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.

Text:

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.

Text:

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.

Text:

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,

The Home Office has issued a new statement outlining the launch dates for major reforms to the Skilled Worker and Partner routes. This, along with other recent announcements confirms a packed timeline of immigration reforms due to be made over the next year.

Text:

The Home Secretary’s latest statement, published on 30 January 2024, mainly focuses on reforms to the Skilled Worker and Partner routes. The majority of these will be rolled out during March and April 2024. Other reforms are due during 2024 and into early 2025. In particular, the changes to the salary thresholds for Skilled Workers will come into force on 4 April 2024.

Taken together, the recent and forthcoming changes are designed to significantly reduce net migration, increase revenues to the Home Office and advance its digital transformation agenda.

A timeline summary of upcoming immigration reforms is set out below. Dates announced in the Home Secretary’s latest statement are flagged as being new.
For more detailed information on individual reforms, see the links in the description column or refer to our recent article, What’s happening in UK immigration law in 2024?

Date	Description
1 January 2024	Partner and child dependants of Students only allowed if the Student is starting a course on or after 1 January 2024 that is a PhD or other doctorate, or a postgraduate research programme
31 January 2024	Liberalising reforms to visitor route come into effect
1 February 2024	Electronic Travel Authorisation opens for citizens of Bahrain, Jordan, Kuwait, Oman, Saudi Arabia and the United Arab Emirates who are travelling to the UK on or after 22 February 2024
6 February 2024	Immigration Health Surcharge increases to: £776 for Students, Student dependants and Youth Mobility Scheme applicants £1,035 for all other non-exempt applicants for limited immigration permission, including main applicants in work routes
13 February 2024	Maximum civil penalty for illegal working rises to £60,000
23 February 2024	Migration Advisory Committee to report on rapid review of the Immigration Salary List, which will replace the Shortage Occupation List for the Skilled Worker route
NEW: 19 February 2024	Immigration Rules to be laid to bring into effect 11 March 2024 ban on Carers and Senior Carers being accompanied by partners and children as Skilled Worker dependants
NEW: 11 March 2024	Partners and children of Carers and Senior Carers cease to be eligible to apply as Skilled Worker dependants
NEW: 11 March 2024	Sponsor guidance to be amended to require care home sponsors to be registered with the Care Quality Commission to sponsor Carers or Senior Carers
NEW: 14 March 2024	Immigration Rules to be laid to bring into effect 4 April 2024 reforms to the Skilled Worker and Partner routes
NEW: 4 April 2024	Skilled Worker route changes come into effect, including: Increase to the general salary threshold from £26,200 to £38,700 Amendments to going salary levels Abolition of the 20% salary discount for shortage occupations Replacement of the Shortage Occupation List with the Immigration Salary List
6 April 2024	Sponsors of workers with a licence expiry due on or after this date are not required to make an application to renew their licence – licences no longer have an expiry date. Sponsors have been advised of this directly on the Sponsor Management System.
NEW: 11 April 2024	Minimum income requirement for five-year Partner route applicants to be raised from £18,600 to £29,000, and marginal income requirement for child dependants to be removed
TBC mid-to-late 2024	Migration Advisory Committee to carry out full review of Immigration Salary list (amendments to this list to be made following the review)
TBC mid-to-late 2024	Minimum income requirement for five-year Partner route applicants to be raised from £29,000 to £34,500
By the end of 2024	Electronic Travel Authorisations implemented for all non-visa nationals
31 December 2024	Phase-out of physical immigration documents including Biometric Residence Permits, Biometric Residence Cards and other paper-based documents – holders will need to obtain a UKVI account to prove their status after this date
‘Early’ 2025	Minimum income requirement for five-year Partner route applicants to be raised from £34,500 to £38,700

The Home Office also plans to make improvements to the sponsor licensing system during 2024, in line with the Home Office’s sponsorship roadmap. This programme of reform is running significantly behind schedule and no up-to-date rollout dates are currently available.

If you have queries about these developments, 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,

The Home Office is struggling to cope with a surge of demand for immigration application-related services ahead of an increase in the Immigration Health Surcharge and upcoming changes to the Skilled Worker and Partner routes.

Text:

For further information on the changes putting pressure on immigration services provided by UK Visas and Immigration, see our earlier articles on the Immigration Health Surcharge (which affects most applications for UK limited immigration permission) and on the Government’s five-point plan to reduce net migration (which affects the Skilled Worker and Partner routes).

What services are currently affected?

Application processing for all immigration applications may be delayed due to a significantly higher volume of application being under consideration than usual.

For the Skilled Worker route, services required as a pre-requisite for making an immigration application are affected including:

• Sponsor licence applications;
• Applications for defined Certificates of Sponsorship for Skilled Workers applying for entry clearance from outside the UK;
• A significant inability to secure availability of the Worker and Temporary Worker priority change of circumstance service, and in particular for:
  • Requests for additional or annual undefined Certificate of Sponsorship allocations for Skilled Workers applying for permission to stay in the UK; and
  • Requests to make changes to the key personnel on a sponsor licence; and

• Standard sponsor change of circumstances services, which can take up to 18 weeks to process.

