This Q&A covers questions raised in our webinar.

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The webinar focused on the major changes to the Skilled Worker route due to come into effect from 4 April 2024.

This session discussed:

• Increases to the general salary thresholds and going rate salary thresholds for the Skilled Worker route
• Changes to the new entrant points option under the Skilled Worker route
• Skilled Worker route changes impacting health and care sector workers, and in particular dependants of carers and senior carers
• The replacement of the Shortage Occupation List with the Immigration Salary List
• The Migration Advisory Committee’s commission to carry out a rapid review of the Graduate route
• Phase-out of physical immigration documents
• Other recent and upcoming updates to UK immigration laws and policy

	Question	Answer
1.	Where can I see the new Skilled Worker Rules?	The updated Immigration Rules will be available online from 4 April 2024. You can view the changes to the Rules in the Statement of Changes in Immigration Rules, HC 590. These only outline the changes being made to the existing Immigration Rules rather than showing what they will look like in full. We are happy to assist with any queries on what the new Rules will be and how to interpret them.
2.	Who is subject to the salary thresholds under transitional arrangements for Skilled Workers?	Anyone already on the Skilled Worker route or who is assigned a CoS before 4 April 2024 (but due to a planned SMS system outage, the deadline to assign a CoS is brought forward to 19:00 BST on 2 April 2024). These workers continue to benefit from the transitional arrangements provided they have continuous permission under the Skilled Worker route when seeking to extend, change employer (unless their occupation is listed Appendix Skilled Occupations, Table 2a because it is below A-level equivalent following reclassification under SOC 2020) or settle before 4 April 2030.
3.	Who is subject to the salary thresholds under the new arrangements for Skilled Workers?	Anyone not subject to a transitional arrangement, who is assigned a CoS on or after 4 April 2024. This includes someone applying for Skilled Worker entry clearance coming to the UK for the first time or someone switching into the Skilled Worker route from within the UK for the first time.
4.	If a Skilled Worker is in the UK already and their visa expires after 4 April 2024, can they use the lower salary thresholds under the transitional arrangements?	Yes, they will be eligible to rely on transitional arrangements provided the conditions at Question 2 above are met. Employers should consider seeking legal advice, if needed, to ensure the correct salary threshold is applied to the Skilled Worker in advance of them making their application.
5.	Once a Skilled Worker has been in the UK for five years, do we need to review their salary and occupation code again before they apply for indefinite leave to remain (to settle) in the UK? Presumably we would need to consider the most up-to-date SOC rates, which means it could be significantly higher due to further inflationary increase etc?	Yes, and the salary threshold applicable may vary for each Skilled Worker in this position. Under the changed Rules, if a Skilled Worker is subject to transitional arrangements (see Question 2 above for further details), they will need to apply by 3 April 2030 and meet the higher of £29,000 or the going rate listed in Table 2 or 2a of the new Appendix Skilled Occupations. Those who cannot rely on transitional arrangements will need to meet the higher of £38,700 or the going rate listed in Table 1 of the new Appendix Skilled Occupations. There are exceptions to the general rule. Between now and when the worker is due to settle, the Home Office may decide to increase the applicable general and/or going rate salary thresholds again. Employers should consider seeking legal advice, if needed, to ensure the correct salary threshold is applied to the Skilled Worker in advance of them making their application.
6.	Is it possible to issue a CoS before an employee on a Student visa completes their course, provided they submit the application for immigration permission within three months? We have an employee who is finishing their course in May and will benefit from the transitional arrangements if their CoS is assigned by 19:00 on 2 April 2024.	All Skilled Worker applicants must ensure they submit their immigration application no more than three months after the date their CoS is assigned. Student visa holders who are applying to switch into the Skilled Worker route from inside the UK must also meet one of the following additional requirements: They must have completed their sponsored course of study; or They must be studying a full-time degree or higher level course at a Student route sponsor with a track record of compliance, and the CoS must have a start date no earlier than their course completion date; or They must be studying a full-time PhD at a Student route sponsor with a track record of compliance, and the CoS must have a start date no earlier than 24 months after the start of the PhD course. If the Student visa holder expects to complete their course in May 2024 it should not present a problem for the CoS to be assigned by 19:00 on 2 April 2024. However, the start date should be carefully selected. This must be no earlier than the course completion date, no more than three months after the immigration application will be submitted, and no more than six months after the date the CoS is assigned.
7.	If someone is already in the UK on a Graduate visa for two years, does this mean they can only apply under the new entrant discount for a further two years?	A person seeking to rely on the new entrant discount is allowed a maximum of four-years with immigration permission as a Skilled Worker, Graduate and/or Tier 2 Migrant. This permission does not need to be continuous to be counted. It is important to carefully calculate the end date of the CoS to ensure the immigration permission that would be granted does not exceed this maximum. The calculation must take into consideration that immigration permission granted under the Skilled Worker route will expire 14 days after the CoS end date.
8.	What would be the current rate for an employee on the Graduate route looking to switch at the end the year?	A Graduate visa holder switching at the end of 2024 cannot make use of the transitional arrangements and will be subject to the new salary thresholds set at the 50th percentile. If relying on the new entrant tradeable points option (Option E), their salary must equal or exceed both £30,960 per year or 70% of the going rate for the occupation code. After that, if they are not eligible to rely upon another tradeable points option that attracts a salary discount, the minimum salary for their extension will be £38,700 or the going rate for the occupation code. As a reminder, it is important to ensure the maximum four-year period allowed for new entrants is calculated correctly. See Question 7 above for further information.
9.	Does the age limit for new entrant include 26 or is it strictly under 26?	It is strictly for anyone under the age of 26 on the date of application.
10.	The going rates for many Skilled Worker occupations are based on a 37.5-hour working week. Can we offer a 35-hour working week if the salary still equates to the relevant going rate, or threshold?	Yes, you can change the number of weekly working hours to lower than 37.5 hours, provided the salary offered is at or above the general threshold or the going rate, whichever is higher. The general threshold cannot  be pro-rated, however the going rate can be pro-rated based on the number of hours the applicant will actually work. For example, if the relevant going rate in Appendix Skilled Occupations is £45,000 for a 37.5-hour week, then the pro-rated going rate figure for a 35-hour week will be £42,000.
11.	For those on a Health & Care worker visa, if the individual is renewing after 4 April 2024, would we need to now meet that new salary, £23,200 if, for example, they were renewing in October?	Eligible Health & Care workers will apply using tradeable points option K. Under this tradeable points option, the salary must equal or exceed both £23,200 per year and the going rate for the occupation code.
12.	What about for those transferring their sponsorship from one employer to another. If after 4 April 2024, would we need to meet the £23,200 for those on the Health and Care visa?	Tradeable points option K will be applied to all eligible Health & Care workers whose CoS is assigned on or after 4 April 2024.
13.	For new entrants, is it the general salary threshold AND the going rate threshold that have to be met, or one or the other?	The requirement is for the salary to equal or exceed both £30,960 per year and 70% of the going rate for the occupation code. The higher threshold must be paid.
14.	We were in the process of deciding whether to apply to become a Skilled Worker sponsor, because we have two Graduate visa holders working for us that we would like to retain. Now it looks like the cost and burden of becoming a sponsor will be too high. Can we terminate their employment contracts with notice at the expiry of their Graduate visas? They knew from the start that we did not have a licence to sponsor, but we did say we would look into obtaining a licence. We made no guarantees.	You should ensure you ask whether the employees may be eligible for, or have obtained, any other type of visa that would enable them to work (e.g. dependant or partner) before proceeding to termination. Termination of employment based on sponsorship considerations (as here) may generate the risk of an indirect race discrimination claim in the employment tribunal. There may also be the risk of an unfair dismissal claim if the employees have the requisite level of continuous service. Whether your decision to terminate is actually indirectly race discriminatory will turn on whether you can persuade a tribunal that your decision to terminate was “objectively justified”. You would be relying on the cost and burden of becoming a sponsor to underpin your justification arguments. Unfortunately, the law in this area is underdeveloped. What little case law we have is not favourable to employers that attempt to run costs-based arguments. The leading case on this topic is old (and long predates the current, costly sponsorship system), but the case and its principles remain binding on tribunals. Accordingly, there is arguably more scope for success in running costs-based arguments than there once was, but absolutely no guarantees of success.
15.	I have an employee who has a wet ink stamp in their passport confirming that they indefinite leave to remain in the UK. How do they apply for a UKVI account?	The Home Office has recently updated its eVisa information guidance. It confirms that if a person has a wet ink stamp in their passport confirming a grant of indefinite leave, they should make a ‘no time limit’ application. Assuming the application is successful, they will get a BRP. Once they have their BRP, they can create their UKVI account. The Home Office plans to stop issuing BRPs before the end of 2024. It is not yet clear what process the Home Office may put in place to set up a UKVI account for individuals who have immigration permission but no BRP by the time BRPs are phased out. On the eVisa information guidance webpage, there is an option to sign up for updates.
16.	How long can an employee on Skilled Worker visa remain in the UK if they don’t qualify for an extension under the transitional salary threshold?	When a Skilled Worker’s sponsorship comes to an end, the sponsor is required to submit a report on the Sponsor Management System within 10 working days of their last day of employment. After the report is made, the Skilled Worker’s immigrations status will be cancelled if, at the time cancellation is considered, the individual has more than 60 days remaining on their immigration permission. Otherwise, it will simply expire. The Home Office will issue a cancellation notice, usually by email or by post to the Skilled Worker’s last known address. The cancellation notice will normally state that the individual’s permission will be cancelled so that it will expire 60 days from the date of the cancellation notice. The individual should either submit a fresh immigration application or leave the UK before their immigration permission expires.

