon as possible

The general position is that the EU Settlement Scheme is a much cheaper, more flexible option for EEA nationals and their family members. Entering the UK by 31 December 2020 and applying under this route rather than entering next year under the UK’s domestic immigration system will in most cases be advantageous both for individuals and employers.

Employers should therefore consider bringing start dates forward into 2020, or ensure EEA nationals at least enter the UK by 31 December 2020 so that they and their family members are eligible to apply under EUSS. Potential travel disruptions and self-isolation requirements due to COVID-19 should be factored into the planning process.

Eligibility to apply under EUSS should be considered both for people who intend to be based permanently in the UK, and those who intend to spend significant time here in the foreseeable future, eg senior executives, other employees or contractors who need to undertake frequent business travel or productive work in the UK.

The necessity and timing of EUSS applications, citizenship applications and British passport applications should also be considered, taking into account the following:

• Naturalisation applications for people with a permanent residence document can be submitted 12 months after the date the Home Office has recognised on the permanent residence approval letter, however the Home Office has recently confirmed that individuals who have a permanent residence document will not be able to apply for naturalisation based on this after 31 December 2020 if they have also been granted settled status under EUSS. They must wait until at least 12 months has elapsed since they were granted settled status. Naturalisation applicants also must build in time to prepare for and pass the Life in the UK Test;

• Individuals who have a British citizenship application pending on 30 June 2021 (the main in-country deadline for applications under EUSS) must make an application under the EUSS by 30 June 2020, otherwise they will be considered to be an overstayer; and

• Some EEA national children born in the UK may be British by birth, and should therefore not make an application under EUSS. Instead, they should consider making a British passport application to evidence their British nationality and facilitate their travel to and from the UK after the end of the transition period.

Tip 2: Be ready for new terminology, cross-referencing headaches and teething problems

The Rules have been drafted in a new style, following on from the report the Law Commission published this January on simplifying the Immigration Rules. Although the finished product may be simpler overall, in the interim there will be a need for extensive cross-referencing, bringing with it potential for confusion. The old Immigration Rules will be replaced by new ones on a phased basis, and the Rules still need to be workable overall in the meantime.

The new routes for students and workers will mainly be under the Points Based Immigration System (PBIS), which is how the Home Office has chosen to distinguish the new categories from the previous Points-Based System (PBS) categories introduced from 2008. The terms ‘leave to enter’ and ‘leave to remain’ are replaced with the less technical sounding ‘permission to enter’ and ‘permission to stay’.

The student categories are set out in two new appendices to the Immigration Rules. We can expect a similar approach when the Rules are published for workers, with separate appendices being expected for Skilled Workers and Intra-Company Transfers. It is not clear yet whether there will be multiple appendices for the various temporary worker categories that currently sit within Tier 5.

The appendix for Students includes provisions relating to their dependants. The choice not to centralise the Rules for dependants across a range of immigration categories could turn out to be a headache both for the Home Office and users of the Rules. There is a high chance that the Rules for dependants in different immigration categories will diverge over time, either intentionally or due to drafting errors. This introduces complexity that could trip some users of the system up.

The two student appendices cross-reference to other ones that will cover common issues and will be relevant for work categories as well. These are:

• Appendix ATAS – this covers the requirement for some adults in most immigration categories who are intending to undertake studies in some subjects to obtain approval under the Academic Technology Approval Scheme (ATAS). The main change is that the new Appendix exempts nationals of certain countries from having to get this approval.

• Appendix English Language – this now provides that where an applicant has met the English language requirement in a previous UK immigration application under any category, they will not be required to meet it again unless the current application requires English language ability at a higher level. Malta and Ireland have now been added as majority English-speaking countries

• Appendix Finance – this covers maintenance requirements

Although the number of cross-referenced appendices will be lower than under the current PBS, there will still be a need to look in multiple places to find out what the full requirements of an immigration route are.