A delay in availability of a Certificate of Sponsorship is a serious matter for individuals intending to make an in-country application under the Skilled Worker route ahead of existing immigration permission expiring, and options for individuals in this situation should be considered on a case-by-case basis.

If you have queries about this topic, 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,

The civil penalty an employer may receive for employing an illegal worker will rise from £20,000 to £60,000. This significantly increases the financial risk to employers of failing to carry out rigorous and compliant right to work checks.

Text:

The relevant statutory instrument implementing the new maximum civil penalty was made by Parliament on 23 January 2023 and comes into effect on 13 February 2024.

From the same date, a new Code of practice on preventing illegal working: Right to work scheme for employers will also come into effect. This code of practice sets out:

• How an employer may establish a statutory excuse against liability for an illegal working civil penalty;
• An overview of the process under which the civil penalty regime is administered;
• How liability is determined and the penalty amount is calculated for a first breach and a repeat breach of the right to work scheme.

Any employer issued with a penalty notice on or after 13 February 2024 will be subject to the penalty calculations in the new code of practice unless the illegal working identified in the notice ceased on or before 12 February 2024. This includes 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.

This means that unless the employment began and ended before 13 February 2024, an employer of an illegal worker will be subject to the higher penalty. If the employer has a completely compliant right to work check history for the employee, this should provide a statutory excuse against the penalty unless there is also evidence the employer knew or should have known they were employing an illegal worker. However, it is important to be aware that seemingly minor deviations from a compliant right to work check will mean that a statutory excuse is not available. It is therefore very important to have compliant right to work checks on file for all employees.

Employers should also note that the civil penalty enforcement action would usually start at the maximum level and only reduce if set mitigating factors can be established.

If an employer seeks to rely on a compliant right to work check carried out on or before 12 February 2024 when asserting a statutory excuse against liability for a civil penalty, this will be considered in accordance with the code of practice that was in effect at the time the right to work check was made.

As mentioned in our earlier article here, we would suggest that employers consider undertaking the following actions to minimise the risks of being liable for civil penalties and being subject to compliance action due to illegal working:

• Carrying out periodic internal and/or external audits of right to work check documentation and processes;
• Providing ongoing training to staff involved in completing right to work checks;
• Taking specialist immigration and/or employment law advice where right to work queries arise; and
• Taking swift advice where potential illegal working is identified.

Right to work check requirements can feel complicated because there are different requirements for different types of right to work. Additionally, how the checks can be made has changed since the pandemic when certain allowances were made. Add to this that the use of IDSPs often leads to misunderstandings about which checks they can legitimately complete on behalf of employers and it is actually quite difficult to always ensure full compliance. 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 queries about this development or require assistance with right to work compliance, please get in touch with a member of our Immigration Team.

Related Item(s): Immigration

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

Substantial rises to the Immigration Health Surcharge have now been approved by Parliament to come into effect within the next few weeks. Individuals hoping to avoid these should submit their UK immigration application by 5 February 2024 to be sure they are not impacted.

Text:

The draft Immigration (Health Charge) (Amendment) Order 2023 has now been approved by both houses of Parliament as of 15 January 2024. There will be a short period between the Order being approved and it being made, which may only be a few days. Since the increases will become effective 21 days after the Order is made, this will not be any earlier than 6 February 2024.

The new yearly rate depends on the immigration category the applicant is applying under, as follows:

Applicant type	Immigration Health Surcharge per year before the rise (GBP)	Immigration Health Surcharge per year after the rise (GBP)
Student, Student dependant, Youth Mobility Scheme and children aged under 18 on the date of application	470	776
All other applicants	624	1,035

The impact on a Skilled Worker applying for with a Certificate of Sponsorship issued for five years is illustrated below.

Scenario	Immigration Health Surcharge before the rise (GBP)	Immigration Health Surcharge after the rise (GBP)
Main applicant only	3,432	5,692.50
Main applicant with partner dependant	6,864	11,385
Main applicant with partner dependant and one child	9,449	15,653
Main applicant with partner dependant and two children	12,034	19,921

Note that in the above illustration, the Immigration Health Surcharge is calculated based on the length of the immigration permission granted, rounding up in six-month increments. Because sponsored workers are granted immigration permission for slightly longer than their Certificate of Sponsorship, a worker sponsored for five years will pay the Immigration Health Surcharge for five-and-a-half years rather than for five. The illustration also assumes that dependants apply at the same time as the main applicant.

Whether to apply before the rise will depend on a range of factors including the following:

• Whether the applicant is exempt from paying the charge (in which case there is no need to apply earlier);
• The availability of a certificate of sponsorship (for sponsored work routes);
• The start date of a sponsored role, which must not be more than three months after the date of application; and
• How the timing of an application may impact on the expiry date of the permission granted, and therefore whether the holder will have sufficient permission to apply for settlement if desired, or will have to apply for a further extension – in this case a calculation would need to be made to determine the likely timelines for application processing and what is the least costly process.

If you require assistance with an application or have queries about this development, please get in touch with a member of our Immigration Team.

Related Item(s): Immigration

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

2023 ended with a significant announcement on the largest expansion and shakeup to the employment permit system since its inception. In 2024, we expect to see further changes to the employment permit system and the possibility of the enactment of the Employment Permits Bill. However, we also expect to see further changes adopted as part of the Department of Justice’s modernisation programme, like those we have seen with the naturalisation process and the possibility of proposals on the adoption of a single application procedure.

