The Immigration Health Surcharge will increase from 16 January 2024 at the earliest. The new yearly rate for most affected applicants will jump from £624 to £1,035. Employers and affected applicants should consider applying ahead of the rise where possible.

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What is changing?

Subject to limited exceptions, individuals applying for time-limited UK immigration permission are required to pay an Immigration Health Surcharge (IHS). Payment of the charge allows access to the same NHS services that UK residents are allowed to access free of charge.

In July 2023, the Government announced an intention to increase the IHS, however the date of implementation was not stated.

Draft regulations now confirm the following rises will take place from 16 January 2024 at the earliest:

Immigration Category	Current IHS per year (GBP)	New IHS per year (GBP)
Student, Student dependant, Youth Mobility scheme and applications made by children under 18 on the date of application	470	776
All other relevant immigration categories	624	1035

What should employers and applicants consider in response to this change?

To minimise costs, sponsorship and immigration applications should be made ahead of the rise where possible. Applicants should also consider applying for the maximum immigration permission allowed for their circumstances.

Employers should also take the rises into account when budgeting for immigration-related costs going forward.

We’ll be covering this and other recent and upcoming changes in our Immigration Law Academy on 15 & 16 November, sign up here. If you have questions 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,

The Home Office has announced two important changes that impact employers who hold a licence to sponsor overseas workers. Authorising Officers and Key Contacts on sponsor licences will be asked to provide their national insurance number. Sponsors registered with Companies House will be asked to provide their Companies House reference number.

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Sponsors should make staff with responsibility for administering their sponsor licence aware of these changes so that the relevant information can be updated via the Sponsor Management System (SMS).

Requirement for Authorising Officer and Key Contact to provide their national insurance number

The Home Office has recently placed a notification on the SMS confirming that:

• From 8 October 2023, when an Authorising Officer or Key Contact is replaced on the sponsor licence, their National Insurance Number (NINO) must be provided.
• From the same date, if the Authorising Officer or Key Contact’s details are amended in the SMS, their NINO must be provided if it has not been provided already.
• An Authorising Officer or Key Contact who does not have a NINO, may be asked to provide evidence that they have applied for one (or asked to provide reasons why they do not have one and to provide evidence if an exemption is claimed).

A similar process was introduced in June 2023 for Level 1 users, see our earlier article for information.

Existing Level 1 Users, Authorising Officers and Key Contacts may choose to proactively update the SMS with details regarding their NINO. However, they are not required to provide NINO-related information unless another update is required.

NINO updates will be made in the SMS immediately and automatically unless there are other changes to details that are not eligible for automatic update.

A failure to provide NINO details when replacing or amending details of Level 1 Users, Authorising Officers and Key Contacts may impact the outcome of the request.

Request for sponsors to provide their Companies House reference number

The other recent Home Office notification confirms that:

• From 8 October 2023, sponsors registered with Companies House should add their Companies House reference number via the SMS at their earliest convenience.

This is a new development introduced by the Home Office.

Sponsors have an interest in proactively updating the SMS with their Companies House reference number, as it should allow the Home Office to efficiently check and process sponsor requests.

The Home Office has long promised an improved sponsorship system and within the notification itself, they suggest that adding the Companies House reference number will ‘aid the migration of sponsors to the transformed sponsorship system’.

Sponsors can follow the steps in SMS guide 2: manage your sponsorship licence and use the process to ‘amend your organisation’s details’.

Companies House reference number updates will be made in the SMS immediately and automatically.

If you have questions about these developments, please get in touch with a member of our Immigration Team.

Related Item(s): Immigration, Changes to SMS updating requirements for employers

Author(s)/Speaker(s): Andrew Osborne, Li Xiang, Angel Skyers,

The Migration Advisory Committee MAC released its full review of the Shortage Occupation List for the Skilled Worker route on 3 October 2023. Key recommendations include the abolition of the shortage list and to allow asylum-seekers with the right to work to occupy any job.

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Although at first glance these recommendations appear radical, the Migration Advisory Committee (MAC) has identified that the role of the Shortage Occupation List (SOL) has significantly diminished under the Skilled Worker (SW) route in comparison with the pre-Brexit Tier 2 (General) route.

SOL occupations were exempt from resident labour market testing (RLMT) requirement applicable to Tier 2 (General), saving sponsors effort and time on recruitment exercises that would likely be fruitless. Under the SW route, there is no formal RLMT necessary.

In its current form, the SOL may be used to pay overseas workers in shortage occupations less than the going rate in the UK labour market, and this can result in unjustifiable salary undercutting and exploitation of overseas workers. The MACs view is that the SOL is no longer fit for purpose, and that whether, and how, immigration policy should be used to address skills shortages should be considered afresh, possibly in conjunction with other bodies competent to examine labour market issues.

What has the MAC recommended?

The MAC has considered that only a small number of low-wage occupations should be included on the UK-wide or Scotland SOL following its review, if the Government chooses not to abolish the SOLs entirely. These are occupations where the going rate is lower than the general SW threshold of £26,200.

The MAC prefers entire abolition of the SOL, since giving low-wage occupations access to the SW route carries the following risks:

• Exploitation of migrant workers due to their immigration status being tied to their employer, making them vulnerable to unacceptable working conditions;
• The presence of low-wage workers (especially those accompanied by family members) resulting in a net fiscal cost to the UK;
• Lack of use in practice, due to the administrative burdens and application fees being too high for low-wage employers to shoulder.

Although not specifically mentioned by the MAC, the risk of impoverishment is also higher for low-wage sponsored workers, for example where a sponsor requires them to repay immigration-related costs.

The MAC has made a total of 13 recommendations across six themes.

