Covid-19 is causing many employees to ask if they can work from “home” for an extended period in an overseas country – for example, because it is their home nation, or their family is based there. This article explains the potential legal issues and how to avoid the traps.

Text:

Tax and pensions implications of working temporarily abroad

Salaries tax in Hong Kong

The taxation of employment income for employees temporarily working abroad will depend on whether their employment is considered “Hong Kong employment” or “non-Hong Kong employment”.   

In determining this question, the Inland Revenue Department will consider various factors, such as where the employment contract is negotiated, concluded and enforceable; where the central management and control of the employer is; and where the employee’s remuneration is paid. If “Hong Kong” is the answer to one or more of these questions, the employment is highly likely to be Hong Kong employment.

Employees with Hong Kong employment will generally remain subject to salaries tax in Hong Kong if they temporarily work outside of Hong Kong for part of the tax year.  However, if they work outside of Hong Kong for the full tax year, then no salaries tax in Hong Kong will be levied.

Employees with non-Hong Kong employment who temporarily work outside of Hong Kong will not be subject to salaries tax in Hong Kong for that period (whereas they generally would be for the days they carry out work in Hong Kong).

It should be remembered that liability for salaries tax in Hong Kong falls on the employee, rather than the employer.

Income tax may be payable in host country if certain conditions are satisfied

The starting point is that the host country may have taxing rights over the employment income that the employee earns while physically working in that country.  However, if there is a double taxation treaty (DTT) between Hong Kong and the host country, the employee will be subject to income tax of the host country only if certain conditions are satisfied.

Hong Kong has a DTT with 65 countries/ jurisdictions including its top trading partners – the UK, Japan and France. Hong Kong has also entered into a tax memorandum for the avoidance of double taxation with mainland China, which contains the essential provisions of a DTT.

The DTTs Hong Kong has entered into typically grant taxing rights on employment income to a host country when an employee is present in that host country for 183 days in any 12-month period.  In practice, this means that a short stay abroad in many locations is not going to result in the employee becoming liable for income tax in the host country.

It should be noted that employees who have already spent other periods in the host country in the same 12-month period (e.g. visiting family) may reach the 183-day threshold sooner than you think.  Also, there are conditions other than the physical period of stay which may grant the taxing right of employment income to a host country (e.g. if the remuneration is borne by a permanent establishment of that host county), so the relevant DTT must be checked carefully.

If the employee does become subject to tax in the host country, the same income may still be subject to tax in Hong Kong. In that situation, double tax relief will be available in accordance with the provisions of the DTT.

Pensions implications

Hong Kong does not have a comprehensive social security system like in other countries, but it does have something akin to a statutory pension. Most employers and employees in Hong Kong are required to make contributions to a mandatory provident fund (MPF) which is a regulated privately-managed retirement fund.

Where mandatory contributions are being made to an MPF, arrangement for the employee to work abroad will not affect the contributing obligations of the employer or the employee.  If the employer and employee are exempt from making MPF contributions (for example, where the employee is an expatriate employed in Hong Kong on a work visa for not more than 13 months), working abroad will not affect the exemption.

Risk of creating a permanent establishment is low but should be considered

In some situations, there will be a risk that the employee’s activities or presence in the host country will create a permanent establishment for the employer in that country.  This may be the case if, for example, the employee has a sales or business development role and is habitually exercising an authority to conclude contracts in the name of the employer while in the host country.

If a permanent establishment is created, the profits attributable to that establishment would be subject to corporate tax in that country.  Assuming the working-from-home arrangement is only short term, it would be difficult for the tax authorities to argue that a permanent establishment had been created.  The longer the arrangement continues, however, the greater the risk – particularly if the employee routinely negotiates the terms of contracts with customers which are simply “rubber-stamped” by Hong Kong.

Immigration implications of working temporarily abroad

From an immigration perspective, an employer should take into account whether an employee has the right to work in the relevant jurisdiction when considering whether to allow him/her to work remotely from there.