Text:

Employment Permits System

In June 2023, the Department of Enterprise, Trade and Employment invited relevant stakeholders to submit evidence to support claims for certain occupations to be included on the critical skills occupations list or take off the list of ineligible occupations for employment permits. While nothing of note seemed to be happening following the closure of the consultation period in August 2023, in a surprise pre-Christmas announcement, the Irish Government significantly expanded Ireland’s employment permit system and increased the salary requirements for most employment permit types. Here’s our article detailing the announcement but in summary, the announcement included 43 changes to the occupations lists for employment permits, making 32 new occupations eligible for a general employment permit and 11 new occupations eligible for a critical skills employment permit.

A new roadmap for incrementally increasing the salary requirement for most employment permit types was also published. Notably, all general employment permits may see the minimum salary requirements gradually increase to €39,000 between January 2024 and January 2026. Additionally, the minimum salary requirement for a critical skills employment permit for applicants requiring a relevant third level degree may rise to €44,000 by January 2025. Many employers will likely need to review and reforecast their budgets for employment costs to ensure any employment permit holders they employ can continue to work in Ireland.

However, further changes may be likely in 2024. When these changes were announced, Minister for State, Neale Richmond TD noted that over 121 submissions were received with more than 350 changes of various types sough in response to the Department’s invitation. Ultimately, more than 40 changes were made to the occupations lists with further changes to salary requirements. The Minister confirmed that other requests would continue to be considered on an “exceptional basis”. Therefore, we may see quotas for employment permits extended to other occupations while other occupations may become eligible for general employment permits and critical skills employment permits in 2024.

Employment Permits Legislation

While not necessarily a development in 2023, draft legislation in the form of the Employment Permits Bill 2022 was published in late 2022 with the intention to streamline, improve and modernise the employment permit system and increase its responsiveness to Ireland’s evolving labour market. As drafted the Bill proposes to:

• Consolidate existing employment permit legislation.
• Create a new type of employment permit for seasonal workers, designed to facilitate non-EEA nationals’ employment in “seasonally recurrent employment”, which will be specified in separate regulations.
• Allow subcontractors to make use of the employment permit system.
• Give the Minister power to specify conditions relation to the grant of employment permit which may include, accommodation, upskilling, training or expenses.
• Revise the existing labour market needs test to remove any requirement to publish a vacancy in a national or local newspaper.
• Introduce automatic salary indexation of salary requirements for employment permits.

As drafted, the Bill would help improve efficiency in the system by moving much of the operational details for the employment permit system to regulations to be made under the primary legislation which can be introduced more quickly in order to keep up with evolving recruitment practices. It is disappointing that little headway was made in 2023 to advance this Bill. However, in an election year and given we are yet see the true impact of what the recent expansion and changes to Ireland’s employment permit system might bring, this Bill may move up the legislative agenda and we may see even more the changes to Ireland’s employment permits system this in 2024. We will continue to watch this space closely for developments.

Modernisation Programme

With technological developments and progress all around us, digital transformation has become one of the driving forces behind the evolution of global immigration processes and policies. What initially began as the implementation of online systems during and following the COVID-19 pandemic, there is an increasingly permanent shift by governments to modernise and digitise immigration systems and processes.

The Department of Justice is no different and in April 2023, as part of its strategy to improve Ireland’s immigration system, it established a modernisation programme to make Ireland’s immigration system faster, more accessible, and more efficient.

The Department’s aim in the long term for immigration services it to digitise them and to move them onto a single online platform. It also seeks to improve customer service by simplifying processes and making the immigration system easier to understand whilst also maintaining security.

As part of its modernisation programme in 2023:

• The Department of Justice moved the citizenship application processes for adults and minors online. At the same time and in an effort to improve customer service, efficiency and to make the system more accessible to end users, it also relaxed some of its eligibility rules for naturalisation (as noted below).
• The Department of Justice took over the Stamp 4 application process for critical skills employment permit holders. This has streamlined the process significantly as it has ended the Department of Enterprise Trade and Employment’s involvement in the process by removing the need for critical skills employment permit holders to receive a letter of support from it as part of the application process.

It will be interesting to see what other improvements are made in 2024 as the Department‘s other objectives include:

• Clearing the ever-increasing backlog of immigration application types;
• Transferring the remaining immigration duties from the Garda National Immigration Bureau to the Department of Justice;
• Moving towards timely processing of applications for international protection and towards making the international protection process more efficient;
• Ensuring the fairness and efficiency of the Irish immigration system through new strategic policies and legislative proposals.

It should be noted these are outline goals only and won’t have any policy impact. However, changes implemented as a result of pursuing these objectives may see employers hiring foreign nationals in Ireland and employees seeking to enter the Irish labour market can expect improved services, additional use of online platforms, more consistent decisions and increased transparency in the immigration process.

Naturalisation Rules

In 2023, the Department of Justice relaxed its naturalisation rules, allowing applicants to spend a greater period outside the country.

As part of an application for naturalisation by an adult, the applicant is required to have one year’s continuous residence in Ireland immediately prior to the date of application. During the 8 years immediately preceding that period, the applicant must have a total residence in Ireland of 4 years.