UK-wide Shortage Occupation List

The following UK-wide SOL has been recommended for implementation as soon as possible:

SOC Code	Title	RQF Level	Sector	Conditions
3111	Laboratory technicians	3-5	Professional, scientific and technical activities	Only Laboratory technicians with 3 or more years’ full-time experience
3217	Pharmaceutical technicians	3-5	Human health and social work activities
5312	Bricklayers and masons	3-5	Construction
5313	Roofers, roof tilers and slaters	3-5	Construction
5319	Construction and building trades n.e.c.	3-5	Construction	Only the job title ‘retrofitters’
6139	Animal care services occupations n.e.c.	3-5	Other service activities	Only the job titles ‘racing grooms’, ‘stallion handlers’, ‘stud grooms’, ‘stud hands’ ‘stud handlers’ and ‘work riders’
6145	Care workers and home carers	1-2	Human health and social work activities	Private households or individuals (other than sole traders sponsoring someone to work for their business) cannot sponsor SW applicants
6146	Senior care workers	3-5	Human health and social work activities

Scotland-only Shortage Occupation List

The following occupations are recommended for a Scotland-only SOL. No occupations are recommended for a Northern Ireland-only or Wales-only SOL.

SOC Code	Title	RQF Level	Sector	Conditions
1213	Managers and proprietors in forestry, fishing and related services	3-5	Other service activities	Only the job title ‘fishing boat masters’
5236	Boat and ship builders and repairers	3-5	Manufacturing

Reclassification requests

The MAC has recommended that sommeliers are reclassified within their existing SOC Code, 9273 (Waiters and waitresses) as an RQF 3+ role, provided the individual has three or more years’ full-time experience in the role. This would allow sommeliers to be sponsored under the SW route. This role is not recommended for inclusion on the SOL, and the MAC has warned employers against using this addition to sponsor waiters and waitresses.

A request to enable ceiling fixers (SOC code 8149, Construction operatives n.e.c.) has been refused due to insufficient evidence being provided by stakeholders on the training requirements for this role.

SOC2020 equivalent recommendations

The current SOL review is based on the 2010 version of the Standard Occupation Classification (SOC) for the UK. This is because of unresolved data issues with the 2020 version of the SOC.

To assist the Home Office to recalibrate the SOL once it is able to adopt SOC2020, the MAC has set out which SOC2020 codes it considers to be equivalent to the SOC2010 codes recommended for inclusion on the SOL.

Recommendations for the role of the SOL in the immigration system

Three recommendations are made in this area:

• To remove the SOL going rate discount (currently set at 80% of the going rate for the occupation) and to make all occupations ineligible for the SOL if they are on a national pay scale, or where the going rate is above the general salary threshold for the SW route;
• To allow asylum seekers who have the right to work to be able to work in any occupation, rather than them only being able to undertake roles on the SOL; and
• To update the sponsorship requirements for the Creative Worker route, to:
  • Remove reference to the SOL;
  • Remove the resident labour market testing requirement;
  • Allow any SW route occupation to be eligible for sponsorship; and
  • Add a minimum salary threshold for the route.

Recommendations for future Shortage Occupation List reviews

Five recommendations are made in this area:

• If the Government is against allowing employers to pay below the SW general salary threshold, the SOL should either be abolished or heavily reformed;
• If the Government wishes to retain the SOLs in their current form, the MAC would propose to conduct a minor review in Spring 2024 unless otherwise directed;
• If the SOL remains in place, that the name is changed to ‘Immigration Salary Discount List’ to accurately describe its function;
• For the MAC not to consider RQF Level 1-2 occupations in minor SOL reviews, unless the Government confirms an alternative approach; and
• For the Government to confirm by the end of January 2024 that it will move to SOC2020 and for the occupation-based salary thresholds for the SW route to be updated in the Spring 2024 Immigration Rule changes. The MAC recommends suspending SOL reviews until these changes have been made.

What impact would these recommendations have in practice?

The impact of the recommendations will depend on the extent to which they are adopted by the Government, but some possible factors are discussed below.

Higher salary and application fee costs for sponsoring Skilled Workers

If the Government implements the reduced scope of the SOL without abolishing the list entirely, sponsors will generally be expected to pay a higher salary and application fees to sponsor workers under SW-eligible occupations. Sponsors of workers in occupations remaining on the SOL may in some cases be allowed to benefit from the lower general salary threshold of £20,960 that applies to shortage occupations, unless the going rate or hourly rate calculation is higher than this.

If the list is abolished altogether, the current discount on the general salary threshold for shortage occupations will be removed, meaning that unless a discounted salary option otherwise applies, sponsors will need to pay at least the going rate for the occupation, £10.75 per hour or £26,200, whichever is highest.

Review of salary rate discounting across Skilled Worker route tradeable points options

It is also possible the Government will review the logic for discounting salary rates for other SW tradeable points options, as these also currently undercut prevailing going rates.

There may be a justification for discounting salary under the new entrant option, as SW going rate thresholds reflect are set at the lowest quarter of the salary bands for the relevant occupations, and new entrants may receive lower than this in the market due to their lack of experience.

Immigration Skills Charge exemptions

The Government may see fit to review the justifications for exempting certain occupations from paying the Immigration Skills Charge.

Removal of reference to Shortage Occupation List in Creative Worker category

The Creative Worker category currently exempts sponsors of creative workers in SOL occupations from the requirement to be satisfied they will not be displacing a suitable settled worker by recruiting a migrant worker. Removal of this requirement would lift an administrative burden from sponsors which the MAC does not feel is effective in protecting the resident labour market and would be more in line with the abolition of RLMT under the SW route.

Work rights for asylum seekers

It would seem unlikely that the Government will accept the recommendation to allow asylum seekers with work rights to carry out any job rather than shortage occupations only, as this might be seen as a factor encouraging irregular migration. We anticipate some form of occupational restriction will remain in place for this group.

What are the next steps?

The Home Office will now consider the report and publish its response. Changes to the Immigration Rules implementing the Government’s position will then follow, most likely in the regular Spring updates to the Rules in 2024.