Alongside revisions to the Immigration Rules, the Home Office will also have to update all its related website content and application forms, as well as its guidance for sponsors, applicants and case workers.

All in all, this amounts to a mammoth undertaking, and errors will inevitably be made. It will be a considerable time before the nuances of the new order are fully understood, and any unintended issues are ironed out. Users of the system will need to be vocal about raising issues, and will likely need to be persistent to get them satisfactorily resolved.

Tip 3: Pay attention to validity requirements

One of the notable features of the new student Rules is that in addition to the existing requirements to apply on the appropriate application form, to pay application fees and the Immigration Health surcharge and to provide biometrics and a passport or travel document as proof of identity, some requirements that are currently considered to be eligibility requirements will become application validity requirements. For Students, these include:

• The age of the applicant

• The immigration category or status the applicant is allowed to switch from

• Having a Confirmation of Acceptance for Studies reference number at the date of application

• Having the consent of a government of international sponsorship agency where the applicant has been sponsored in the 12 months before the date of application

 

The benefit of this change is that if an application is deemed to be invalid, the application fee will be refunded, whereas currently it would not be.

 

The much larger pitfall however is that for in-country applicants, an invalid application will mean that no application will have been considered to have been made at all. This can have severe implications for people who attempt to make an application for further permission to stay immediately before their current permission runs out, because a statutory extension of their leave will not arise.

 

If such a person only finds out their application is invalid after their immigration permission has expired and resubmits their application after the expiry of their permission, they will be doing so as an overstayer. This introduces significant complexity and uncertainty into the application process. Also, without a statutory extension of leave, the person would have no immigration conditions, so would not be able to work, study or rent private accommodation during the consideration of their application, even if they were allowed to do so under their previous expired leave.

 

The Home Office may still provide an applicant with a single opportunity to correct issues that would render their application invalid. However, it remains to be seen what the mechanism will be to enable consideration of an application outside the Immigration Rules where a validity requirement is not met, eg where an applicant is asking for a switching requirement to be waived.

 

Tip 4: Get any sponsor licences in order and stay on top of CoS allocations

 

Having a Confirmation of Sponsorship (CoS) on the date of application will almost certainly be a validity requirement for an application under a sponsored work route. Employers will need to make sure they get the timing right for any sponsor applications and requests for CoS allocations so that immigration applications are not unnecessarily delayed. In some cases, timing issues around this could break the continuity of leave of sostme migrants, re-setting the clock for indefinite leave to remain.

 

Employers should review their sponsor licence and CoS allocation needs regularly. They should be aware that sponsor licence applications can take around eight weeks to process and standard requests for revised CoS allocations can take up to 18 weeks. These timelines can be longer if a sponsor visit is required. They could also change if a priority consideration process is resumed or the overall consideration process is revised under the new system.

 

Tip 5: Pay attention to switching requirements

The new Rules for students make good on the Home Office’s stated intention to liberalise and simplify the situations where a person will be able to switch from one immigration category or status into another without the necessity to leave the UK and apply for entry clearance.

For Students, switching will only be prohibited from the following types of permission:

• Visitor

• Short-term student

• Parent of a Child Student

• Seasonal Worker

• Domestic Worker in a Private Household

• Outside the Immigration Rules

The list is likely to be broadly similar for applicants in work categories. As noted above, failure to meet the switching requirement will ordinarily make an application invalid, and clarification will need to be sought on how a request to waive a switching requirement ought to be made. Another point that is not yet resolved is whether the Home Office will consider applications currently being approved under the COVID-19 concessions to have been granted outside the Immigration Rules or not.

Tip 6: Consider certifying the financial requirement if possible

For students, it will no longer be necessary to provide evidence of maintenance funds (which will be known as meeting the financial requirement under the new system) if they have been in the UK with immigration permission for at least 12 months already.

We will need to wait and see what the financial requirements (the maintenance requirement under the present system) will be for the Skilled Worker, Intra-Company Transfer and other work-related immigration categories, however it is likely that a similar provision will be made.