Previously, the Department of Justice deemed absences longer that 6 weeks per year non-reckonable for naturalisation purposes. Accordingly, if the applicant was absent for more than 6 weeks in a year, that year would not be counted for the purposes of the naturalisation application. Further, the Department of Justice would allow the year to still be counted if “exceptional circumstances” existed and could be demonstrated to the Department.

However, the difficulty with the above was that the Department of Justice operated these rules through an internal policy and so there was no clear “exceptional circumstances” provision in guidance or law and so reliance on such internal policies created significant uncertainty for applications, creating restrictions on the ability to leave Ireland – whether for personal or professional reasons. It led to many applicants submitting lengthy submissions, either to justify absences and/or to seek exceptions.

In a welcome move, these rules were relaxed, and some outline guidance was provided. Now, naturalisation applicants can be outside Ireland for a total of 70 days in the year preceding the application. Applicants may also seek an additional 30 days for exceptional circumstances (which include family or personal circumstances, health issues, employment or study obligations, and voluntary humanitarian service).

In relation to the other four years of residence required for the naturalisation application, the applicant is now required to demonstrate, by way of objective assessment, that Ireland has been their primary residence for that period.

Despite clarifying the situation for these application types, the legislation and guidance still does not address the situation for adult applicants who must rely on their parents’ documentation for periods when they were a minor to prove their residence during that period. Therefore, we may see the Department of Justice announce further changes to provide clarity and tweaks to these applications in 2024.

Single application procedure for employment permit and immigration permissions

Proposals for the development of a single application procedure for employment permits and immigration permissions were agreed in principle by the Irish Government in 2022. An Inter Departmental Working Group was then established to develop an implementation plan for consideration by Government. While no report was published by the Group in 2023, we will need to wait and see whether any recommendations or proposals in relation to the implementation of the proposed single application procedure are published in 2024 and whether it will take into consideration the Department of Justice’s Modernisation Programme and the latest changes to Ireland’s employment permit system.

Keep in touch with Lewis Silkin for further updates and assistance

We will be monitoring immigration law developments throughout 2024 and will publish further information once it becomes available.

Our business immigration services cover all aspects of work and business immigration permissions, employment permits for new and existing hires, business visas and additional assistance for their family members. We also offer training, assistance with implementing policies and procedures to ensure compliance with immigration law, mock audits of existing systems to identify any areas of risk and to suggest improvements to ensure you are prepared for any Workplace Relations Commission investigation.

If you have any queries on any of the topics raised in this article or need assistance with any Irish immigration application, please contact Declan Groarke.

Related Item(s): Immigration, Ireland

Author(s)/Speaker(s): Declan Groarke,

In a surprise pre-Christmas announcement, the Irish Government significantly expanded Ireland’s employment permit system but also increased the salary requirements for most employment permit types. While this is welcome news, it also means that some employers may need to review and reforecast their budgets for employment costs to ensure any employment permit holders they employ can continue to work in Ireland.

Text:

On 20 December 2023, Neale Richmond TD, Minister of State for Business, Employment and Retail announced the largest employment permit system expansion since its inception. The announcement includes 43 changes to the occupations lists for employment permits, making 32 new occupations eligible for a general employment permit and 11 new occupations eligible for a critical skills employment permit. A new roadmap for incrementally increasing the salary requirement for most employment permit types was also published.

These reforms may contribute to resolving some of the labour shortages many employers in Ireland have been experiencing over the past few years. They will also enable a greater range of employers to benefit from access to Ireland’s employment permit and immigration system.

Background

In June 2023, the Department of Enterprise, Trade and Employment invited relevant stakeholders to submit evidence to support claims for certain occupations to be included on the critical skills occupations list or to be taken off the ineligible list of occupations for employment permits. However, until very recently, the only change of note came by way of the introduction of a new quota of general employment permits for electrical linespersons where 100 permits were approved to help alleviate the pressure on the ESB Networks’ overhead line framework contractors.

The recent announcement represents a more comprehensive outcome from this review.

Changes to the occupations lists for employment permits

In summary, 11 roles have been added to the critical skills occupations list and 32 roles have been removed from the ineligible list of occupations for employment permits, making them eligible for an employment permit so long as the other requirements are met.

The changes focus on supporting specific sectors experiencing labour shortages.

Construction: The construction sector benefits significantly from the removal of electricians, electrical engineers, electrical contractors, skilled metal, electrical and electronic trades supervisors and other construction-related occupations from the ineligible list, making them eligible for general employment permits. Additionally, BIM manager, BIM coordinator/technician, estimator, and commercial manager have been added to the critical skills occupation list. Project engineers and chemical engineers who may also play a role in the construction sector have been added to the critical skills occupations list.

Healthcare, Social Care and Disability Services: In a move which is counter to the UK’s recent announcement that care workers will no longer be permitted to be accompanied by their partners and children, a number of occupations in the care sector are now eligible for a general employment permit. This is notable as approximately 9,000 employment permits were issued to individuals in the healthcare sector in 2023 in Ireland alone. These numbers are likely to jump with the introduction of the following occupations which are now eligible for an employment permit:

• Senior care workers – in disability services.
• Residential day and domiciliary case managers – in disability services.
• Play therapist – in disability services.
• Genetic counsellor.
• Social care worker.
• Family support workers – in disability services.
• Project offices, disability.
• Support worker (social, community, public and charity).
• Guide dog mobility instructor for the visually impaired.
• Autism assistance dog instructor

In addition, the occupation of Optometrist (Ophthalmic Optician) has been added to the critical skills occupations list and is now eligible for a critical skills employment permit.