If you are an employer with questions about the report, please get in touch with a member of our Immigration Team. You may also wish to consider signing up for our next Immigration Law Academy, which is being held on 15 and 16 November 2023.

Related Item(s): Immigration

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

It is now over two years since the main application deadline for applications to the EU Settlement Scheme (EUSS). However, recent changes to policies on pre-settled status extensions, late applications and ongoing right to work considerations mean that understanding the EUSS is still very relevant for employers. In this article we flag some aspects for employers to be aware of and act on.

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Reason 1: automatic extension of permission for pre-settled status holders

The Home Office has recently confirmed that from September 2023, any individual who holds pre-settled status under the EUSS will receive an automatic two-year extension without needing to make a further application. They will receive confirmation from the Home Office of the extension directly, presumably by email notification.

The extension should be visible online by the time a repeat online right to work check is required, however it may be necessary for individuals to contact the EU Settlement Scheme Resolution Centre where this has not happened before the date their existing pre-settled status is stated to expire.

Points for employers to note:

• Staff who deal with right to work checks should be made aware of this change;

• Internal procedures for right to work checking should be updated to signpost individuals to generate a share code before the expiry of their pre-settled status, rather than signposting them to make a further application under the EUSS; and

• It is likely that the Employer’s guide to right to work checks will be updated in the near future to provide further guidance to employers regarding the automatic extension of pre-settled status.

Reason 2: Pre-employment right to work checks

Our clients are still encountering situations where a potential new hire presents them with a residence document issued under the regulations that governed residence for EEA/Swiss nationals (EEA nationals) and their family members before the end of 2020. These documents have not been valid evidence of right to work since 1 July 2021.

Most commonly in our experience, holders of permanent residence cards or documents have erroneously thought they did not need to apply under the EUSS because they had permanent residence. Permanent residence in accordance with EU law is not the same as indefinite leave to remain granted under the Immigration Rules. Unless a person’s endorsement states ‘indefinite leave to remain’, a late application under the EUSS may be required to regularise their immigration status.

To complicate matters further, holders of indefinite leave based on EU law rights will have had this issued to them in 2006 at the latest. An indefinite leave endorsement can only be accepted for a compliant right to work check if it is in a current passport. Due to the passage of time, the passport of an EU law-related indefinite leave holder will now have expired. They will need to obtain a biometric residence permit and allow the employer to carry out an online right to work check on this.

Points for employers to note:

• Failure to apply under the EUSS commonly comes to light when a person changes jobs;

• There are still some people who last left the UK with permanent residence status within the last five years and who may be eligible to make a late EUSS application – their potential eligibility may come to light at the point at which they want to return to the UK for work;

• Permanent residence is not the same as indefinite leave – if in doubt about documents presented for right to work checks, seek specialist immigration advice; and

• Check new joiners’ right to work sufficiently ahead of their start dates to enable any issues with right to work documents to be identified and addressed.

Reason 3: late applications for new or existing employees

If a potential new joiner needs to make a late application under the EUSS, an employer will not be able to complete a compliant right to work check until they have been shown a certificate of application (CoA) to the EUSS issued by the Home Office and have also received a positive verification notice (PVN) from the Employer Checking Service.

Previously, the certificate of application was issued shortly after receipt of the application. However, since 9 August 2023, the CoA will not be issued until after the Home Office has assessed and accepted that there are reasonable grounds for making a late application. Depending on volume of applications and caseworker resourcing, this potentially means that it will take longer for a CoA to be issued.

The Home Office’s EUSS caseworker guidance has also been updated from 9 August 2023 to take a more narrow approach to what caseworkers should consider reasonable grounds for making a late application. Whereas previously applicants were to be given the benefit of the doubt based on information provided with the application, under the revised guidance they are required to prove their reasons on the balance of probabilities and to provide objectively verifiable evidence in support of them.

An employer may also have existing employees in their workforce who have failed to make an application under EUSS when required.

Although employers are not required to make retrospective right to work checks on EEA national or family member employees who joined before 1 July 2021, it may nevertheless come to light that a person has failed to apply. The Employer’s guide to right to work checks still currently says that if an employee believes they are eligible under the EUSS, the employer can signpost them to apply and ask them to do so within 28 days. The employer is only expected to take steps to terminate the person’s employment if they do not make an application within 28 days. The new policy on validation of applications may mean that the employer will not have access to a CoA and be able to obtain a PVN as swiftly as before, so this could throw up some practical issues around whether and when an employer is expected to take termination action if an employee is unable to produce a CoA within 28 days.

Points for employers to note:

• It may take longer for a CoA to be issued, and therefore for right to work to be established;

• More applications are likely to be rejected as invalid due to the more restrictive policy on showing reasonable grounds for lateness;

• Employers and individuals may need to weigh up whether it is tactically preferable to make a late application under the EUSS or to apply for alternative immigration permission, especially if the person is not already in the UK or there is time-pressure on their start date;

• Where an EUSS application is rejected due to lack of reasonable grounds for lateness, an individual may need to consider whether to reapply with more substantial evidence, or to regularise their UK immigration status another way, e.g. as a joining family member under EUSS if eligible, or in another route such as sponsored employment; and

• When the Employer’s guide to right to work checks is next updated, it could be revised to take a more restrictive stance on individuals who have failed to apply. Employers may therefore wish to consider whether to take steps to identify any such individuals in their workforce and advise them to apply.

If you have questions about the topics covered in this article, please get in touch with a member of our Immigration Team.

Related Item(s): Immigration

Author(s)/Speaker(s): Supinder Singh Sian, Clara Le Chevallier, Tara Sayer, Kathryn Denyer,

From the start of 2024, the maximum civil penalty for employing an illegal worker will be raised from £20,000 to £60,000. The Home Office also intends to consult on strengthening sponsor compliance action where illegal working is found. Employers should act now to bolster their right to work checking processes to minimise the risk of incurring penalties and being subject to sponsor compliance action.