As an employment visa or similar is generally not required for short business visits, depending on the employee’s activities, it may be possible to characterise the employee’s stay as a business visit. The activities of the employee as a business visitor should, however, be limited to those typically undertaken during business trips (e.g. meetings and training). Restricting an employee’s activities in this way is unlikely to be practical for many employers and their employees, however, and, in general, the longer an employee carries out work in a country, the more difficult it will be to characterise their stay as a business visit. In some countries, work itself is prohibited even if the activities are restricted to those typically undertaken as a business visitor.

Employers may also need to consider any immigration issues that could arise on the employee’s return to Hong Kong. For instance, if the employee has any interest in applying for the right of abode in Hong Kong in the future, he/she should consider whether their absence from Hong Kong may affect their eligibility to do so. Generally, as part of the application process, periods of continuous absence for more than 6 months need to be declared and assessed by the Immigration Department.

Employment law and data privacy implications of working temporarily abroad

Employment law considerations

While it is possible to have a remote working arrangement from a Hong Kong employment law perspective, the employer would need to be cautious as to whether local employment laws and regulations would also apply. These may include minimum wage restrictions, paid annual holidays, statutory maternity/paternity entitlements and rights on termination.

Employers in Hong Kong are subject to both statutory and common law duties in respect of the health and safety of their employees, including a duty to provide and maintain a reasonably safe workplace. Failure to comply with such obligations may expose employers to potential claims. If an employee suffers a personal injury by accident which “arises out of and in the course of employment” (whether he/she is performing his/her duties in Hong Kong or abroad), the employer may be liable to compensate the employee. Employers should also ensure that they comply with any local health and safety requirements.

Transferring data outside of Hong Kong

There are currently no restrictions on the transfer of personal data outside of Hong Kong, as the cross-border transfer restrictions set out in section 33 of the Personal Data (Privacy) Ordinance (“PDPO”) were held back and have not yet come into force. Nevertheless, non-binding best practice guidance published by the Privacy Commissioner encourages compliance with the cross-border transfer restrictions in section 33 of the PDPO, which prohibits the transfer of personal data to a place outside Hong Kong unless at least one condition from a list of conditions is met. One such condition is that “the individual has consented in writing to the transfer”.

Therefore, if it is anticipated that personal data will be transferred outside of Hong Kong, the employer should obtain the data subject’s express, informed and voluntary consent before transferring such data. Employers should also consider the local data privacy laws and check if there are any restrictions on processing and storing personal data that need to be complied with there.

Practical considerations

• Only accept a remote working request for a country/jurisdiction outside of Hong Kong if the employee’s role can be performed effectively and lawfully abroad.

• Consider only approving requests for a short, time-limited duration where the employee’s expected return date is clearly documented.

• Seek local expert’s advice on any tax, immigration, employment, data privacy and health and safety obligations.

• If the employee will be carrying out data processing, check if his/her duties can be performed abroad without contravening data privacy laws in both the host country and Hong Kong.

• Review insurance policies to ensure that the current insurance coverage is sufficient to cover employees who are working abroad.

• Agree and record the terms of any temporary overseas working arrangement in writing to clarify the following:

• The employee will be liable for any additional income taxes which may be charged, and the employee will be responsible for any personal tax declarations in this regard.

• The employment contract remains governed by Hong Kong law.

• The employee is still working solely for the Hong Kong entity.

• If applicable, restrict the employee from carrying out any regulated activities whilst he/she is working abroad.

• The employee takes responsibility for ensuring they have the necessary technology and equipment in place to enable them to work effectively.

If you require any further advice on this subject, please reach out to your usual Lewis Silkin contact.

 

Related Item(s): Remote & flexible working, Remote working overseas, Asia Pacific 亞太區, Immigration law across APAC, Employment law in Hong Kong, Tax and reward schemes across APAC

Author(s)/Speaker(s): Kathryn Weaver, Kenneth Leung, Iris Chin, Katy Lee,

Covid-19 is causing many employees to ask if they can work from “home” for an extended period in an overseas country – for example, because it is their home nation, or their family is based there. This article explains the potential legal issues and how to avoid the traps.