Car Maintenance, Transport, Logistics and Haulage: Occupations eligible for a general employment permit in these industries now include car, motor, and HGV mechanics, auto electricians, motor vehicle technicians, vehicle body builders and repairers, body shop panel beaters, vehicle paint technicians, and armature rewinder.

This is very welcome news as these industries are among the most short-staffed in Ireland as we saw with the allocation of 100 general employment permits to NCT testers earlier this year.

Meteorology: Occupations eligible for a critical skills employment permit now include resource modelling, earth observation and data analyst, meteorologist, and operational forecaster.

Horticulture: In addition to new quotas for horticulture workers (see below), specialty forestry harvesting technicians are now eligible for a general employment permit. Professional foresters have been added to the critical skills occupations list.

The above will support the current government’s Housing for All plan and National Development Plan and ensure further resources are made available to meet its targets under those respective plans.

Pharma/Life Sciences/Construction: Project engineers and chemical engineers have been added to the critical skills occupations list, making them eligible for a critical skills employment permit.

Food, Agri-Food and Agriculture: Niche roles in the agriculture sector, including butchers/deboners, bakers, pig managers and pig farm assistants are now eligible for general employment permits.

Craft: Certain craft production roles, such as upholstery and furniture operatives, furniture makers and other craft woodworkers, textile process operatives, wood machine operatives and saw doctor/wood machine mechanic are now eligible for general employment permits.

Changes to quotas for employment permits

The following occupations have had their general employment permit quotas extended with effect from January 2024:

Occupation	New general employment permit quota
Meat processing operatives	1,000
Butchers/deboners	350
Dairy farm assistants	350
Horticultural workers	1,000 (to support the sector ahead of the seasonal employment permit being introduced)

Changes to minimum salary requirements for employment permits

There will be incremental increases in minimum salary requirements for various employment permit types. All general employment permits will see the minimum salary requirement gradually increase to €39,000 between January 2024 and January 2026.

Notably, the minimum salary requirement for a critical skills employment permit will rise to €44,000 if the applicant is required to hold a third-level degree relevant to the occupation. However, the higher salary threshold of €64,000 for a critical skills employment permit will remain unchanged.

Below is a detailed table setting out the current thresholds and incremental increases from 17 January 2024. The table also sets out what further changes are proposed to be made thereafter and until January 2026.

Employment Permit Type	Current Thresholds	January 2024 Threshold	January 2025 Threshold	July 2025 Threshold	January 2026 Threshold
General Employment Permit	€30,000 (€14.79ph)	€34,000 (€16.77ph)	€39,000 (€19.23ph)
General Employment Permit – Healthcare Assistance / Home Carer	€27,000 (€13.31ph)	€30,000 (€14.79ph)	€34,000 (€16.77ph)	€34,000 (€16.77ph)	€39,000 (€19.23ph)
General Employment Permit – Meat Processing / Horticulture	€22,916 (€11.30ph)	€30,000 (€14.79ph)	€32,000 (€15.78ph)	€34,000 (€16.77ph)	€39,000 (€19.23ph)
General Employment Permit – Graduate Positions / Language Skills Specialist	€27,000 (€13.31ph)	€34,000 (€16.77ph)	€39,000 (€19.23ph)
General Employment Permit – Butcher / Boner	€27,500 (€13.56ph)	€34,000 (€16.77ph)	€39,000 (€19.23ph)
Critical Skills Employment Permit (with a relevant 3rd level degree)	€32,000 (€15.78ph)	€38,000 (€18.74ph)	€44,000 (€21.70ph)
Critical Skills Employment Permit (no 3rd level degree but relevant experience held)	€64,000 (€31.56ph)	No change	No change
Intra-Company Transfer (Trainee)	€30,000 (€14.79ph)	€34,000 (€16.77ph)	€39,000 (€19.23ph)
Intra-Company Transfer (key personnel or senior executive)	€40,000 (€19.72ph)	€46,000 (€22.68ph)	€53,000 (€26.13ph)
Contract for Services	€40,000 (€19.72ph)	€46,000 (€22.68ph)	€53,000 (€26.13ph)

Note 1: Changes to salary requirements in 2024 will be effective from 17 January 2024. Furthermore, the figures provided for January 2025, July 2025 and January 2026 are preliminary and based on most recent CSO data and may be subject to change.

Note 2: For general employment permit applications, the Labour Market Needs Test is still required and will have to reflect the revised thresholds in order to be deemed valid.

Analysis of Minister Richmond’s Announcement

Consultation submissions

Minister Richmond noted that over 121 submissions were received with over 350 changes of various types sought. Ultimately, more than 40 of those changes made the list with the Minister confirming that the other requests would continue to be considered on an “exceptional basis” where issues arose. Therefore, we may see further quotas granted for general employment permits for certain occupations in 2024.