Related Item(s): Immigration

Author(s)/Speaker(s): Andrew Osborne, Supinder Singh Sian, Stephen OFlaherty, Naomi Hanrahan-Soar, Pip Hague,

Attachment: QA for WHIIL webinar 26 March 2024

The Home Office is switching off the Sponsor Management System (SMS) from 19:00 on 2 April 2024 until 9:00 on 4 April 2024. This brings forward the deadline for sponsors to issue Certificates of Sponsorship (CoS) before salary threshold rises take effect for work routes from 4 April 2024.

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Sponsors thought they had until 23:59 on 3 April 2024 to assign a CoS to benefit from a lower minimum salary requirement and other more advantageous provisions available in the current Immigration Rules. This will not be the case.

The Home Office did not contact sponsors directly about this change and instead, included the details of the announcement in an updated version of the Sponsor Guidance.

SMS system outage details

The Sponsor Guidance states that a system outage from 19:00 on 2 April 2024 to 9:00 on 4 April 2024 is necessary for the Home Office to implement forthcoming changes to the Immigration Rules.

During this period, sponsors cannot:

• Apply for a new sponsor licence, apply to add routes to an existing licence, or renew an existing licence;
• Apply for a defined CoS for a Skilled Worker based overseas. Any pending defined CoS applications to the Home Office will be cancelled at 19:00 on 2 April 2024. On or after 9:00 on 4 April 2024, a new defined CoS application can be submitted, but it must meet the eligibility requirements under the new Immigration Rules.
• Apply to increase or renew an allocation of undefined CoS for a Skilled Worker already in the UK or a worker sponsored in another work route. Any pending undefined CoS allocation requests will be cancelled at 19:00 on 2 April 2024. On or after 9:00 on 4 April 2024, a new undefined CoS allocation can be requested, but to be able to use it, the allocated CoS must be completed with details of roles that are eligible for sponsorship under the new Immigration Rules.
• Assign any CoS. More on this below.

Reminder: What is a CoS? A CoS is a digital record containing the details of the role and worker an employer wishes to sponsor. There are two types of CoS. Defined CoS is for Skilled Workers applying for permission to enter the UK from overseas. Undefined CoS are for Skilled Workers applying for permission to stay in the UK and for workers on other work routes, who may be applying to enter or stay in the UK.

Sponsors should ensure a CoS is assigned before 19:00 on 2 April 2024 to benefit from the current Immigration Rules

A worker with a CoS assigned before 19:00 on 2 April 2024 will be able to use this to support a visa application for entry clearance or permission to stay, provided it is used within three months of assignment.

The assigned CoS can refer to the current occupation codes (based on SOC 2010) and current salary thresholds. The worker can use their assigned CoS to submit their visa application after 4 April 2024. The key point is ensuring the CoS is assigned before 19:00 on 2 April 2024.

An undefined CoS that has a status of ‘work in progress’ or ‘ready to go’ before the system outage must be updated so that the role meets the eligibility requirements under the new Immigration Rules. This means using the new occupation codes (based on SOC 2020) and much higher salary thresholds.

For more information about the forthcoming changes to the Immigration Rules coming into force on 4 April 2024, see our previous article.

What actions should sponsors take now?

If you have applications that could be affected due to time running out, please urgently contact a member of our immigration team.

We will be covering the SMS outage and the other upcoming major changes to work routes in our next What’s Happening in Immigration Law session on 26 March 2024. For sign up information, click here.

We will also be doing a deep dive of the Rule changes in our Immigration Law Academy taking place on 16 April 2024. For further information and to book, click here.

Related Item(s): Immigration

Author(s)/Speaker(s): Andrew Osborne, Supinder Singh Sian, Stephen OFlaherty, Naomi Hanrahan-Soar, Pip Hague,

The Migration Advisory Committee (MAC) has been commissioned to make a rapid review of the Graduate route, with its report due to be published by 14 May 2024. Employers should plan for potential restrictions to this route or its abolition.

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The Home Secretary published his commissioning letter to the MAC on 12 March 2024.
The review forms part of the Government’s five-point plan to lower net migration, which suggests the Home Office may look for policy options to restrict the route or close it entirely.

What is the Graduate route?

The Graduate route launched on 1 July 2021. It allows Student visa holders completing an undergraduate, postgraduate or doctoral degree in the UK to stay in the UK for three years post-graduation in the case of PhD students, or for two years in all other cases. The route is unsponsored has generous work rights, only excluding work as a professional sportsperson.

Why is the Graduate route being reviewed?

The Government is keen to understand whether the Graduate route is meeting its intended objectives, which include:

• Attracting and retaining the best and brightest international students;
• Supporting excellence in UK higher education;
• Contributing to meeting the UK’s education exports target; and
• Helping businesses to recruit highly qualified international talent.

The commissioning letter refers to possible concerns having arisen in the following areas:

• The creation of a demand for degrees, and in particular shorter-term Masters degrees, driven by the work opportunity of the Graduate route (both for the main applicant and any permitted partner dependant) rather than the value of the educational qualification; and
• Graduate route migrants subsequently switching into the Skilled Worker route for jobs below graduate level, with the majority being sponsored as carers.

What does the commissioning letter say about the Skilled Worker new entrant criteria?

The letter confirms that there will still be a new entrant points option, with a discounted general salary threshold, but that this will significantly increase from the current threshold. Further details on the new entrant general salary threshold and going rate salary discount are due to be published on 14 March 2024.

What is the scope of the MAC’s rapid review?

The MAC has been asked to work with Sir Steve Smith, the Government’s International Education Champion, to gather evidence and provide analysis that may include:

• Any evidence of abuse of the route, including it not being fit for purpose;
• Who is using the route and which universities they graduated from;
• Demographics and trends for students who access the UK labour market using the Graduate route;
• Identifying the activities carried out by Graduate route users, both during their time on that route and afterwards, and analysing whether they are contributing to the economy; and
• An investigation of whether the Graduate route is undermining or supporting the integrity and quality of the UK higher education system in the context of the Government’s wider International Education Strategy and broader Government economic and soft power objectives.

How has the MAC responded to the commission?

The MAC has accepted the commission and noted the following:

• The quality and quantity of evidence they can provide in response to the commission will be substantially limited due to the short timeframe they have been asked to produce their report within; and
• The MAC will not be able to conduct a Call for Evidence from stakeholders.

To assist with answering the questions posed by the Home Secretary, the MAC has asked the Home Office to provide the following data on Graduate route migrants by 26 March 2024:

• Home Office data on all Graduate route participants since the route opened, linked to the Confirmation of Acceptance for Studies from their Student permission;
• Home Office data on all Graduate route participants since the route opened, linked to any visas they have since moved onto, including employment information where relevant; and
• Home Office visa data linked to HMRC records, to enable the MAC to analyse whether Graduate route participants are in work, and what types of role they are occupying.

The publication of the MAC’s report will be delayed if the information is not provided by the deadline indicated.

What are the next steps after the rapid review report is published?

After the report is published, Home Office will consider the MAC’s findings and make changes to the Immigration Rules for the Graduate route.

Since concerns have been raised about whether the route is meeting its intended objectives and the Government is more broadly seeking ways to reduce net migration, it would seem likely that the Rules changes may place additional restrictions on the use of the route (potentially limiting it to graduates from specific institutions for example). The route could also be abolished entirely, as happened with the previous Tier 1 (Post-Study Work) route.

The report has been requested for delivery on a short time-frame, which would suggest the Home Office may bring forward changes in the second half of 2024, perhaps either mid-year or in the Autumn Immigration Rules update.

What are the implications of the review for employers?