Text:

Tax and pensions implications of working temporarily abroad

Salaries tax in Hong Kong

The taxation of employment income for employees temporarily working abroad will depend on whether their employment is considered “Hong Kong employment” or “non-Hong Kong employment”.   

In determining this question, the Inland Revenue Department will consider various factors, such as where the employment contract is negotiated, concluded and enforceable; where the central management and control of the employer is; and where the employee’s remuneration is paid. If “Hong Kong” is the answer to one or more of these questions, the employment is highly likely to be Hong Kong employment.

Employees with Hong Kong employment will generally remain subject to salaries tax in Hong Kong if they temporarily work outside of Hong Kong for part of the tax year.  However, if they work outside of Hong Kong for the full tax year, then no salaries tax in Hong Kong will be levied.

Employees with non-Hong Kong employment who temporarily work outside of Hong Kong will not be subject to salaries tax in Hong Kong for that period (whereas they generally would be for the days they carry out work in Hong Kong).

It should be remembered that liability for salaries tax in Hong Kong falls on the employee, rather than the employer.

Income tax may be payable in host country if certain conditions are satisfied

The starting point is that the host country may have taxing rights over the employment income that the employee earns while physically working in that country.  However, if there is a double taxation treaty (DTT) between Hong Kong and the host country, the employee will be subject to income tax of the host country only if certain conditions are satisfied.

Hong Kong has a DTT with 65 countries/ jurisdictions including its top trading partners – the UK, Japan and France. Hong Kong has also entered into a tax memorandum for the avoidance of double taxation with mainland China, which contains the essential provisions of a DTT.

The DTTs Hong Kong has entered into typically grant taxing rights on employment income to a host country when an employee is present in that host country for 183 days in any 12-month period.  In practice, this means that a short stay abroad in many locations is not going to result in the employee becoming liable for income tax in the host country.

It should be noted that employees who have already spent other periods in the host country in the same 12-month period (e.g. visiting family) may reach the 183-day threshold sooner than you think.  Also, there are conditions other than the physical period of stay which may grant the taxing right of employment income to a host country (e.g. if the remuneration is borne by a permanent establishment of that host county), so the relevant DTT must be checked carefully.

If the employee does become subject to tax in the host country, the same income may still be subject to tax in Hong Kong. In that situation, double tax relief will be available in accordance with the provisions of the DTT.

Pensions implications

Hong Kong does not have a comprehensive social security system like in other countries, but it does have something akin to a statutory pension. Most employers and employees in Hong Kong are required to make contributions to a mandatory provident fund (MPF) which is a regulated privately-managed retirement fund.

Where mandatory contributions are being made to an MPF, arrangement for the employee to work abroad will not affect the contributing obligations of the employer or the employee.  If the employer and employee are exempt from making MPF contributions (for example, where the employee is an expatriate employed in Hong Kong on a work visa for not more than 13 months), working abroad will not affect the exemption.

Risk of creating a permanent establishment is low but should be considered

In some situations, there will be a risk that the employee’s activities or presence in the host country will create a permanent establishment for the employer in that country.  This may be the case if, for example, the employee has a sales or business development role and is habitually exercising an authority to conclude contracts in the name of the employer while in the host country.

If a permanent establishment is created, the profits attributable to that establishment would be subject to corporate tax in that country.  Assuming the working-from-home arrangement is only short term, it would be difficult for the tax authorities to argue that a permanent establishment had been created.  The longer the arrangement continues, however, the greater the risk – particularly if the employee routinely negotiates the terms of contracts with customers which are simply “rubber-stamped” by Hong Kong.

Immigration implications of working temporarily abroad

From an immigration perspective, an employer should take into account whether an employee has the right to work in the relevant jurisdiction when considering whether to allow him/her to work remotely from there.