Labour Market Needs Test

The Labour Market Needs Test is still required for general employment permit applications, and will have to reflect the revised thresholds in order to be deemed valid.

Family reunification

The salary thresholds for employment permits have not changed for some time and in many respects, have failed to keep pace with inflation and economic growth.

Of note, general employment permit holders have no immediate family reunification rights and may only apply for family reunification once they have completed 12 months employment in Ireland. However, to be eligible to sponsor family members for family reunification, the employment permit holder must be earning a minimum level of income, which changes depending on the number of family members seeking family reunification.

The new employment permit thresholds more closely align with family reunification thresholds. Indeed, Minister Richmond noted that this will be particularly important to healthcare assistants and home carers, perhaps giving some indication that some level of concern was raised in response to the UK’s recent announcement excluding the dependants of care workers.

Increasing salary thresholds

Through increasing salary thresholds, the Government aims to ensure that the value of the skills and experience non-EEA citizens bring to the workforce is adequately recognised, and that good quality employment opportunities are afforded to them.

However, the incremental increases in salary thresholds may dampen some of the optimism among employers experiencing labour shortages. The new salary requirements and the ones proposed to be introduced in January 2025 and January 2026 may be above the market rates for many occupations which are eligible for employment permits. Therefore, some employers may struggle to pay the higher employment costs. And so, despite having access to the employment permit system, they may be reluctant or prohibited from using it.

Many current employment permit holders will also need to renew their employment permit in 2024 and beyond, or may need to have their permission bridged to move onto a Stamp 4. Unless transitional arrangements are made available , they will need to meet the new salary requirements to be eligible to renew or bridge their permission.

At this late stage in the calendar year, many employers may have already agreed budgets for 2024, including employment costs. Employers may need to review and revise these projected costs in light of this recent announcement.

It will be interesting to see what impact the changes to the system will have on the uptake of employment permits and whether any further changes will be made in 2024. We will continue to monitor and analyse developments as further details are released.

For further information or support in relation to this recent announcement, please contact Declan Groarke.

Related Item(s): Immigration

Author(s)/Speaker(s): Declan Groarke,

This Q&A covers questions raised in our webinar. This session discussed:

Text:

• The Home Office’s December 2023 immigration announcement to reduce net migration – for further information on this, see our article here.
• The Migration Advisory Committee’s report on shortage occupations
• Recent updates to the Immigration Rules and policy for workers and their sponsors
• Immigration implications when sponsored workers are made redundant
• Changes to the EU Settlement Scheme
• The new Electronic Travel Authorisation for visitors
• Phase-out of physical immigration documents
• Recent and upcoming increases to immigration fees, the Immigration Health Surcharge and illegal working civil penalties

Since the webinar took place, the Home Office published new Immigration Rules on visitors, the Youth Mobility Scheme and other matters of interest to employers. For a summary of these, see our article here.