Depending on the nature of the resulting Immigration Rules changes, it may be the case that employers will have more restricted access to Graduate route workers, and potentially no access in the future if the route is abolished. Talent pipelines may need to be reviewed to consider whether it is desirable and feasible to sponsor Student route workers directly after graduation.

We will provide a further update once the MAC’s review has been published. If you have any queries about this topic, please contact a member of our Immigration Team.

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

This is the biggest reform of UK work routes since Brexit. The clear message from Government is that net migration must be reduced. Most changes affect Skilled Workers and come into force on 4 April 2024, however other work routes are also affected.

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The Statement of Changes in Immigration Rules HC 590 was published on 14 March 2024.
This is one of a package of measures designed to restrict who can come to the UK. Other reforms are due to be implemented during 2024 and into early 2025. See our previous article for a timeline of these.

Below is a summary of the key takeaways for employers.

Skilled Worker route changes

Sweeping changes are made to the Skilled Worker route, including:

• Increases to the general salary thresholds for the various tradeable points options, and the addition of tradeable points options to cover individuals under transitional arrangements (see further details in the table below);
• Increases to the occupation-related going salary rates, from the 25th percentile to the 50th percentile (median), with limited exceptions for national pay scale occupations and Health and Care occupations not on a national pay scale;
• Updates to the going salary rates for occupations on a national pay scale and Health and Care occupations not on a national pay scale – these are in line with the latest data from the Office for National Statistics and/or the latest national pay scale data;
• Updates to occupation coding updated to align with SOC 2020 instead of SOC 2010, including an additional table being added to Appendix Skilled Occupations to enable individuals in deleted occupation codes to be able to extend or settle in the UK;
• Replacement of the Shortage Occupation List (SOL) with a new Immigration Salary List (ISL), including not having a 20% going rate discount for occupations on the ISL;
• Significant expansion of supplementary employment permission; and
• Introduction of Health and Care visa criteria into the Immigration Rules that are currently contained in a separate policy document outside the Rules (with no change to the criteria aside from occupation coding being aligned to SOC 2020 instead of SOC 2010).

The points options for new entrants and holders of relevant PhDs remain in place, with the same percentage discounts on the general threshold and going salary rates as currently. The salary requirements for these groups are however substantially increased because the of the magnitude of the increases to the main general threshold and the move in occupation-related going rates from the 25th percentile to the 50th.

Transitional arrangements apply until 3 April 2030 for Skilled Workers whose Certificate of Sponsorship is assigned before 4 April 2024 and who have maintained continuity of permission as a Skilled Worker since that time.

Further details of the changes are outlined below.

Increases to salary thresholds

The increases to the salary thresholds for Skilled Worker points options are set out below.

20 tradeable points are awarded for a salary that equals or exceeds both the general salary threshold or the going rate, whichever is higher. Under the new Rules, the going rate means the higher of the rate shown in the 50th percentile or £15.88 per hour. For those subject to transitional arrangements, the going rate means the higher of the rate shown in the 25th percentile or £11.90 per hour.

Points option	New salary thresholds	Points option	Transitional salary thresholds
A	Salary equals or exceeds both: £38,700 per year (up from £26,200); and The going rate for the occupation code in the 50th percentile (up from 25th percentile) based on SOC 2020 (instead of SOC 2010).	F	Salary equals or exceeds both: £29,000 per year (up from £26,200); and The going rate for the occupation code in the 25th percentile (the same percentile in place currently) based on SOC 2020 (instead of SOC 2010).
B	PhD in a subject relevant to the job and salary equals or exceeds both: £34,830 per year (up from £23,580); and 90% of the going rate for the occupation code in the 50th percentile (up from 25th percentile) based on SOC 2020 (instead of SOC 2010).	G	PhD in a subject relevant to the job and salary equals or exceeds both: £26,100 per year (up from £23,580); and 90% of the going rate for the occupation code in the 25th percentile (the same percentile in place currently) based on SOC 2020 (instead of SOC 2010).
C	PhD in a STEM subject relevant to the job and salary equals or exceeds both: £30,960 per year (up from £20,960); and 80% of the going rate for the occupation code in the 50th percentile (up from 25th percentile) based on SOC 2020 (instead of SOC 2010).	H	PhD in a STEM subject relevant to the job and their salary equals or exceeds both: £23,200 per year (up from £20,960); and 80% of the going rate for the occupation code in the 25th percentile (the same percentile in place currently) based on SOC 2020 (instead of SOC 2010).
D	Job is on the Immigration Salary List (formerly Shortage Occupation List) and salary equals or exceeds both: • £30,960 per year (up from £20,960); and • The going rate for the occupation code in the 50th percentile (up from 25th percentile) based on SOC 2020 (instead of SOC 2010). Note that a going rate discount is not applicable for this option.	I	Job is on the Immigration Salary List (formerly Shortage Occupation List) and salary equals or exceeds both: £23,200 per year (up from £20,960); and The going rate for the occupation code in the 25th percentile (the same percentile in place currently) based on SOC 2020 (instead of SOC 2010).
E	Applicant is new entrant at the start of their career and their salary equals or exceeds both: £30,960 per year (up from £20,960); and 70% of the going rate for the occupation code in the 50th percentile (up from 25th percentile) based on SOC 2020 (instead of SOC 2010).	J	Applicant is a new entrant at the start of their career and their salary equals or exceeds both: £23,200 per year (up from £20,960); and 70% of the going rate for the occupation code in the 25th percentile (the same percentile in place currently) based on SOC 2020 (instead of SOC 2010).
		K	Job is in a listed health or education occupation and salary equals or exceeds both of: £23,200 per year (up from £20,960); and The going rate for the occupation code in the 25th percentile (the same percentile in place currently). As mentioned, the going rates for Health and Care occupations not on a national pay scale and occupations on a national pay scale are in line with the latest data from the Office for National Statistics and/or the latest national pay scale data.

Supplementary employment

Skilled Workers are allowed to undertake limited supplementary employment, provided they remain working for their sponsor in their sponsored role. The employment must be outside their contracted working hours and for no more than 20 hours a week.

Currently, the employment must either be in the same occupation and at the same professional level as the sponsored role, or in an occupation on the Shortage Occupation List.

An amendment is made to allow supplementary employment for Skilled Workers to be in any occupation that is eligible for the Skilled Worker route. This is a significant and unexpected liberalisation from the current position and may mean that more Skilled Workers consider taking up supplementary employment. Employers should take care that adequate documentation is maintained for any workers carrying out supplementary employment with them – see our earlier article here for further information on this.

Note that this liberalisation does not apply to other sponsored workers to whom the supplementary employment condition applies – see the further section on supplementary employment in other work routes below.

Transitional arrangements for the Skilled Worker route

Transitional arrangements apply to those with existing permission in the route and to those who make an initial application with a Certificate of Sponsorship assigned before 4 April 2024, even if the application itself is made after this date.

For those who are covered under the transitional arrangements, a general threshold based on the 25^th percentile will apply, but it increases for individuals with CoS assigned on or after 4 April from £26,200 to £29,000. This is to account for inflation.

New tradeable points options F to K apply to Skilled Workers subject to transitional arrangements. Going rate salaries are adjusted to align with the most recent salary data in accordance with ASHE 2023 (instead of ASHE 2021). As the UK is in a period of inflation, these salaries are in most cases still significantly higher than currently.

A Skilled Worker applicant subject to transitional arrangements applying to settle in the UK must be paid at least £29,000 or the going rate (set at the 25^th percentile under tradeable points option F), whichever is higher.

Transitional arrangements remain in place until 3 April 2030, provided that an individual seeking to rely on them continues to maintain continuous status under the Skilled Worker route. Short overstays covered by paragraph 39E of the Immigration Rules will be ignored. Applicants should ensure that they submit applications to extend, change employment or settle in the UK before 4 April 2030. Applications submitted after this date will be subject to the new salary requirements.

Changes to other work routes

Supplementary employment in work routes other than Skilled Worker

Where a worker is allowed to undertake supplementary employment, this will now only be allowed if the occupation is on the Immigration Salary List or is in the same profession and at the same professional level as the job they are being sponsored for. This is a significant restriction from the current position, since more occupations are on the Shortage Occupation List than will be on the Immigration Salary List. For further information, see our previous article here.

SOC code updates

The switch to SOC 2020 occupation coding affects all work routes.

Individuals in deleted occupation codes will be able to extend under their existing SOC 2010 code.

Global Business Mobility: Senior or Specialist Worker and UK Expansion Worker routes

The following changes are made:

• The general salary threshold is increased from £45,800 to £48,500;
• The going salary rates remain at the 25^th percentile, but are updated in line with ASHE 2023.

  The High Earner threshold for these routes remains at £73,900.