Assuming employer certification is still possible under the new system, it may be a good way to minimise the risk that an application will be refused due to the financial requirement not being met. Currently, there is a published list of financial institutions that are or are not deemed to satisfactorily verify financial statements. However, the recently published Rules show that the financial requirement will not be met if, amongst other things, the Home Office is unable to make satisfactory verification checks with the financial institution. The potential problem is that individual applicants will not know in advance whether or not the Home Office will be able to do that.

Conclusion

Whilst the new Immigration Rules for work routes will not be published until later in the Autumn, the new Rules for students do provide some significant pointers on the Home Office’s general thinking and flag some areas where further policy clarifications will be needed.

We will be exploring the new system, along with the updated position on COVID-19 arrangements and right to work in our  Immigration Law Academy on 23 and 24 November 2020. If you have any specific queries on the new system and how it may affect you, please get in touch with a member of the immigration team.

Related Item(s): Immigration & Global Mobility

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

Employers and other stakeholders have until 1 October 2020 to provide the Independent Chief Inspector of Borders and Immigration (ICIBI) with views on how well the commercial partners of UK Visas and Immigration are performing, both for applications made in the UK and abroad.

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UKVI’s intention in using commercial partners to provide ‘front end services’ (FES) is to make the UK visa application process accessible and easy to use. Sopra Steria operates FES for UKVI inside the UK. TLScontact and VFS Global provide the services abroad.

The ICIBI is seeking evidence from stakeholders on whether commercial partners are meeting the needs of UK visa applicants. Submissions must be sent by email using the link indicated in the call for evidence.

The ICIBI is particularly interested in receiving feedback on:

• Accessibility and ease of use of the online application forms, payment process, appointment booking system, document submission process and any additional services offered by UKVI or the commercial partner

• Customer experience when attending appointments at a commercial provider

• Commercial partners’ complaints handling processes

• The clarity of guidance and instructions provided by UKVI and commercial partners to help applicants make their application

• The availability and usefulness of advice and support, including through customer contact centres

• Whether applicants needed additional help from third parties such as legal representatives, non-government organisations or MPs to deal with the application process, and what the results were

• The experiences of vulnerable individuals who require additional support to submit applications and to book and attend appointments

If you have any queries about the call for evidence, please get in touch with a member of the immigration team.

 

Related Item(s): Immigration & Global Mobility

Author(s)/Speaker(s): Andrew Osborne, Stephen OFlaherty,

EEA nationals and their employers are now turning their minds towards how frequent business/work travellers and cross-border commuters can continue to come to the UK from 2021. For some, the best solution may be offered by the EU Settlement Scheme (EUSS), but there are also other options to consider.

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This article is not intended to cover the position for Irish citizens, who will continue to be able to live and work in the UK without restriction under the Common Travel Area arrangements. They may however apply under the EUSS if they choose to.

EU Settlement Scheme

The EU Settlement Scheme (EUSS) may be a good option for some EEA/Swiss (‘EEA’) nationals who spend time in the UK for work or business.

It may be relevant for EEA nationals who enter the UK by 31 December 2020. The application should ideally be made as soon as possible after entry, as this minimises the extent of supporting documentation required.

Pre-settled status is valid for five years and only lapses after an absence from the UK of two consecutive years. There are no restrictions on work or study in the UK during the validity of pre-settled status, so this offers more flexibility than most other UK immigration categories.

To become eligible for settled status, a person must normally spend a continuous period of five years in the UK, with no more than six months absence in any 12-month period. There are limited exceptions to this, such as one absence of up to 12 months being allowed for an important reason, such as childbirth, serious illness, vocational training or an overseas posting for work. Absences due to compulsory military service, crown or armed forces service, or accompanying a family member on crown or armed forces service are also ignored.