	Topic	Question	Answer
1.	Five-point plan	Please can you confirm that existing visa holders on £27-28,000 per year will not need to be placed on £38,700 per year (for the same job) when their visas are renewed (i.e. the new salary threshold rules will only apply to new visa holders – not renewal of existing visa holders)?	This will depend on what transitional arrangements are included in the Rules, when published next year. The Home Office has released a factsheet confirming that the scope of any transitional arrangements is yet to be determined. The increase in the threshold is very high so it is to be hoped that there will be transitional arrangements so that people part-way through the process are not excluded from extension/settlement.
2.	Five-point plan	If requesting a sponsorship licence now, will the new Skilled Worker salary threshold apply?	The new general salary threshold is expected to apply for Skilled Worker immigration applications made from April 2024. So, if a sponsor licence is in the pipeline, it will depend on when this is granted and when the Certificate of Sponsorship allocation (for in-country applicants) or defined Certificate of Sponsorship (for entry clearance applicants) is available. These must be in place before an application can be made. We need to wait for the Immigration Rules to be published to know exactly what transitional arrangements will be applied, however it is conventional for new Rules of this nature not to be applied to applications submitted before the date the Rule change takes effect, even if the application is decided after this. There may also be further transitional arrangements put in place for people who already have immigration permission that was approved under the relevant current threshold, and who need to make an extension or settlement application in the future.
3.	Five-point plan	What does the increase in the general salary threshold for the Skilled Worker route mean for internships in work?	The details of a specific proposed internship would need to be reviewed on a case-by-case basis, however usually the most appropriate route for internships is the Government Authorised Exchange route. The Skilled Worker route may come into consideration if, for any reason, the proposed engagement is not appropriate for the Government Authorised Exchange route. This could be the case if the post will in fact fill a vacancy in the business’s workforce. If the Skilled Worker route is identified as the appropriate option, the individual would need to fulfil the criteria for that route, including salary thresholds.   If the Skilled Worker route is the appropriate option, some individuals may qualify at a lower salary threshold than the prevailing main general threshold, if, for example, their circumstances fall under the new entrant tradeable points option. We do not have any details yet regarding whether the general thresholds for all tradeable points options will be affected when the Immigration Rules are amended for Spring 2024. A recent Home Office factsheet confirms that salary discounting will remain for new entrants to the labour market.
4.	Five-point plan	We’re in the process of offering Graduate Programme roles starting late 2024, assuming these roles will fall under the same Skilled Worker general threshold of £38,700?	The new general threshold for the Skilled Worker route is due to be implemented in Spring 2024, so individuals starting a graduate programme in late 2024 would need to meet the prevailing salary thresholds, subject to any transitional arrangements. We do not yet have the details of what these will be. Note that some candidates may be able to use the tradeable points option for new entrants, which (subject to amendments to the rules) would mean they may qualify at a lower salary level. Health and Care roles and roles on national pay scales (e.g. teachers) will also be exempt from the new higher threshold.
5.	Five-point plan	Should we be waiting on processing new Skilled Worker visas until the government has updated the details regarding the increased salary details?   Will there be any exceptions for visa extensions for Skilled Workers who fall beneath the new minimum salary requirements?	An assessment may need to be made of whether it is possible and desirable to sponsor a person for the full five years at the current salary levels.   Employers should also be prepared for the possibility that a higher salary above the current threshold may need to be paid by the time the person is due to settle. We do not know yet what the extent of any transitional arrangements may be for workers who are sponsored before the higher threshold comes into effect.
6.	Five-point plan	As a follow-on from the answer to Question 5, is it possible to renew someone’s Skilled Worker visa ‘early’ i.e. 6/12/18 months before the visa is due to expire in order to use the current Skilled Worker salary thresholds?	Yes, it is possible to make an early application however the considerations around doing so should be assessed on a case-by-case basis. This will be the subject of a forthcoming separate article.
7.	Five-point plan	Will the new general salary threshold for Skilled Worker visas only apply to new entrants to the UK from the date it takes effect, or will it also apply to current sponsored employees (either immediately when the change takes effect, or at the point at which their visa needs to be renewed)?	We need to wait to see what transitional arrangements in the Immigration Rules when they are published.   It is also possible the Home Office will publish more detailed policy information on the five-point plan in early 2024, ahead of a Statement of Changes in Immigration Rules. The Government has recently confirmed that further information will be made available in January 2024 for at least some elements of the plan.
8.	Five-point plan	Do we have to increase the salary of Skilled Worker sponsored employees?	We need to wait to see what transitional arrangements are included in the Rules. A factsheet released by the Home Office confirms that the salary threshold changes will not be retrospective, which means that the salary of current Skilled Workers will not need to be increased immediately. It may need to be increased to meet the higher general threshold before an extension or settlement.
9.	Five-point plan	Will the general threshold salary requirement of £25,600 to apply for settlement from a Skilled Worker visa be increasing?	We need to wait for the Immigration Rules (or any more detailed policy statement) to be published to know whether any transitional arrangements will be applied, and the extent of them.
10.	Sponsorship	We are finding it hard to manage early careers applications and how to message that we can’t/won’t be able to sponsor.	This can be a tricky issue for employers because excluding a person from a recruitment process based on their immigration status carries the risk of an employment tribunal claim being made for indirect race discrimination. Historic employment tribunal case law says that recruitment decisions should be based on who is the best candidate for the job, and sponsorship considerations should not be assessed until a late stage in that process. While there is nothing stopping an employer from asking about an individual’s right to work status during the recruitment process (whether at the start of the application, or during the interview stage, or at the offer stage), it is important that: (a) the question is asked of all candidates; and (b) the employer is aware that a policy of automatically rejecting candidates based on their need from sponsorship may prompt an indirect discrimination claim.   The question of whether such a claim would be successful is currently untested under the current work visa regime. The historic case law that set the precedent – the 2009 case of Osborne Clarke Services v Purohit – is based on a very different work permit regime. The facts of that case may have been decided differently today. However, that case remains binding case law on tribunals, meaning that a policy of automatically rejecting candidates because they would need sponsorship will attract discrimination risk.
11.	Sponsorship	If an organisation doesn’t have a sponsorship licence and is likely to be able to fill a post by recruiting UK nationals, what is the position if they get an application from someone who would require sponsorship? Assuming the role would meet the criteria, are they required to progress the application and (if the non-UK national is the best candidate) potentially have to get a sponsor licence even though there are suitable applicants who wouldn’t require sponsorship?	See answer to Question 10 above.