As an employment visa or similar is generally not required for short business visits, depending on the employee’s activities, it may be possible to characterise the employee’s stay as a business visit. The activities of the employee as a business visitor should, however, be limited to those typically undertaken during business trips (e.g. meetings and training). Restricting an employee’s activities in this way is unlikely to be practical for many employers and their employees, however, and, in general, the longer an employee carries out work in a country, the more difficult it will be to characterise their stay as a business visit. In some countries, work itself is prohibited even if the activities are restricted to those typically undertaken as a business visitor.

Employers may also need to consider any immigration issues that could arise on the employee’s return to Hong Kong. For instance, if the employee has any interest in applying for the right of abode in Hong Kong in the future, he/she should consider whether their absence from Hong Kong may affect their eligibility to do so. Generally, as part of the application process, periods of continuous absence for more than 6 months need to be declared and assessed by the Immigration Department.

Employment law and data privacy implications of working temporarily abroad

Employment law considerations

While it is possible to have a remote working arrangement from a Hong Kong employment law perspective, the employer would need to be cautious as to whether local employment laws and regulations would also apply. These may include minimum wage restrictions, paid annual holidays, statutory maternity/paternity entitlements and rights on termination.

Employers in Hong Kong are subject to both statutory and common law duties in respect of the health and safety of their employees, including a duty to provide and maintain a reasonably safe workplace. Failure to comply with such obligations may expose employers to potential claims. If an employee suffers a personal injury by accident which “arises out of and in the course of employment” (whether he/she is performing his/her duties in Hong Kong or abroad), the employer may be liable to compensate the employee. Employers should also ensure that they comply with any local health and safety requirements.

Transferring data outside of Hong Kong

There are currently no restrictions on the transfer of personal data outside of Hong Kong, as the cross-border transfer restrictions set out in section 33 of the Personal Data (Privacy) Ordinance (“PDPO”) were held back and have not yet come into force. Nevertheless, non-binding best practice guidance published by the Privacy Commissioner encourages compliance with the cross-border transfer restrictions in section 33 of the PDPO, which prohibits the transfer of personal data to a place outside Hong Kong unless at least one condition from a list of conditions is met. One such condition is that “the individual has consented in writing to the transfer”.

Therefore, if it is anticipated that personal data will be transferred outside of Hong Kong, the employer should obtain the data subject’s express, informed and voluntary consent before transferring such data. Employers should also consider the local data privacy laws and check if there are any restrictions on processing and storing personal data that need to be complied with there.

Practical considerations

• Only accept a remote working request for a country/jurisdiction outside of Hong Kong if the employee’s role can be performed effectively and lawfully abroad.

• Consider only approving requests for a short, time-limited duration where the employee’s expected return date is clearly documented.

• Seek local expert’s advice on any tax, immigration, employment, data privacy and health and safety obligations.

• If the employee will be carrying out data processing, check if his/her duties can be performed abroad without contravening data privacy laws in both the host country and Hong Kong.

• Review insurance policies to ensure that the current insurance coverage is sufficient to cover employees who are working abroad.

• Agree and record the terms of any temporary overseas working arrangement in writing to clarify the following:

• The employee will be liable for any additional income taxes which may be charged, and the employee will be responsible for any personal tax declarations in this regard.

• The employment contract remains governed by Hong Kong law.

• The employee is still working solely for the Hong Kong entity.

• If applicable, restrict the employee from carrying out any regulated activities whilst he/she is working abroad.

• The employee takes responsibility for ensuring they have the necessary technology and equipment in place to enable them to work effectively.

If you require any further advice on this subject, please reach out to your usual Lewis Silkin contact.

 

Related Item(s): Immigration law in Hong Kong, Immigration law across APAC, Employment law in Hong Kong, Remote & flexible working, Remote working overseas, Employment law across APAC, Asia Pacific Region

Author(s)/Speaker(s): Kathryn Weaver, Kenneth Leung, Iris Chin, Katy Lee,

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.

Text:

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 applicationjhc,. ?lkgfdfdfgfee 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,

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.

Text:

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.

Text:

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.

Text:

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.

Text:

(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,