Even if the person’s pattern of stay in the UK will not allow them to proceed to settlement, pre-settled status could be worthy of serious contemplation for those significant time in the UK over the next five years, particularly if their activities in the UK do not fall neatly into another immigration category.

UK immigration applications can be extremely expensive, and another major benefit of the EUSS is that there is no application fee to pay.

Sponsored work visa

The UK will be revamping its immigration categories for work, which we cover in this article. For EEA nationals and their employers, it will be important to understand which work category is the most suitable to meet their short and longer-term goals.

Some issues to think about include:

• Obtaining a sponsor licence, or amending an existing one

• Ensuring that right to work checks, as well as record keeping and reporting duties are being complied with if the employer has a sponsor licence

• The cost of the immigration process, which will include fees for a sponsor licence (if one is not already held), certificate of sponsorship, visa application fees, immigration skills charge, immigration health charge, commercial partner charges and legal advice

• Whether the role meets the relevant skill level for sponsorship

• Whether the salary on offer is sufficient

• The qualifications and employment history of the applicant

• The English language ability of the applicant

• How long the period of work will be

• Whether the relevant work categories offers a path to settlement in the UK if this is a long-term goal

As an indication, sponsoring a single skilled worker for five years where the employer also needs to obtain a sponsor licence can cost between £6,000 and £8,000.

In terms of forward-planning, UK employers who know that they will be recruiting an EEA national in the new year may wish to consider whether to bring the start of their physical work in the UK forward to 2020, or whether it is feasible for the person to enter the UK by 31 December 2020 if they do not already live in the UK. This strategy would be significantly less costly than using a sponsored work option. 

Frontier worker document

Under EU law, a frontier worker is a person who works in the frontier zone of an EU member state but returns each day or at least once a week to the frontier zone of an adjacent country where they live and are a national. The UK only has a frontier zone with the Republic of Ireland.

Individuals who are employed or self-employed in the UK as a frontier worker before the end of 2020 may be eligible to apply for a frontier worker document, which will enable them to continue to do this from 2021. Details of the qualifying criteria and process are expected to be published on GOV.UK later this year. It is possible that the definition of frontier worker adopted by the UK could include other cross-border workers commuting between the UK and any EEA country, but this will not be known until the policy is published.

Depending on the details of how long a frontier worker document will be available for, and what the criteria are, using this route rather than the EUSS may be more appropriate for some people if it will allow their employment or self-employment to continue for longer than five years in circumstances where a person not would not eligible for settled status under EUSS.

Visitor status

The UK’s visitor visa rules are due to be reviewed with effect from 1 January 2021, however it will still be the case that only limited business or work activities will be allowed. This may still be a suitable option for EEA nationals who only need to come to the UK for occasional business meetings or other short-term business-related activities.

This status cannot however be used to undertake productive work in the UK unless a specific provision allows, for example where a person needs to come to the UK for a month or less at a time for specific permitted paid engagements.

Entry to the UK as a visitor will be free for EEA nationals, however they may need to apply for an electronic travel authorisation (ETA) on a periodic basis for a small charge. The ETA scheme is due to be in place by 2025.

The maximum time that can be spent in the UK as a visitor on any one occasion is six months. A person must not use this route to base themselves in the UK, for example by using frequent or successive visits. They must not work, will have restrictions on study (currently study is only allowed for up to 30 days) and must not access certain public funds.

Other options

There may also be other options to consider depending on how much time a person intends to spend in the UK, the purpose of their intended presence and their personal circumstances. These may include the Youth Mobility Scheme, representative of an overseas business or family-related categories.

In our experience, it is beneficial to have a detailed initial discussion about what the goals and requirements are for each business and individual, so that short and longer-term implications of the various options can be explored. The time to do this is now, while travel from the EEA is still relatively straightforward despite the ongoing effects of the COVID-19 pandemic, and while participation in the EUSS still remains an option.

Please do get in touch with a member of our immigration team if you need assistance.

Related Item(s): Immigration & Global Mobility, Immigration

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