  Transitional arrangements apply until 3 April 2030 where an individual is already sponsored in these routes or makes their initial application with a certificate of sponsorship assigned before 4 April 2024. They work in a similar way as for the Skilled Worker route, except that individuals in these routes will not use them to change employer or settle.

  Global Business Mobility: Graduate Trainee route

  The following changes are made affecting individuals with a certificate of sponsorship assigned on or after 4 April 2024:

• The general salary threshold is increased from £24,220 to £25,410;
• The going salary rates remain at 70% the 25^th percentile, but are updated in line with ASHE 2023.

Creative Worker route

A redundant reference is being removed regarding an exemption from resident labour market testing where the occupation is on the Shortage Occupation List. This is because the current system does not require resident labour market testing. A requirement is however introduced to demonstrate that the Creative Worker will be making a unique contribution to creative life in the UK.

The Home Office has rejected the Migration Advisory Committee’s recommendation to apply a minimum salary threshold is applied to this route so that it cannot be used to pay lower salaries than under the Skilled Worker route.

Scale-up route

The general salary threshold for this route was originally designed to be higher than the Skilled Worker general thresholds. It is updated from £34,600 to £36,300, meaning it will now be lower than the main Skilled Worker general threshold of £38,700.

Transitional arrangements are available for those whose certificate of sponsorship was assigned between 12 April 2023 and 3 April 2024. They will continue to be able to extend or settle provided their salary is £34,600 or more per year.

Seasonal Worker route

For certain poultry workers who are paid in line with the Skilled Work route, the salary threshold is raised from £26,200 to £38,700 and the hourly rate from £10.75 to £15.88.

The minimum hourly rate of pay for this route is increased to £10.42 to £11.44, in line with increases to the National Minimum Wage and National Living Wage.

Partner route changes

The Partner route includes permission to work. The minimum income requirement to qualify under this route is being increased from £18,600 for the main applicant to £29,000. The requirement to have additional income for children is removed. The threshold above which savings may count towards meeting the minimum income requirement remains at £16,000.

The changes to the Partner route take effect for applications made on or after 11 April 2024. Transitional arrangements are made for individuals who have made their first (successful) application as a fiancé(e), proposed civil partner or partner before 11 April 2024. They must meet the current financial requirements.

More restricted work permission for asylum seekers

The Rules confirm that from 4 April 2024 asylum seekers may only request permission to work in occupations included on the Immigration Salary List. This is a significant further restriction on the current position, where permission may be sought to work in an occupation on the Shortage Occupation List. It is contrary to the MAC’s October 2023 recommendation that asylum seekers who are allowed to seek permission to work should be able to work in any job.

What actions should employers take now?

Employers should urgently review potential applicants and assign CoS where possible before 4 April 2024. It is important for employers to act as soon as possible, particularly in view of ongoing processing delays that could slow down preliminary steps such as obtaining a certificate of sponsorship. For more information and top tips, see our previous article.

We will continue to monitor for further details and provide updates in this area. We will also be covering these changes in our next What’s Happening in Immigration Law session on 26 March. For sign up information, click here.

If you have any queries about this update or need assistance with a work route application, please contact a member of our immigration team.

Related Item(s): Immigration

Author(s)/Speaker(s): Andrew Osborne, Supinder Singh Sian, Stephen OFlaherty, Naomi Hanrahan-Soar, Kathryn Denyer, Pip Hague,

From 4 April 2024 many people who would qualify now, will not be able to get a Skilled Worker visa. Hefty increases to the occupation-based ‘going rate’ salary thresholds and the new general salary threshold of £38,700 will impact a vast number of would-be applicants. Employers should urgently review potential applicants to submit applications now and avoid disappointment in the near future.

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The full extent of salary changes to work routes and the extent of transitional arrangements will only be confirmed once new Immigration Rules are published on 14 March 2024. However, the clear message from Government is that net migration must be reduced and these salary increases are one heavy hammered approach to doing so.

Employers should urgently review the immigration position of their existing workforce, as well as new hires in the pipeline. Many employees may be intending to apply for extensions within the Skilled Worker category or switches into it from other categories and will no longer be able to do so if they leave it until after 3 April 2024. It is therefore important to assess whether potentially affected individuals could apply before the changes. Employers may also want to consider assisting those currently eligible under the Partner route, where similar salary increases could affect their continuity of employment as well.

Questions to ask include:

• Will the employee still meet the minimum salary requirement after the changes? Anyone on the following visas should be assessed:
  • Student
  • Graduate
  • Ukraine Scheme
  • Senior or Specialist Worker
  • Graduate Trainee
  • Dependant
  • Youth Mobility
  • Spouse, partner, family route visa holders

• Should new hires or assignments under the Creative Worker, Senior or Specialist Worker, Graduate Trainee or UK Expansion Worker routes be brought forward?
• Will a worker who is eligible to apply under the Partner route still be eligible after the minimum income requirement is raised to £29,000 on 11 April 2024, or £34,500 later in 2024?
• Should a worker who is a carer or senior carer be sponsored before 11 March 2024 if they wish to be accompanied or joined by dependants?
  • Should the business consider becoming a sponsor under the Scale-up route if eligible?

It is important for employers to act as soon as possible, particularly in view of ongoing processing delays that could slow down preliminary steps such as obtaining a certificate of sponsorship.

Substantial rises to going rates for Skilled Worker route occupations

It has been widely publicised that the general salary threshold for new applicants to the Skilled Worker route will rise from £26,200 to £38,700. In addition, sponsors should also note the following changes to the ‘going rate’ thresholds will apply for each eligible occupation (as dictated by its Standard Occupation Classification (SOC) code):

• The going rates will rise from the 25th percentile to the 50th percentile (median) of the salary range for each occupation;
• The salary ranges will be adjusted for inflation; and
• The SOC codes for each occupation will be updated to align with SOC 2020 instead of SOC 2010.

It is anticipated that the going rate thresholds for individuals who are already on the Skilled Worker route will remain at the 25th percentile due to transitional arrangements, however the current going rates will be updated to SOC 2020 coding and adjusted for inflation using ASHE 2023 data.

Some examples of the anticipated salary changes for commonly used SOC codes are included below.

SOC code (SOC 2010)	SOC code (SOC 2020)	Current going rate per year (GBP)	Estimated going rate per year for new Skilled Workers not covered by transitional arrangements (50th percentile, GBP)	Estimated going rate per year for existing Skilled Workers covered by transitional arrangements (25th percentile, GBP)
2135 IT business analysts, architects and system designers	2133 IT business analysts, architects and system designers	30,080	51,698	39,328
2136 Programmers and software development professionals	2134 Programmers and software development professionals	27,200	49,430	36,296
2139 Information technology and telecommunications professionals not elsewhere classified	2139 Information technology professionals not elsewhere classified	25,680	44,244	31,559
2413 Solicitors	2412 Solicitors and lawyers	33,700	52,296	37,733
2419 Legal professionals not elsewhere classified	2419 Legal professionals not elsewhere classified	52,100	29,571	23,540
2421 Chartered and certified accountants	2421 Chartered and certified accountants	31,300	46,847	33,905
3520 Legal associate professionals	3520 Legal associate professionals	21,500	29,965	24,333
3534 Finance and investment analysts and advisers	2422 Finance and investment analysts and advisers	28,600	40,629	32,141
3538 Financial accounts managers	3534 Financial accounts managers	29,800	41,622	32,549
3545 Sales accounts and business development managers	3556 Sales accounts and business development managers	35,100	52,495	39,093

Groups of worker likely to be most heavily affected by the Skilled Worker route changes

The increases to the salary thresholds will affect all Skilled Worker applicants and are likely to be most challenging for smaller businesses and businesses operating outside of the South East of England. There are also particular issues for certain groups of applicant, some which are outlined below.

New entrants and workers early in their career

The Home Office’s intended policy on this group of workers is still not clear, however the rise in going rates from the 25th percentile to the 50th means that workers who are earlier in their career are less likely to be eligible for sponsorship unless they meet the new entrant criteria.

In their report on the rapid review of the Immigration Salary List (which will replace the current Shortage Occupation List), the Migration Advisory Committee (MAC) has also encouraged the Home Office to consider the impact of the salary threshold increases on use of the new entrant points option. The MAC’s concern is that the existing 20% general salary threshold and 30% going rate discount may act as an incentive for employers to use this points option to fill vacancies that would otherwise be unaffordable to sponsor.

We have previously highlighted some of the policy issues relating to the new entrant points option. In particular, it may not be viable to increase a relatively junior employee’s salary to meet the full salary thresholds once they are no longer eligible for points under the new entrant criteria.