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On 7 August 2023, the Home Office announced the planned increases, which have been brought forward as part of the strategy to deter small boat crossings and, in turn, illegal working and renting.

What changes have been announced?

Illegal working civil penalties cover the situation where an employer unknowingly employs a person who does not have the required permission to perform the job in question.

From the start of 2024, the overall maximum illegal working civil penalty will be increased from £20,000 to £60,000. In addition, the starting point for a first breach will be increased from £15,000 to £45,000. The amounts applied are per illegal worker identified.

During 2023, the Home Office will also launch a consultation on options it is considering on more stringent compliance action against Points-Based Immigration System sponsors who have been found employing illegal workers.

What other sanctions are there for illegal working?

There is a separate criminal offence where an employer knows, or has reasonable cause to believe that they are employing an illegal worker. The offence carries a maximum sentence of five years’ imprisonment and/or an unlimited fine.

An individual who works illegally also commits a criminal offence, which is punishable through up to six months’ imprisonment and/or a fine. Their earnings may also be confiscated as proceeds of crime.

What can employers do to minimise the risks to their business of illegal working?

An employer is able to obtain a statutory excuse against liability for an illegal working civil penalty by carrying out right to work checks in line with Home Office guidance.

Complying with the guidance is sometimes not straightforward. There are various potential pitfalls that employers can encounter operationally and when seeking also to comply with employment law. We have covered some of these in the below articles:

• Immigration restrictions on employment in the UK and consequences of breach
• Compliance implications for employers when sponsored workers change role
• Home Office issues important update to right to work guidance for employers
• Employment law and immigration law: two awkward siblings

Actions employers can consider undertaking to minimise the risks of being liable for civil penalties and being subject to sponsor compliance action due to illegal working include:

• 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.

Many employers are increasingly reliant on their sponsor licences due to ongoing skills shortages in the UK labour market. Carrying out broader periodic audits of sponsor licence compliance and having a training program for staff involved in sponsor licence administration is therefore also recommended.

If you require assistance with right to work or sponsor licence compliance for your business, our sponsor compliance unit can help. Please get in touch with a member of our Immigration Team for further information.

Related Item(s): Immigration, Prevention of Illegal Working

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

We have produced a useful factsheet on the visa route designed for overseas workers who have been temporarily assigned to work in the UK.

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Purpose

This visa route is designed for overseas workers who have been temporarily assigned to work in the UK. Workers must be assigned to a UK business linked to their employer overseas. This route was was previously known as the intra-company transfer category or ‘ICT’.

The job offer must be from a Home Office approved UK sponsor with a licence to assign Certificates of Sponsorship (‘CoS’) under the Senior or Specialist Worker route. The role must be in an eligible skilled occupation.

A sponsored worker on the Senior or Specialist Worker route can work in the UK for their sponsor in the job they have been approved to fill.

Senior or Specialist Workers may also do voluntary work and study in the UK. If they were granted permission before 11 April 2022 under the Senior or Specialist Worker or ICT route, they can also undertake supplementary employment provided specific requirements are met.

Qualifying overseas business link

The UK sponsor licence holder must ensure that they are linked to the employer overseas by common ownership and control or by a joint venture agreement to an overseas business.

Elegibility requirements – Points Test

Applicants must score 60 mandatory points from the table below.

An offer of a job from a licenced sponsor (20 points)

The sponsor must be a Home Office approved sponsor licence holder for the Senior or Specialist Worker route.

There must be a genuine vacancy.

The applicant must have an assigned Certificate of Sponsorship (electronic work authorisation assigned by licenced sponsors), which contains the details of their job offer.

The job must be at or above the minimum skill level RQF 6 (20 points)

The job must be skilled to at least a bachelor’s degree or equivalent and listed by the Home Office as an eligible occupation.

The Home Office must accept that the occupation selected by the sponsor accurately reflects the job the applicant has been offered.

The salary must be at the required level (20 points)

An applicant must earn a minimum salary of at least £45,800 or the going rate for their occupation, whichever is higher. Guaranteed basic gross pay and guaranteed allowances for the duration of the UK employment may be counted towards the required salary level.

Overseas work requirement

All applicants must be currently working for an overseas business of the sponsor group and, if the applicant’s salary is below the ‘high earner’ threshold of £73,900, they must have worked for the sponsor group, whether in or out of the UK for a cumulative period of at least 12 months.

Non-points-based eligibility criteria

To be eligible under the Senior or Specialist Worker route, in addition to meeting the specific requirements listed above, the applicant must:

• Meet suitability criteria in terms of their previous immigration compliance, any criminal history or other character-related issues;
• Hold a certificate confirming they do not have active TB, if they have been living in a high-risk TB country for at least six months before they apply and the length of their assignment in the UK is more than six months;
• Meet a financial requirement through holding at least £1,270 in savings or having their employer certify that they will be maintained up to this amount for the first month of their employment (this requirement does not apply if they have been living in the UK for at least 12 months already);
• If their job is subject to the Academic Technology Approval Scheme (ATAS), provide an ATAS certificate.

Maximum length of assignments

An applicant earning less than £73,900 must not hold permission under the Global Business Mobility routes (not just Senior or Specialist Worker or the previous Intra-Company Transfer routes) totalling more than five years in any six-year period.

A high earner earning £73,900 or more must not hold permission totalling more than nine years in any ten-year period.

Sponsors must take these maximum periods into consideration when deciding the duration of sponsorship.

Extensions and switching

If the applicant is already in the UK holding immigration permission in a different route, they can switch to the Senior or Specialist Worker route with limited exceptions, e.g. if they are in the UK as a visitor or in another short-term immigration category.

Immigration permission can be extended provided the ‘maximum length of assignments’ requirement is not breached.

Settlement

This route does not lead to settlement. A person with permission as a Senior or Specialist Worker can choose to switch into the Skilled Worker route (or various other immigration routes that lead to settlement) whilst still in the UK if they meet the necessary criteria.