12.	Sponsorship	Is it possible to obtain a sponsor licence for a newly established UK company? If so, are there any financial requirements (capital introduction, revenue etc)?	Yes, it is possible to obtain a sponsor licence as a start-up however one of the main documents that can cause a stumbling block is the requirement to have a current, corporate bank account with an institution registered with both the Financial Conduct Authority and the Prudential Regulation Authority.
13.	Sponsorship	We provided the contact details of sponsor workers when ending their sponsorship. Why do we still receiving that kind of request for providing their contacting details?	The Home Office is acting belatedly on these notifications so are double-checking if previous sponsors have any more recent contact details for the relevant workers. This is so they have the best chance of reaching them when they send notifications, e.g. to cancel the person’s immigration permission.
14.	Immigration Health Surcharge	Does the Immigration Health Surcharge Rate increase only apply to new applications? Are those who immigrate before 16 January 2024 locked into the current rates?	Those whose applications are made before the IHS rises will be charged at the current rate. Minimising IHS charges may be a factor in deciding what length of visa to apply for now. For further information, see our article here.
15.	Right to work	Will the online Home Office right to work check system be updated to include full duration of visas and visa types?	Holders of physical immigration documents including Biometric Residence Permits (BRPs), Biometric Residence Cards (BRCs) and passport stamps and stickers (vignettes) will need to register for a UKVI account to access the View and Prove service from the end of 2024. The full duration of visas and any work limitations for BRP and BRC holders are already available for employers to view online, however this is on a legacy system that will be replaced by View and Prove. It is not yet clear whether this system will remain in place for a short period into 2025 while individuals are in the process of registering for UKVI accounts, or if it will be switched off by the end of 2024. We would suggest that employers consider doing online checks on BRP and BRC holders now/throughout 2024 using the current system to spread out the administrative burden of doing a large volume of repeat checks at the end of 2024, and to ensure that the expiry date of permission is correctly flagged. See our article here for further information. Holders of other physical immigration documents will need to ensure they obtain a UKVI account before these cease to be accepted for right to work checks.   For all physical document holders, we would suggest that a UKVI account is obtained as soon as possible once the process for this becomes available, and by the end of 2024 at the latest. This will avoid the possibility of travel being disrupted due to there being no record of the individual on View and Prove.
16.	Right to work	Are IDVT checks worth it or does this cause duplication of work for employers when checking right to work for UK/NI nationals?	This is an assessment that has to be made by the business. Using IDVT can minimise the risk of an employer accepting a fraudulent document. See our article here for a discussion of some of the factors to consider.
17.	Right to work – EEA/Swiss nationals and their family members	For checking the expiry of immigration permission for colleagues with pre-settled status, I thought employers weren’t mandated to check current employees’ right to works at the time. Is this still the case, and is diarising the expiry of pre-settled status only relevant for new hires since the EU Settlement Scheme came into effect?	Employers were not required to check the UK immigration status of EEA or Swiss nationals whose employment started before 1 July 2021. A right to work check could be performed based on an EEA or Swiss passport or national ID card. For non-EEA family members of EEA or Swiss nationals, checking UK immigration documents issued under the EEA Regulations was also sufficient before 1 July 2021.   No right to work check expiry will have been recorded for EEA or Swiss nationals whose employment started on or before 30 June 2021, and who had or went on to obtain pre-settled status under the EU Settlement Scheme. This is because the employer will have had a permanent statutory excuse against liability for an illegal working civil penalty, with no follow-up right to work check required.   For non-EEA family members employed on or before 30 June 2021 however, an expiry reminder will have been recorded as those who would have been eligible for pre-settled status will have held documentation under the EEA Regulations with an expiry date attached to it.   The risk for employers is that it may come to light at some point that one or more of these individuals does not currently have the right to work, e.g. because they did not apply under the EUSS when required to do so. There is guidance in An Employer’s Guide to Right to Work checks on what is expected in this scenario.
18.	Electronic Travel Authorisation	Will the Electronic Travel Authorisation (ETA) apply to sponsored workers?	No it will not. It will only apply to individuals who do not have any other visa in place and who are seeking to enter the UK for visitor purposes (including short-term study up to 6 months), non-visa national entering the UK for up to three months as a Creative Worker or for transiting the UK.   The ETA is being rolled out on a phased basis and the Home Office’s guidance on this is available here.
19.	Visitors	The current visit guidance states that visitors are permitted to undertake activities relating to their employment overseas remotely whilst they are in the UK, such as responding to emails and answering phone calls. However, the main purpose of the trip must be for a ‘permitted activity’. How are you advising your clients to manage this conversation with the business? Also, does this apply to both visa nationals and non-visa nationals?	All visitors (visa nationals and non-visa nationals) must restrict their activities to permitted activities. In addition to recreational and family visits, there are a range of general activities permitted for business visitors, and more specific permitted intra-corporate activities. The full range of activities is set out in the Immigration Rules at Appendix Visitor: Permitted Activities.   The visit guidance you mention is being incorporated into the above Appendix for visa applications or non-visa national visitor entries to the UK from 31 January 2024. The new Rule simply states that a visitor may ‘undertake activities relating to their employment overseas remotely from within the UK, providing this is not the primary purpose of their visit’.   This new wording is helpful for individuals, as it confirms they are allowed to carry out any aspect of their overseas job remotely, provided they are primarily in the UK for another permitted activity.
20.	Permission to stay	If a sponsored worker was due to leave the UK prior to visa expiry but they have a medical emergency which results in them not being able to travel out of the UK prior to expiry – is there a form of leave available for this type of situation?	They can make an application for permission to stay outside the Immigration Rules.
21.	Future immigration policy	Is there any indication from Labour’s policies on immigration that they would make similar changes if they win the next General Election? Or is it likely they’d reverse these new changes?	Labour’s policy on immigration will not be made public until they publish their manifesto, however currently 85% of polled voters think that the current Government has lost control of immigration so the general statements from Labour on the issue are likely to be about controlling it. We don’t have a clear view yet however of their specific plans. It would seem unlikely that fee changes would be reversed under Labour due to the current state of public finances.

Related Item(s): Immigration

Author(s)/Speaker(s): Stephen OFlaherty, Tara Sayer,

Attachment: WHIIL QA 07122023