Sponsors wishing to use the new entrant points option in its current form should do so without delay, for example for sponsoring eligible Student or Graduate route switchers.

Ukraine Scheme participants

The Home Office has recently reconfirmed that the Ukraine Schemes are intended as a temporary protection route. Although a further 18-month extension will be made available from early 2025, these routes are not intended to lead to settlement.

Some scheme participants who wish to settle may currently qualify under the existing Skilled Worker salary thresholds but may not continue to qualify once the thresholds are raised.

For further information on recent changes and updates to the Ukraine Schemes, see our earlier article here.

Care workers

Health and care workers will not be subject to the full £38,700 general threshold due to exemptions for workers eligible under the Health and Care visa and/or occupations anticipated to be included on the new Immigration Salary List.

However, where a carer or senior carer’s first sponsored work application is submitted on or after 11 March 2024, they will not be eligible to be accompanied by dependants. Workers with families may therefore wish to apply before this takes effect. For further information on this change, see our earlier article here.

Individuals eligible for the Partner route

Some workers with limited immigration permission who are currently eligible for the Partner route may cease to be once the minimum income requirement is increased from £18,600 to £29,000 from 11 April 2024. A further increase to £34,000 is scheduled for later in 2024 and another increase to £38,700 in early 2025.

These employees will likely be equally ineligible for sponsorship under the Skilled Worker accordingly.

Potential knock-on adjustments to other work routes

Although no specific announcements have been made by the Government regarding the salary thresholds for other work routes, these are likely to be adjusted to avoid displacement of applications from the Skilled Worker route into other routes and to reflect recent inflation.

Creative Worker route

The Migration Advisory Committee (MAC) has flagged that currently the Creative Worker route does not operate a minimum salary threshold. The MAC has recommended that a minimum salary threshold is applied to this route so that it cannot be used to pay lower salaries than under the Skilled Worker route.

Senior and Specialist Worker, UK Expansion Worker and Graduate Trainee routes

These routes are underpinned by the UK’s commitments to facilitate temporary intra-corporate mobility under the General Agreement on Trades and Tariffs (GATS). It is not yet clear whether the Home Office will continue to use the 25th percentile going rates for these routes, or if it will be considered appropriate to lift these to the 50th percentile.

There is also the possibility that the following thresholds may be lifted:

• General salary threshold for Senior or Specialist Workers and UK Expansion Workers (currently £45,800);
• General salary threshold for Graduate Trainees (currently £24,200); and/or
• The High Earner threshold for Senior or Specialist Workers and UK Expansion Workers (currently £73,900).

Scale-up route

This route was introduced in on 22 August 2022 and the general salary threshold for it was increased from £33,000 to £34,600 on 11 April 2023. The general salary threshold for this route was originally designed to be higher than the Skilled Worker general thresholds, so it is possible it may be further revised along with other April 2024 Immigration Rule changes.

No specific review of the Scale-up route has been announced. However, the Home Office previously confirmed when it was launched that it would be monitored for general trends in usage and effectiveness. It is therefore possible that a review could be carried out in the short to medium-term, depending on observed trends and Home Office priorities.

We will continue to monitor developments and provide updates in this area. If you have any queries about this update or need assistance with a work route application, please contact a member of our immigration team.

Related Item(s): Immigration

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

New Immigration Rules laid on 19 February 2024 have made immediate changes to the Ukraine Schemes, including closing the Ukraine Family Scheme. A separate announcement reconfirms that the Ukraine Schemes do not lead to settlement, but that an 18-month extension will be available for scheme participants from early 2025. Participants wishing to settle in the UK should urgently review their options ahead of restrictions to work and partner routes being implemented in March and April 2024.

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Statement of Changes in Immigration Rules HC 556 signals a more restrictive approach to the immigration provisions for Ukrainian citizens and their family members, against the backdrop of a renewed UK government commitment to reduce net migration and the Ukraine government’s wish for its citizens to return to the country when it is safe to do so.

What immediate changes have been made to the Ukraine Schemes?

The new Immigration Rules confirm that from 15:00 GMT on 19 February 2024:

• The Ukraine Family Scheme has been closed to new applicants, leaving only the Homes for Ukraine Sponsorship Scheme and the Ukraine Extension Scheme currently open;
• Additional grounds for refusal will be applied to Ukraine Scheme applicants, including previously breaching UK immigration laws or failing to provide required information etc.; and
• A grant of permission under the Homes for Ukraine Sponsorship Scheme is now for 18 months instead of 36 months.

The Ukraine Extension Scheme is due to close from 16 May 2024. However, the new Rules confirm that a child born in the UK after 18 March 2022 to a Ukraine Scheme participant will continue to be able to make an application under the Extension Scheme after this date. They will have immigration permission granted in line with their parent(s).

Separately, the Government has confirmed that a sponsor under the Homes for Ukraine Sponsorship Scheme now must be a British or Irish citizen, or settled in the UK. Previously, any person holding at least six months’ UK immigration permission at the date of the visa application could act as a sponsor.

What has been announced on extension of permission under the Ukraine Schemes?

A Government news story published on 19 February 2024 states that from early 2025, existing Ukraine Scheme participants will begin to be able to apply to the new Ukraine Permission Extension Scheme. Individuals who have permission outside the Rules because they required sanctuary in the UK will be able to apply. Extension applications should be made within three months of the existing permission expiring.

Further details of the scheme will be made available in the coming months, however it is already confirmed that successful applicants will be issued with permission to stay in the UK for a further 18 months, with the same access rights to work, benefits, healthcare and education as their current permission.

The news story also reconfirms the UK Government’s position that the Ukraine Schemes are a temporary protection route. They are not intended to lead to settlement in the UK.

Why should Ukraine Scheme participants act now if they wish to settle in the UK?

Over half of respondents to a recent survey carried out by the Office for National Statistics have indicated they would wish to remain in the UK even if Ukraine becomes safe to return to.

Ukraine Scheme participants currently have immigration permission that is not due to expire until March 2025 at the earliest. It is a free scheme, and it is possible the Government’s position on settlement may change in the future.

However, participants who wish to settle in the UK should consider urgently reviewing their immigration options if they have not already done so. This is because:

• Restrictions due in March and April 2024 to work and partner routes mean that some individuals who are currently eligible to apply may no longer be once the changes come into effect; and
• Time spent under the Ukraine Schemes does not currently count towards the five-year qualifying period required for settlement under work routes or the five or ten-year qualifying period required for settlement under the partner route.

If you have any queries about this topic, please contact a member of our Immigration Team.

Related Item(s): Immigration

Author(s)/Speaker(s): Stephen OFlaherty, Clara Le Chevallier, Kathryn Denyer,

From 11 March 2024 care providers in England cannot sponsor new care workers under the Skilled Worker route unless they are registered with the Care Quality Commission. From the same date, newly sponsored carers can no longer bring their family members to the UK.

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The changes were published on 19 February 2024 in Statement of changes to the Immigration Rules: HC 556.

These measures implement the first part of the government’s ‘five-point plan’ to reduce net migration. For more information, read our previous articles, What’s happening in UK immigration law in 2024? and the timeline for immigration reforms.

English care providers must be registered with the Care Quality Commission

From 11 March 2024, sponsor licence holders in the care sector in England must be registered with the CQC if they carry out regulated activities. This will significantly limit the ability of care home businesses to sponsor care workers or senior care workers (occupation codes 6145 and 6146). The explanatory memorandum to the new Rules states this is in response to ‘high levels of non-compliance and worker exploitation and abuse, as well as unsustainable levels of demand’.

The restrictions are set out as descriptions to the standard occupational classification (SOC) codes 6145 and 6146 in Appendix Skilled Occupations and Appendix Shortage Occupation List.

The new requirement applies to England only, it does not affect the eligibility of jobs in Scotland, Wales and Northern Ireland.

Care providers such as care homes in England must be registered with the Care Quality Commission (CQC) if they are undertaking a regulated activity.

Existing care providers sponsoring workers in exclusively non-regulated activities are not required to register with the CQC and some may be exempt from the requirement to register. They may continue to sponsor these workers and support applications to extend their permission to stay in the UK. They cannot sponsor new care workers without registering with the CQC.

Care providers who are not currently registered with the CQC, who rely on a recruitment talent pool from overseas, may wish to consider changing their business model to apply for registration. It may be appropriate to obtain professional advice and support with the CQC registration process, which is lengthy and time-consuming.

Sponsors in the care sector are at an increased risk of sponsor compliance action

In an impact estimate published in December 2023, the Home Office reviewed visa application data for carers and senior carers between January and June 2023 by cross-checking the sponsoring organisation’s name against the published register of CQC-regulated providers. The assessment identified that 22% of care and senior care workers were sponsored by employers who were not listed on the CQC register.