Dependants

A Senior or Specialist Worker can be accompanied or joined by their spouse, civil partner or unmarried partner (where they have lived together for at least two years) and dependent children aged under 18 when they first apply. Unless the dependant has been living in the UK for at least 12 months already, they will also need to meet a financial requirement of £285 for a partner, £315 for the first child dependant and £200 for each additional child dependant. Dependants must meet suitability criteria, and a TB certificate may also be required.

Visa application procedure

Provided the preliminary steps such as having a qualifying overseas business link and ensuring all of the requirements for the sponsor and the applicant are met, the process is:

1. Certificate of Sponsorship

• This is assigned online by the sponsor via the Sponsor Management System.
• The sponsor will need to request an allocation of these from the Home Office each year and have one available to assign to the applicant.

2. Visa

• The individual will need to apply for the Senior or Specialist Worker visa within three months of the Certificate of Sponsorship being assigned.
• The application consists of the following stages:

a. Submitting an online application form and making all the relevant payments;

b. Attending an appointment to enrol biometric information and to submit supporting documents (EEA nationals with a biometric chip passport do not need to complete this stage if they have used the UK Immigration: ID Check app to verify their identity).

An applicant attending an appointment overseas must normally do so at the nearest Visa Application Centre in their country of residence.

The process for an applicant who is already residing in the UK will vary depending on whether they hold their immigration status digitally or on a physical Biometric Residence Permit.

How we can help

We are a full service, highly ranked and recognised law firm mwith commended immigration specialist lawyers who have a breadth of experience with sponsored work visa applications. We build long-
term relationships with our clients to help them with all their legal needs throughout the life of their immigration journey in the UK.

Related Item(s): Sponsoring Migrant Workers, Immigration

Author(s)/Speaker(s): Supinder Singh Sian, Naomi Hanrahan-Soar,

Attachment: Lewis Silkin – Global Business Mobility-Senior or Specialist Worker factsheet

Citizens of Dominica, Honduras, Namibia, Timor-Leste (East Timor) and Vanuatu are required to apply for UK visitor visas with effect from 15:00 BST on 19 July 2023 and direct airside transit visas with effect from 20 July 2023. A four-week transition period applies for individuals who hold a confirmed travel booking arranged before this time.

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The changes have been made through Statement of Changes in Immigration Rules HC 1715 and the Immigration (Passenger Transit Visa) (Amendment) Order 2023.

What is the impact of these changes?

Citizens of the affected countries who intend to visit or transit the UK airside on their way to a further destination must now make an application to do so. A visa is now also required for Creative Workers with engagements in the UK totalling three months or less where this was not necessary previously.

A visa fee will be payable. The fees for the most commonly used visit and transit visas are currently as set out below, but are due to rise in the near future, as confirmed in a recent Government announcement.

Application type	Current fee (GBP)
Visit – short up to six months	100
Visit – long up to two years	376
Visit – long up to five years	670
Visit – long up to ten years	837
Transit visa (direct airside transit)	35
Transit visit visa (landside transit)	64
Creative Worker	259

 

The current average processing time for visitor, transit and Creative Worker visa applications is in line with the Home Office’s service standard of three weeks.

Applications will need to be made to the relevant Visa Application Centre (VAC) listed on GOV.UK. The Government has confirmed that a new VAC will be set up in Honduras to process UK visa applications, with the first appointments available from 26 July 2023.

What are the transitional arrangements?

Citizens of the affected countries may still travel to the UK without a visa if they have a travel booking that was made before 15:00 BST on 19 July 2023. They must arrive on or before 16 August 2023.

Affected individuals without an existing confirmed travel booking who were intending to travel within the next three to four weeks will need to defer their arrangements. Future visitors will need to factor visa preparation, cost and processing times into their plans.

Why have these countries been added to the visa national list?

According to a Written Ministerial Statement by the Home Secretary, Suella Braverman, the countries have been added to the list for various reasons.

The Home Office has concerns about the citizenship by investment schemes operated by Dominica and Vanuatu leading to citizenship grants to individuals known to pose a risk to the UK.

Honduras and Namibia have been added to the list after the Home Office observed a significant increase in asylum claims being made at the border by citizens of these countries.

In the case of Timor-Leste, the Home Office has observed an increase in non-genuine visits by the country’s citizens, with individuals working illegally in the UK or going on to make a fraudulent application as a family member under the EU Settlement Scheme.

If you have questions about these developments, please get in touch with a member of our Immigration Team.

Related Item(s): Immigration

Author(s)/Speaker(s): Naomi Hanrahan-Soar, Sam Koppel, Li Xiang, Kathryn Denyer,

On 17 July 2023 the Home Office published a Statement of Changes in Immigration Rules, with measures restricting Students switching into work routes becoming effective from 15:00 BST on the same date. Changes to the Skilled Worker Shortage Occupation List are due to go live on 7 August 2023, and changes to the EU Settlement Scheme (EUSS) on 9 August 2023

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This article summarises some of the changes in HC 1496 that are most likely to be of interest to employers.

Student-related changes

Significant reforms have been made on switching from Student into work routes in-country, and on Students being accompanied by dependants.

Students switching into work routes (including as a dependant)

With effect from 15:00 BST on 17 July 2023, Students are only allowed to switch into work routes (including but not limited to the Skilled Worker, Global Business Mobility, Global Talent, Scale-up, Government Authorised Exchange and Creative Worker routes) if one of the following applies:

• The Student has completed the course of study they are sponsored for; or
• The Student is studying a degree level or higher course and their Certificate of Sponsorship shows a start date no earlier than their course completion date; or
• The Student is studying a PhD and their Certificate of Sponsorship (CoS) shows a start date no earlier than 24 months after the start of the PhD course.

Students must also meet similar requirements if they wish to switch into being a dependent partner of someone already on a work route. This change appears to recognise that the already very restrictive Rules on student dependants mean that some partners may come to the UK on separate Student visas. It is now more logistically difficult for such partners to transition into a work route in-country if either of them has not completed their course. A partner who defers becoming a dependant in a work route that leads to settlement will have their eligibility for settlement delayed, however they will have to weigh this up against the disruption and cost of obtaining fresh entry clearance.

On the question of how to evidence course completion, updated sponsor guidance simply states that the sponsor must ‘carefully check’ if a proposed applicant is eligible to switch in-country. However, updated caseworker guidance suggests that the submission of a results transcript or letter from the institution confirming course completion should clarify the position if the caseworker is unsure whether the switching criteria are met. For PhD students, caseworkers will use the course start date listed on their Confirmation of Acceptance for Studies to check whether there is at least 24 months between the start of the course and the start date stated on the CoS.

The practical impact of the switching restrictions for work route sponsors is that they will either need to defer an affected applicant’s start date until they can meet one of the three conditions above, or make arrangements for the applicant to depart the UK and apply for fresh entry clearance. Students who are eligible to become a partner dependant of a person on a work route but are ineligible to switch would also need to make a fresh entry clearance application.

The Home Office does have discretion to waive switching criteria outside the Rules, however this is normally reserved for exceptional circumstances.

The Student switching policy is stated to be aimed at reducing net migration. Certainly the cost and inconvenience of international travel and the requirement to obtain a defined CoS for Skilled Worker applicants may have some effect, particularly when combined with the recently announced immigration fee rises. However, a previous Home Office review has found that demand for immigration to the UK is inelastic when cost rises.

The policy also creates otherwise-unnecessary international travel for applicants who opt to go abroad to apply for entry clearance, so its appropriateness may also be questioned on environmental grounds.

New restrictions on Student dependants

For students on postgraduate courses starting from 1 January 2024 (and subject to exceptions for government-sponsored Students and children born in the UK), dependants will only be allowed if the Student is on a PhD or other doctoral course, or is a post-graduate course confirmed by the sponsor as being a research-based higher degree.

A definition of ‘research-based higher degree’ has been added to the Immigration Rules, and means ‘a postgraduate programme comprising a research component (including a requirement to produce original work) that is larger than any accompanying taught component when measured by student effort’. What this means in practice is that taught Masters students will no longer be eligible to be accompanied by dependants.

These changes have been incorporated into the Immigration Rules from 15:00 on 17 July 2023, but will only affect the dependants of students whose course starts on or after 1 January 2024.

Note that partners and minor children who are excluded from eligibility as dependants under the Student route will also be ineligible to apply as dependants under the Graduate route. This, combined with the effect of the planned application fee increases may mean that more Students will push for sponsorship under the Skilled Worker route directly after their studies.

Timing of Student-related changes

Immigration Rule changes are normally published at least 21 days before they are implemented. Although the changes to student switching were made with immediate effect to prevent a surge of applications, it was originally announced on 23 May 2023. The change restricting the eligibility of Student dependants was included in the same announcement. The Government’s view is that the announcement provided sufficient advance warning.

Skilled Worker

Additions to shortage occupation list

An expansion of the Shortage Occupation List (SOL) has been made, covering immigration applications submitted on or after 7 August 2023.

The following construction industry occupations are added to the list:

• 5312 Bricklayers and masons
• 5313 Roofers, roof tilers and slaters
• 5315 Carpenters and joiners
• 5319 Construction and building trades not elsewhere classified
• 5321 Plasterers (including classifying dryliners as plasterers, enabling them to be eligible for sponsorship)

Two fishing industry occupations are also added:

• 5119 Agriculture and fishing trades not elsewhere classified – fishing industry jobs only
• 9119 Fishing and other elementary agriculture occupations not elsewhere classified – deckhands only, working on fishing vessels nine metres long or more, and where the job requires at least three years’ full-time experience as a deckhand, and the experience must have been gained while working lawfully

The Migration Advisory Committee (MAC) is currently undertaking a full review of the SOL and anticipates publishing its report in Autumn 2023. The Home Office will then consider the MAC’s recommendations, with updates to the SOL likely to be made in Autumn 2023 or Spring 2024.

Longer immigration permission for GPs for speciality training

GPs for speciality training will be granted immigration permission expiring four months after the end date of their Certificate of Sponsorship, to enable them time to obtain further immigration permission as a GP with a licenced sponsor.

EU Settlement Scheme

Various changes to the EUSS are in effect from 9 August 2023. The two changes of most interest to employers are outlined below.

Automatic extension of pre-settled status

Provision is made to allow pre-settled status to be extended automatically without the need for a valid application. This change is intended to be the first step in implementing findings of the successful legal challenge mounted by the Independent Monitoring Authority.

The new Immigration Rule simply states that the pre-settled status of an individual may be extended, regardless of whether the person has made a valid application to the Home Office for it.

A press release issued by the Home Office provides further detail, confirming that an automatic two-year extension will be granted to individuals with pre-settled status who have not applied for settled status. They will be notified of the extension directly and their digital status will be updated. Amongst other things, this means they will be able to prove their status to an employer using an online right to work check.

There is no confirmation in the press release about whether a visa national who holds pre-settled status as a family member of an EEA/Swiss national will automatically receive a new physical Biometric Residence Card confirming their extended permission. They may have to apply for one to be able to continue to prove their immigration permission to an airline or other carrier when travelling to the UK.

Although this is not yet provided for in the Rules, the press release confirms that the Home Office intends to put a process in place to automatically convert pre-settled status holders to settled status if they are eligible for it. The Home Office states that safeguards will be in place to prevent grants to individuals who are not eligible, which flags that an appropriate process has not been finalised yet.

The proposed settlement conversion process will use automated checks. Presumably these will include checks on HMRC and DWP records, as well as Passenger Name Record data to identify instances of international travel. This raises a question around what the consequences will be for individuals who are assessed to have broken the continuity of their residence in the UK and are therefore not eligible for settled status.