The Home Office is not expecting a surge in CQC registrations given that care providers undertaking regulated activities in England should already be registered. However, because sponsor compliance includes complying with UK laws, it would seem likely that the Home Office may seek to verify that non-CQC-registered sponsors of carers are not required to be.

More generally, as abuse of the sponsorship regime and sponsored workers has been identified in the care sector, sponsors can expect to continue to receive heightened scrutiny from the Home Office’s sponsor compliance team, including compliance audits and sponsor compliance action.

Newly-sponsored carers will be banned from bringing family members to the UK

Care workers in SOC codes 6145 or 6146 who submit a Skilled Worker visa application on or after 11 March 2024 will be ineligible to be accompanied by their partner and children (aged under 18 at the time they make their first application as a dependant).

Care workers who are already sponsored, or who make their application before 11 March 2024 can:

• Continue in their sponsored role and continue to reside in their UK;
• Have any eligible dependant family members accompany or join them in the UK;
• Apply to extend their permission with their existing sponsor even if their existing sponsor does not register with the CQC; and
• Apply to settle in the UK whilst sponsored with their existing sponsor even if their existing sponsor does not register with the CQC.

Care workers who are already sponsored, or who make their application before 11 March 2024 cannot:

• Change employer without their new sponsor being registered the CQC, but if they do change employer, their dependent family members can continue to accompany them or join them in the UK.

Are the new rules fit for purpose?

The new sponsorship rules are designed to better protect care workers in England by ensuring they are working for an employer under the supervision of the independent regulator of health and social care in England.

That said, the new rules have the potential to trap some sponsored care workers in existing employment with non-CQC registered sponsors, unless sponsorship is readily available with a CQC-registered employer.

Regarding the prohibition on accompanying dependants, the Home Secretary has stated the Government anticipates that workers without family commitments will still be willing to put themselves forward following the change coming into effect. In reality however, workers with families are still likely also to put themselves forward where they feel the opportunity is worth the separation.

Concerns have already been raised by unions and others that the policy may have significant detriments. The rates of pay in the care sector are low, and partners accompanying a care worker are able to assist with raising living standards by supplementing household income. Some partners also work in the care sector, assisting to alleviate skills shortages. Accompanying family members also provide emotional support to workers who have been identified as potentially vulnerable.

The Home Office should consider making an early review of the policy, including factors such as the following:

• Whether the policy exacerbates skills shortages in the care sector, either through reducing the number of workers willing to relocate to the UK, increasing the cost to care providers of needing to sponsor workers currently recruited as partner dependants, or both;
• Whether the policy has the effect of separating families, and what the consequences of this are;
• Whether carers who are not accompanied by family members are at increased risk of exploitation due to isolation and increased financial pressure; and
• Whether there are significant impacts on carers’ mental health and wellbeing due to isolation or family separation.

If you have any queries about this update, please contact a member of our immigration team.

Related Item(s): Immigration

Author(s)/Speaker(s): Naomi Hanrahan-Soar, Abi Adetifa, Pip Hague,

The Home Office recently updated the Employer’s guide to right to work checks. The guide contains references to the increased £60,000 civil penalty for illegal working, along with some small but significant changes that impact how employers complete compliant right to work checks. In this article, we highlight the key changes to help employers stay on top of right to work compliance.

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The Employer’s guide to right to work checks (Employer’s guide) was updated on 8 February 2024. It applies to right to work checks completed on or after 13 February 2024.

The maximum civil penalty is now up to £60,000 per illegal worker

Any employer issued with a penalty notice on or after 13 February 2024 is subject to a maximum £45,000 civil penalty being imposed for a first breach of the scheme and a maximum of £60,000 per illegal worker for repeat breaches. The increased penalty will not apply if the illegal working identified in the notice ended on or before 12 February 2024. See our earlier article here for further information on this change.

Advice for employers on reporting illegal working

The guide now includes the following information on how to report illegal working identified during a follow-up right to work check:

“In the event a follow-up check confirms an employee is working illegally in your workforce, you are advised to take steps to terminate employment and report the circumstances to the Home Office via the UKVI Helpline on 0300 790 6268 select the employer’s option, Monday to Friday (excluding bank holidays), 8am to 8pm Saturday and Sunday, 9:30am to 4:30pm. You must state that you are reporting illegal working in your workforce and request a Unique Reference Number (URN).”

This advice is aimed at assisting employers to meet one of the mitigating factors that are relevant for calculating the level of civil penalty imposed for illegal working. However, in the context of a repeat right to work check, the employer will have a statutory excuse against liability for a civil penalty until the expiry date of the document they previously checked using a compliant right to work check process.

Provided the employer carries out the follow-up check before the existing statutory excuse expires, they should continue to be covered by it. However, prompt action may need to be taken to ensure the illegal working does not subsist beyond the expiry of the current statutory excuse, and to avoid the potential criminal sanction for knowingly employing an illegal worker.

Also, the guidance glosses over the reality that establishing whether an employee is working illegally can be complex. Where an employee cannot complete a follow-up right to work check in a straightforward way, we would suggest the employer considers taking immigration and employment advice before taking steps to terminate employment or contacting the Home Office.

Additional guidance for employers on the supplementary employment condition

Annex B to the Employer’s guide now also contains useful expanded guidance for employers on supplementary employment, including the following:

• Identifying which sponsored work routes, other than Skilled Worker, that the supplementary employment condition applies to;

• Summarising the requirements of employing someone under the auspices of the condition;

• Providing suggestions on how an employer can ensure the requirement applies and will not be breached, including:

• Ensuring a right to work check is conducted that confirms the supplementary employment condition applies to the individual;

• Verifying the supplementary employment conditions are met, such as obtaining a letter or other evidence from the individual’s sponsor confirming they are still employed, what their job description and sponsored occupation code is (only if the additional job is not in a shortage occupation) and their normal working hours; and

• Asking the individual if they are doing any other supplementary employment to ensure they will not do more than 20 hours a week in total.

The Employer’s guide now also states that if overtime is performed with the same employer and in the same employment as on the worker’s Certificate of Sponsorship, this will not be considered supplementary employment. However, the employer must comply with the Working Time Regulations and meet the relevant salary criteria of the route on which the worker is being sponsored.

Employers should consider taking advice on how overtime may impact immigration compliance for their sponsored workers, as this can depend on contract wording and compliance with applicable employment laws. Some general pointers in this area are as follows:

• Sponsored workers’ standard full-time contracted hours (or part-time equivalent) should be similar to those for non-sponsored workers in the same role;

• Employers should be cautious about expecting or requiring sponsored workers to work above their contracted hours, particularly if this happens regularly and is a significant amount compared to basic hours; and

• Employers should ensure that National Minimum Wage and working time requirements are met regarding any overtime carried out.

Updated right to work check processes for the EU Settlement Scheme

Last year, we saw a flurry of adjustments to the EU Settlement Scheme including major changes to policies on pre-settled status extensions, late applications and ongoing right to work considerations. For details of these changes and their impact on employers, see our previous article, Three reasons the EU Settlement Scheme is still relevant for employers. Although the previous wording in the Employer’s guide reflected these changes, it has been reviewed in the new version.

An employer can no longer signpost an individual without lawful immigration status to make an application to the EUSS and must take ‘appropriate action’

Previously if an employer discovered that an individual engaged prior to 30 June 2021 did not have lawful immigration status, they could signpost them to make an application to the EU Settlement Scheme within 28 days (provided they could show they had reasonable grounds for making a late application). The employer could then verify the CoA using the ECS.

The Employer’s guide has removed this provision. An employer is now required to ‘take appropriate action’, such as contacting the Home Office for support or taking steps to terminate employment.

Although the Employer’s guide no longer states that a person with a CoA is eligible to work, the position should remain that they eligible to work provided the CoA is verified using the online service.

Automatic extension of permission for pre-settled status holders

Employers are still required to complete a repeat right to work check for individuals with pre-settled status and should do so within one to two months before the expiry date of their permission.

Previously the Employer’s guide stated that from September 2023, pre-settled status extensions would have a two-year duration. The reference to two years has been removed, which may be because during 2024 the Home Office intends to automatically convert individuals to settled status where eligible. Once the Home Office starts doing this, at a repeat check (which the Home Office recommends doing within a month of the pre-settled status expiry) the individual’s online profile will show they no longer have an expiry date for their permission.

Threat of cancellation or shortening of status for pre-settled status holders

The guidance emphasises that pre-settled status may be cancelled if a person no longer meets, or never met, the requirements for it. The previous version of the Employer’s guide did not cover the situation where the person never met the requirements.