The Home Office’s position on this is not yet known and may have an impact on employers. If an affected individual will be required to regularise their status under another route or leave the UK, then employers may be approached for sponsorship or other assistance, or may need to consider recruiting a replacement worker.

Grounds for making a late application to be assessed at validation stage

Whether an applicant under the EUSS has reasonable grounds for making a late application will become an application validity requirement rather than eligibility requirement. This will mean that some applications will not proceed to full assessment if the grounds for making a late application are not accepted. A potential impact of this for employers is that where an existing employee has an EUSS application assessed as invalid, they may need to apply for alternative immigration permissionor leave the UK. Depending on the circumstances, they may not have permission to work while an alternative application is considered.

If you have any queries about these developments, 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, Kathryn Denyer,

We have produced this factsheet on the International Sportsperson Dependent visa.

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Purpose

The purpose of this visa is to enable the partner and children of an International Sportsperson to accompany them in the UK.

Eligibility

To be eligible, an applicant must be either a:

• Married partner / civil partner;
• An unmarried partner, having lived together in a relationship for at least two years prior to the application;
• A biological child;
• An adopted child; or
• In some circumstances, a child for whom the International Sportsperson is a step-parent or has parental responsibility.

Required evidence

This list is not exhaustive. A tailored list of documents will be provided when we assist with the application. Supporting documents will be reviewed by our team, who will advise and confirm their suitability.

Any documents that are not issued in the English language must be compliantly translated by a certified translator in a specific format. We can arrange compliant translations on request.

Applicant	Documents
Married partner / Civil partner	Original state-issued marriage or civil partnership certificate.
Unmarried partner	Evidence of living together in a relationship akin to a marriage for at least two years, such as: Tenancy agreements / mortgage statements; Invoices; Bank statements or bank letters; Government issued documentation; Utility bills; Medical documents; Insurance policies. At least six documents from the above list should be provided, spread evenly across the two-year period. These can be in joint names or in separate names provided they are to the same residential address.
Biological child	Biological children aged under 18 must provide the following: Original state-issued birth certificate showing the names of both parents; and A letter of consent signed by both parents (we will provide a template). If the child is aged between 16 and 18 years old, they are subject to an additional requirement to demonstrate that they are not leading an independent life. We can advise further on this if needed. Additional documents must be submitted if the child has one surviving parent, or one parent has sole responsibility for them, or there are serious and compelling reasons to grant the application.
Adopted child	Adopted children under the age of 18 must provide the following: Original birth certificate Adoption order and / or certificate and A letter of consent signed by both parents (we will provide a template). We can advise further if the above documents are not available or if there are alternative documents.

Process overview and timings

If a partner or child is in the UK with permission other than as a visitor or certain other short-term categories, they may apply in the UK. Otherwise, the application must be made from a country outside of the UK, such as the country of nationality or a country where the applicant has a legal right to reside (not as a visitor).

The process is different depending on the nationality of the applicant. A brief overview of the process is set out in the table below.

Attending a biometrics appointment at a visa application centre (VAC)	Using the Home Office app (currently available only to EEA nationals with a chipped biometric passport)
1. Draft and submit an online application form. 2. Book and attend a biometrics appointment with passport. 3. Allow two to four weeks to receive a decision if applying from outside the UK, or four to eight weeks if applying in the UK (unless using priority services).	1. Scan passport and provide biometrics using the app. 2. Draft and submit an online application form. 3. Allow four to eight weeks for a decision (unless using priority services).

Application costs

Application costs are incurred per applicant and the total cost depends on how long the applicant intends to stay in the UK. The below costs are based on a stay of 12 months or longer.

• Visa application fee: £625;
• Immigration Health Surcharge fee incurred per year of stay: £624 for an adult and £470 for a child;
• If applicable, additional VAC fees such as an appointment fee and courier fees: This can vary up to £200;
• Priority services: This can vary from approximately £250 to £1200*.

Related Item(s): Immigration, Sports Immigration & Transfers

Author(s)/Speaker(s): Stephen OFlaherty, Despina Stoimenidi, Margaret Smith,

We have produced a useful factsheet on the Innovator founder requirements.

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Purpose

This visa route is designed for individuals seeking to establish a business in the UK based on an innovative, viable, and scalable business idea they have generated, or to which they have significantly contributed. The applicant must have a key role in the day-to-day management and development of the business they set up in the UK.

Applicants can either be the sole founder of the business or apply as a member of an entrepreneurial team. The business can already be trading at the time of application. In all cases, the applicant must be part of the founding team.

Eligibility requirements – points test

An applicant must secure 70 points from the categories below, of which 50 must either be under the ‘New Business’ criteria or under the ‘Same Business’ criteria, but not both.

New business	50 points
Business plan	30
Business venture is innovative, viable and scalable	20
Same business	50 points
Previous permission was in Innovator Founder, Innovator, Start-up or Tier 1 (Graduate Entrepreneur) route and they continue to pursue a business with an approved endorsement	10
Business is active, trading, and sustainable and demonstrates significant achievements against the business plan	20
Applicant is active in the day-to-day management and development of the business	20
Ability to speak English language to an approved standard	10
The minimum level is CEFR Level B2 in all four language elements: reading, writing, speaking and listening. The applicant can demonstrate they meet this requirement in a range of ways, including (but not limited to) being from a majority English-speaking country, holding a degree taught in English or passing a Home Office approved English language test.
Financial requirement	10 points
Those applying for entry clearance or who are applying for permission to stay and have been in the UK for less than 12 months at the date of application, must have accessible funds of at least £1,270. Funds must be held for a continuous 28-day period and evidenced in a compliant format.

Length of and conditions of immigration permission

This route offers a maximum period of stay of three years per application. There is no maximum time limit in the route and it can lead to settlement in the UK.

An applicant is allowed to work in the endorsed business. They can also be employed in other roles with a skill level at or above level 3 on the Regulated Qualifications sFramework (A-level equivalent) and may study in the UK.

Endorsing bodies

An applicant must have an appropriately issued endorsement from an endorsing body approved by the Home Office for this route.

An endorsing body must inform the Home Office of specified concerns it has about a migrant’s business progress, checkpoint compliance or immigration condition compliance. Immigration permission as an Innovator Founder will be cancelled if an endorsing body withdraws its endorsement of an individual migrant or if it loses its status as an endorsing body for this route.

Endorsement criteria for applicants will differ depending on whether the applicant is relying on a ‘new business’ or the ‘same business’.

“New business” endorsement can occur where the application is an initial application or an extension application, and the applicant is pursuing a different business venture from the one that was assessed in the endorsement which led to their previous grant of immigration permission.

“Same business” endorsement can occur where the applicant previously had their business idea endorsed under the new business criteria (or on the Startup or Tier 1 (Graduate Entrepreneur) and the applicant is still pursuing the same business venture. Applicants who changed their business venture with approval from their endorsing body at their last checkpoint will need to meet the “same business” criteria when they apply.

In all cases the endorsement must be obtained before making an application. This means that an applicant who is in the UK with existing immigration permission must ensure they have received an endorsement and made an application under the Innovator Founder route before their current permission expires, so that they can avoid overstaying.

Endorsement criteria for initial and extension applications

New business endorsement criteria

Same business endorsement criteria

Innovation: the applicant has a genuine and original business plan that meets new or existing market needs and/ or creates a competitive advantage. Viability: the applicant has, or must be actively developing, the necessary skills, knowledge, experience and market awareness to successfully run the business. This criterion will only be met if the business plan is realistic and achievable based on the applicant’s available resources. Scalability: there is evidence of structured planning and of potential for job creation and growth into national and international markets.

The business is active, trading and sustainable. The applicant has made significant progress against their business plan. The company is registered with Companies House and the applicant is listed as a director or member of that business. The applicant is involved in the day-to-day management and development of the business. The applicant has attended at least two checkpoint meetings with their endorsing body at regular intervals during their last period of permission, and confirms they will have at least two checkpoint meetings in their next permission.

Confirmation that the applicant meets the appropriate endorsement criteria must be included in an endorsement letter, which must also contain details of the endorsing body, information identifying the applicant and their business plans.

The endorsement letter must also confirm:

• The applicant is a fit and proper person;
• The endorsing body has no concerns over the legitimacy of any source of funds; and
• The endorsing body has no reason to believe the applicant or their business may have obtain funds unlawfully or have unsatisfactorily explained wealth.

The endorsement must not have been withdrawn by the body by the time the application is considered by the decision maker.

Genuineness and other considerations

In addition to having an endorsement, the Home Office may carry out a balance of probability test if they have reason to believe there are specific grounds to doubt that an applicant is genuine. This will usually take place if the Home Office has information that the endorsing body may not have seen or considered when assessing their suitability for endorsement. An assessment could include a review of an applicant’s:

• Ability and intention to establish a business in the UK;
• Intention to comply with their immigration conditions; and/or
• Any other reason to doubt genuineness.

The Home Office can ask for further information or evidence from the applicant or endorsing body, and have discretion to refuse the application if not satisfied that the endorsement was issued appropriately.

An applicant under this route must meet suitability criteria and may be required to meet TB requirements if applying for entry clearance.

Settlement

If the applicant is making a settlement (indefinite leave to remain) application, the endorsement letter must confirm that the ’same business’ endorsement criteria continue to be satisfied (except that the business must be shown to be sustainable for at least the following 12 months, and the applicant must show they have demonstrated an ‘active key role’ in the day-to-day management and development of the business), and that the applicant’s business venture meets at least two of the following requirements:

• At least £50,000 has been invested into the business and actively spent furthering the business.
• The number of the business’s customers has at least doubled within the last three years and is currently higher than the mean number of customers for other UK businesses offering comparable main products or services.
• The business has engaged in significant research and development activity and has applied for intellectual property protection in the UK.
• The business has generated a minimum annual gross revenue of £1 million in the last full year covered by its accounts.
• The business is generating a minimum annual gross revenue of £500,000 in the last full year covered by its accounts, with at least £100,000 from exporting overseas.
• The business has created the equivalent of at least ten full-
  time jobs for resident workers.
• The business has created the equivalent of at least five full time jobs for resident workers, which have an average (mean) salary of at least £25,000.

Where the applicant relies on job creation criteria, jobs must have existed for at least 12 months and comply with all relevant UK legislation, and must require at least 30 hours paid work per week. Two-part time roles combined can also meet the single full-time job requirement.

An applicant can rely on any combination of the above, even if similar or overlapping, but cannot rely on one requirement twice.

If the business venture has one or more other team members who are applying for, or who have been granted, settlement as an Innovator Founder, they cannot share the same means of meeting the settlement requirements.

Dependants

An Innovator Founder can be accompanied or joined by their spouse, civil partner or unmarried partner (where they have lived together for at least two years) and dependent children aged under 18 when they first apply. Unless the dependant has been living in the UK for at least 12 months already, they will also need to meet a financial requirement of £285 for a partner, £315 for the first child dependant and £200 for each additional child dependant. Dependants must meet suitability criteria and TB certificates may also be required.

Dependants may also qualify for settlement either at the same time or after the Innovator Founder. Important points to note are that a partner dependant must complete five continuous years as the Innovator Founder’s partner dependant and must normally have less than 180 days absences in any 12-month period. Child dependants aged 16 or over must not be living an independent life. Any dependants aged 18 or over must pass the ‘Life in the UK’ test.

Related Item(s): Immigration, Employment

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

Attachment: Lewis Silkin – Innovator founder factsheet 2023