Employers should be alive to the possibility that an employee served with a notice of cancellation will lose their right to work within the timeframe stated on the notice. In certain circumstances, permission can be cancelled with immediate effect, but normally will be 60 days from the date of the notice.

Right to work check requirements can feel complicated because there are different requirements for different types of right to work. We have a handy right to work guide which provides a breakdown of these to aid employers as well as offering training and mock audits.

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

Related Item(s): Immigration, Employment

Author(s)/Speaker(s): Supinder Singh Sian, Despina Stoimenidi, Kathryn Denyer, Pip Hague,

Since 31 January 2024, the Immigration Rules for visitors have been liberalised to allow a wider range of activities for business visitors, including in the areas of intra-corporate activities, remote working, providing legal services and carrying out research. The Permitted Paid Engagement visitor route has been expanded and incorporated into the standard visitor route, meaning these visitors can stay for up to six months.

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Provisions outlined in last December’s Statement of Changes in Immigration Rules HC 246, now apply to visa nationals with visitor visa applications made on or after 31 January 2024, and to non-visa nationals entering the UK as a visitor on or after this date.

As confirmed in the Chancellor’s Autumn Statement, further enhancements to visitor provisions are due to be rolled out later in 2024 and beyond, in line with the terms of future international trade deals.

This article analyses the main developments most likely to be of interest to businesses. It does not cover the full requirements for entry as a visitor to the UK.

Expansion of allowed intra-corporate activities

Individuals employed abroad who visit a group business in the UK may now carry out the following activities directly with clients:

• Advising and consulting;

• Trouble-shooting;

• Providing training; and

• Sharing skills and knowledge.

The activities must be undertaken to deliver a project or service on behalf of the UK group business (not the business abroad), and must be incidental to the person’s employment abroad.

It is no longer necessary for intra-corporate activities to be limited to those that are for the benefit of the group the visitor is employed by.

Clarification of remote working policy for visitors

The Rules have been updated to confirm that visitors are allowed to ‘undertake activities relating to their employment overseas remotely from within the UK, providing this is not the primary purpose of their visit’.

When interpreting this Rule, it is important to understand that for UK immigration purposes, ‘employment’ is defined as including:

• Paid and unpaid employment;

• Paid and unpaid work placements as part of a course or period of study;

• Self-employment; and

• Engaging in business or any professional activity.

Although the new Rule contains no restriction on the range of work activities that may be carried out remotely in the UK as part of overseas employment (as defined under the Rules), visitors should note the following:

• The requirement not to make remote working the primary purpose of a visitor stay acts as a significant restriction in comparison to the digital nomad schemes offered by other countries – although nothing has been announced to-date, it may be that the UK considers launching a digital nomad visa in the future to be more competitive;

• Unless a specific exception applies, visitors cannot be employed in the UK (as defined in the Rules) – this can prevent businesspeople and the self-employed from working for UK-based clients (as opposed to clients based outside the UK) while they are physically in the UK; and

• Unless a specific exception applies, visitors must not receive payment from a UK source for any of their activities carried out in the UK.

Following the update to the Rules, the visit guidance for Home Office officials now refers to visitors being able to participate in remote meetings in addition to responding to emails and answering phone calls.

The guidance also now lists the following factors that officials should consider when assessing whether remote work is the primary purpose of a visit (and whether the broader visitor requirements are met):

• Whether the proposed length of stay would be financially viable without remote working on an ongoing basis;

• The length of stay itself – a stay of more than one month will attract close scrutiny and remote work activities lasting more than 90 days may lead officials to ask questions about the nature of the remote work (to check it does not breach employment and payment restrictions);

• If a visitor is in the UK for permitted business activities – officials may check that these do not amount to being seconded to a UK company/organisation, or to the UK branch of their overseas employer;

• If a visitor will spend a large proportion of their time in the UK and claims to be doing some remote working – officials should check they are genuinely employed abroad rather than intending to work in the UK; and

• Whether there are any concerns about the visitor intending to live in the UK for extended periods through frequent or successive visits.

The bottom line here is that care should still be exercised when considering working remotely in the UK as a visitor.

Greater scope for providing legal services

The expanded activities allowed under the amended Rules are as follows:

• Advice;

• Appearing in arbitrations;

• Acting as an arbitrator/mediator;

• Acting as an expert witness;

• Appearing in court in jurisdictions which allow short-term call or where qualified in that jurisdiction;

• Conferences, teaching;

• Providing advocacy for a court or tribunal hearing;

• Litigation; and

• Transactional legal services, including drafting contracts.

The requirement for legal services to be for a UK-based client has been dropped. This amendment recognises the complexity of the client parties and practices often involved in legal work.

Although the range of activities allowed seems extensive, those coming to the UK to provide legal services should be aware that the permitted activities must also meet the general requirements for standard visitors, including being a genuine visitor, not carrying out prohibited activities and complying with restrictions on receiving payment from a UK source.

What this means is that an assessment needs to be made on a case-by-case basis on whether a person providing legal services may do so under the permitted activities above, or whether the requirements for permitted paid engagement may need to be met in addition. It also remains the case that if the visitor requirements are not fully met, alternative immigration permission may be required, for example under the Skilled Worker or Law Society Government Authorised Exchange routes.

Project-based research

Academics, scientists, and researchers are now allowed to carry out research in the UK as a visitor, provided this is for a specific project directly relating to their employment abroad. Prior to the changes, research was restricted to independent research and research for an academic’s own purposes while they are on a sabbatical from their home institution.

Restructuring and expansion of permitted paid engagements

Being a speaker at a conference has been added as a permitted paid engagement (PPE).

The route has also been absorbed into the standard visitor route, meaning that individuals who need to come to the UK for PPE purposes may enter the UK for six months instead of one.

Standard vistors intending to carry out a PPE must:

• Receive an invitation for their engagement from an inviting organisation listed in the Rules, before they arrive in the UK;

• Be over the age of 18 on the date they arrive in the UK; and

• Complete the within 30 days of their arrival.

Logistically, this change has the benefit of enabling non-visa national PPE visitors to use an eGate on arrival rather than having to be stamped in for one month by a Border Force official. It also avoids the possibility of being incorrectly landed as a standard visitor, without the relevant permission to complete the planned engagement.

PPE visitors were previously not allowed to study in the UK. As standard visitors, they may now attend a recreational course for up to 30 days. They may also study or carry out research or research tuition for up to six months with an accredited institution, provided additional criteria for the course or research are also met.

Although the new arrangements for PPE seem straightforward at first glance, visitors using them will need to take care to ensure their entry is timed correctly to enable them to complete the engagement within 30 days. They also should also not accept and carry out further PPEs during the same visit – a fresh entry (and visa, for visa nationals without a long validity-visitor visa) would be required for this.

On a separate but related point, there are no changes for non-visa nationals who use the Creative Worker visa concession – they must still see a Border Force official on arrival and be stamped in for up to three months.

Upcoming change of visit arrangements for nationals of Gulf states and Jordan

Currently citizens of Bahrain, Kuwait, Oman, Saudi Arabia and the UAE must apply for an Electronic Visa Waiver (EVW) before travelling to the UK. Citizens of Jordan must obtain a visa before travel.

The EVW scheme will end from 22 February 2024, as well as the visa requirement for citizens of Jordan.

Citizens of the above countries intending to enter the UK as a visitor from 22 February 2024 will instead be required to apply for an Electronic Travel Authorisation (ETA). This change will be welcomed as the fee for an ETA is £10 for two years, or the expiry of the person’s passport (if earlier). This is significantly lower than the EVW fee of £30 per entry and the visitor visa fees, which are between £115 for a six-month visa and £963 for a ten-year long-term visa.

If you have any queries relating to these changes, please contact a member of our Immigration Team.

Related Item(s): Immigration

Author(s)/Speaker(s): Andrew Osborne, Sam Koppel, Kathryn Denyer, Angel Skyers,

With National Apprenticeship Week coming up next week, it’s a good time to think about hiring apprentices. Many organisations are looking to recruit for their September intake in order to make good use of their Apprenticeship Levy funds. Here are our ten top tips for employing an apprentice.

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1. Get the type of apprenticeship agreement right

For an employer to be eligible for Apprenticeship Levy funding in England and Wales, there must be a valid Apprenticeship Agreement in place between the apprentice and the employer. This is an agreement in a prescribed form that covers specific things, including the trade or occupation for which the apprentice is being trained.

The Apprenticeship Agreement forms part of the employment contract between the parties. The provisions can be included within the employment contract or can be set out in an additional document.

If the requirements for an Apprenticeship Agreement are not met in England and Wales, the arrangement will not be eligible for Levy funding. It also risks falling into a category of contract known as an old-style “contract of apprenticeship”.

Apprentices employed under this contract of apprenticeship (“common law” apprentices) have enhanced protection against dismissal. For example, a dismissal for performance reasons will only be found to be fair if the employer can show that the apprentice is “unteachable”. A redundancy dismissal is only possible in limited circumstances, such as where an entire company is closing down. A dismissal prior to completion of the apprenticeship can also allow the apprentice to make a breach of contract claim for “career loss” damages.

Getting the type of apprenticeship agreement right is therefore of paramount important.

Note that in both Scotland and Northern Ireland, apprentices are generally common law apprentices which means they have this enhanced dismissal protection.

2. Get the contract right

Even where the requirements for the Apprenticeship Agreement are met (either within the contract or in a separate document), we would recommend including other useful provisions relevant to an apprenticeship which may not normally appear in your standard template.

For example, you may wish to include provisions relating to attendance at off-the-job training, expected academic milestones, and clear wording regarding what happens at the end of the apprenticeship (see tip 10 below).

3. Recruit carefully

Where there is a valid Apprenticeship Agreement in place, apprentices in England and Wales have the same rights as other employees, meaning they can be recruited and dismissed in the same way.

As mentioned above, the rules on apprenticeships are different in Scotland and Northern Ireland, and apprentices have enhanced dismissal rights. Even serious misconduct, which could be considered gross misconduct for an employee, may not be enough to dismiss a common law apprentice. Employees hiring apprentices in Scotland and Northern Ireland should ensure they have robust recruitment processes and, where possible, obtain references on potential apprentices to ensure possible risks of early termination are reduced.

It is important to remember that recruitment should be open to all suitable candidates. In particular, it should not be limited to younger workers as this is likely to be age discrimination. It is also possible to use apprenticeships as part of a “returnership” programme for older workers – see our recent article on how employers an support older employees in reskilling and returning to the workplace for more information on the risks and benefits of this option.

It is also important to comply with all immigration requirements: the Apprenticeship Funding Rules contain specific provisions relating to which immigration statuses are eligible for apprenticeship funding. An employer must carry out right to work checks in the same way as they would for an employee. Contracts of apprenticeship are specifically covered under the applicable civil penalty regime for failures to comply with the rules.

4. Consider providing financial assistance upfront

This will often be an apprentice’s first experience of venturing into a working environment outside full-time education. They may also be moving to a new location, such as an unfamiliar new city. Employers may wish to consider providing help and support to new apprentices to help with the transition.

Areas to think about include: to what extent the apprentices are able to manage financially until receiving their first pay; whether they have the ability or resources to find suitable accommodation; and how they will travel to the new location. These issues are likely to be especially tricky for those from less privileged socio-economic backgrounds, and employers may wish to consider bursaries or other schemes to help overcome these hurdles.

5. Put internal mentoring structures in place

Apprentices entering the workforce for the first time will need consistent help and support.

A good way to provide this is to put in place a designated mentor or “buddy” for each apprentice as an alternative source of support outside of the usual management set-up. This will assist with their integration in the workforce and provide an important first point of contact for any problems they are experiencing.

The apprentice workforce is more likely to be young (although not necessarily so, as flagged in tip 3 above in relation to recruitment). It can be very beneficial to ensure there is good support network at the employer right from the outset, where they feel comfortable to discuss issues outside the scope of the role.

6. Make sure performance expectations are set out clearly from the start

Clear expectations are important for any employee, but they are especially important for new apprentices. Apprentices will often have less understanding about what is expected from a new recruit – both generally with regards to working in a professional environment, and individually in relation to their role progression.

It is essential to provide clear guidance in relation to the tasks the apprentice will be carrying out, how their work will be reviewed, and also how the office environment functions. For example, expectations in relation to communication, attendance, organisation skills and general etiquette.

However, performance in the workplace is only one half of the apprenticeship. Of equal importance is their ability to pass the academic requirements of the course. Work with your training provider to set out clear expectations and goals, with a detailed timetable setting out by when certain objectives need to be achieved in order for the apprentice to succeed. Communication with the training provider is also key: consistent failure to attend training, pass modules or reach academic milestones may be a sign that the apprentice requires more support or that they are not suited to the course. It will be the employer’s responsibility to put in place any appropriate performance management processes (see tip 8 below).

Where an apprentice is engaged under an Apprenticeship Agreement, meaning that normal employment rules apply, it is advisable to include some key performance requirements in the contract. For example, by limiting the permitted number of attempts to pass academic modules, or making repeated not-attendance at off-the-job training an example of gross misconduct.

7. Don’t put your least experienced manager in charge of apprentices

It is tempting for organisations to consider that apprentices can be managed by one of their junior and less experienced managers, who may be closer to them in terms of recent experience of being a new joiner.

However, this can be a mistake. Apprentices are actually likely to need additional help and support through their apprenticeship, and with the combined issues of academic and work performance to consider and manage, a skilled manager will be far better suited to the role. Failure to properly manage apprentices can lead to a high drop-out rate, and a higher risk of disputes – for example, because performance issues have not been managed consistently.

8. Actively performance manage through the apprenticeship

Making sure that your apprentice receives plenty of feedback is essential. Apprenticeships are about learning and training, so having regular catchups and monitoring provides the opportunity to show apprentices what they are doing well and what they need to improve on to achieve their goals. It’s also a good way to check if they are struggling with anything and might need additional support.

Consistent management is the only way to ensure that your apprentice is heading in the right direction. If insufficient supervision is given throughout the course of the apprenticeship, the employer and the apprentice may realise too late that the apprentice is not demonstrating the skills needed to successfully complete the programme. From a pastoral point of view, giving your apprentice lots of feedback will also provide them with reassurance that they are on track and build up their confidence.

Conversely, as with any other employee, where the apprentice is not performing to the required standard, active performance management is the only way to ensure improvement. It is also the fair way to determine that the apprentice is not suited to the programme and potentially bring their employment to an end (where this can be done safely – see tip 9 below).

Feedback can take place as part of regular reviews or through immediate informal feedback. For example, a weekly informal check-in to catch up on the week, or giving the apprentice an immediate positive response on a piece of work if they did well. As for all employees, it is important to keep a record of performance feedback, so that you can demonstrate how the apprentice has performed throughout the programme.

9. If you need to dismiss an apprentice before completion, be cautious

The position of an employer regarding dismissal varies depending on the type of apprenticeship.

Common law apprentices have no statutory framework and have enhanced protection against dismissal. The only way an employer can end an apprenticeship before the end of a fixed term is if the apprentice is deemed “unteachable”. If a common law apprenticeship is ended before the end of a fixed term without proper grounds to do so, the apprentice might be able to claim for damages as a result of breach of contract. Employers need to be sure that if they are dismissing an apprentice, they have evidence to prove that the individual was unteachable. As mentioned in tip 1 above, this applies to apprentices working in Scotland and Northern Ireland, and may also apply in England and Wales if there is no valid Apprenticeship Agreement.

Apprentices under either of the statutory apprenticeship schemes in England and Wales have “employee” status. They acquire the same rights as other employees, including the right not to be discriminated against and (after two years’ service) the right not to be unfairly dismissed. Unlike common law apprenticeships, they do not have enhanced dismissal protections, meaning they can be dismissed on the basis of a fair reason after following a fair process.

However, in our view, when assessing whether or not a proposed dismissal of an apprentice will be fair and reasonable, employers should consider some additional points. For example, is the apprentice being judged by reference to an appropriate standard of conduct or performance, considering their status as someone “in training”? If the apprentice is succeeding on the academic aspects of the course, is there any flexibility or additional support which could be given relating to the “on the job” training? Where an apprentice is close to completing the apprenticeship, is there any way of allowing completion to avoid the apprentice losing the opportunity to gain their qualification? A dismissal close to the end of the apprenticeship is more likely to be unfair because of the consequences for the apprentice.

10. Be clear about what happens at the end of the apprenticeship

Of course, the aim of the apprenticeship is that your apprentice will successfully complete their course and go on to find permanent employment in their chosen field.

We would recommend ensuring that there is clear wording in the apprenticeship agreement regarding whether or not employment with the employer is likely to continue beyond the apprenticeship, such as by way of an offer of a permanent position, or will automatically terminate when the apprenticeship is complete. If the latter, this is likely to be a “some other substantial reason” dismissal for the purposes of unfair dismissal, rather than a redundancy. This is on the basis that the role of “apprentice” is likely to still exist, but the employee is no longer eligible for that role because they have completed their own apprenticeship.

For more information please contact our Apprentices team: Abi Frederick, Lee Nair, Saffron O’Gorman.

Related Item(s): Employment

Author(s)/Speaker(s): Abi Frederick, Emily Bennett,