On 7 December 2023 the Home Office published new Immigration Rules. These expand the range of activities visitors are allowed to do in the UK from 31 January 2024, including remote work, research, provision of legal services and paid engagements. The Youth Mobility Scheme is also amended to include citizens of Uruguay and to restructure the arrangements for Japanese and South Korean citizens.

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Statement of Changes in Immigration Rules HC 246 does not include any of the recently-announced policies designed to reduce net migration, due to be in effect during Spring 2024. These will be the subject of a future statement of changes.

The points likely to be of most interest to employers are outlined below.

Visitor route

Provisions are made more liberal for visa nationals who apply for their visitor visa on or after 31 January 2024, and for non-visa nationals who enter 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 in 2024 and beyond, in line with the terms of future international trade deals.

Intra-corporate activities

Individuals employed abroad who visit a group business in the UK will now be allowed to 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.

This lifts a significant current restriction, which limits intra-corporate activities to those that are for the benefit of the group the visitor is employed by.

Remote working

The Rules are amended to confirm and clarify what is currently only contained in guidance. The new Rule states that visitors are allowed to work remotely on activities related to their overseas employment, provided this is not the primary purpose of their visit.

This wording removes the existing ambiguity around the extent to which a visitor may engage in work activities for their overseas employer while they are on holiday or on a business trip to the UK. Currently, the guidance states that visitors are permitted to undertake activities ‘relating to’ their overseas employment, such as responding to emails or answering phone calls. The new Rules contain no restriction on the range of work activities that may be carried out remotely on behalf of an overseas employer, which is a welcome development.

Providing legal services

Overseas lawyers are currently only allowed to advise a UK-based client on specific international litigation and/or an international transaction.

Allowed activities for overseas lawyers are significantly expanded upon under the new Rules, to include the provision of legal services, including:

• 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 the services to be for a UK-based client has been dropped. This is a pragmatic change that recognises the complexity of the client parties and practices often involved in legal work.

Permitted paid engagements

Being a speaker at a conference is included as a permitted paid engagement (PPE).

The route is also being 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. They will however be required to arrange their engagement before entry, and complete it within 30 days of their arrival. Individuals intending to carry out a PPE must be over the age of 18 on the date they arrive in the UK.

Logistically, this change has the benefit of enabling 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.

Research

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

International Sportspersons

From 31 January 2024 International Sportspersons applying to come to the UK for 12 months or less may make their entry clearance from any country they are in, provided they can demonstrate they are there lawfully and carrying out activities as a sportsperson. This change corrects a previous drafting error.

Youth Mobility Scheme

The following changes are in effect for applications made on or after 31 January 2024:

• Citizens of Uruguay are eligible to apply under the scheme;
• The upper age limit for citizens of the Republic of Korea (South Korea) is raised from 30 to 35;
• Japanese and South Korean citizens may apply without firstly having an invitation; and
• The allocation of places for Japanese citizens has increased to 6,000, and to 5,000 for South Korean citizens.

Amended definition of ‘partner’

For applications made on or after 31 January 2024, the definition of ‘partner’ is being clarified to confirm that for unmarried partners, there is no requirement for the couple to have been living together for at least two years. It is sufficient for a relationship similar to marriage or civil partnership to have existed for at least this period of time.

This change aligns with the wording already present elsewhere in the Rules. However, it is useful for employers to be aware of this helpful recent change as it covers partners of individuals in work routes.

If you have any queries relating to these developments, get in touch with a member of our Immigration Team.

Related Item(s): Immigration

Author(s)/Speaker(s): Stephen OFlaherty, Sam Koppel, Kathryn Denyer,

The Home Office intends to phase out biometric residence permits and other physical immigration documents from 1 January 2025. Although details of the process are still awaited, employers should take the opportunity now to review the volume of repeat right to work checks are due on 31 December 2024 and aim to minimise bottlenecks with processing these.

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Currently, many biometric residence permits (BRPs) and biometric residence cards (BRCs) are due to expire on 31 December 2024, even where the holder’s immigration permission expires after this, or where they are settled and have no expiry date for their permission.

The reason for this is historical – when the UK was still part of the EU, there was a requirement to upgrade the encryption technology in these documents by the end of 2024. Initially, the expectation was that current generation BRPs and BRCs would be replaced with documents containing the new technology. Post-Brexit however, the Government has decided to move away from issuing physical immigration documents altogether.

What is the Home Office’s plan for phasing out physical immigration documents?

The Home Office intends to move towards digital-only recognition of immigration status, using an electronic visa (eVisa) system.

eVisas will replace the following physical immigration documents:

• BRPs – these are currently held by some people with limited immigration permission longer than six months, or who are settled in the UK;
• Biometric residence cards (BRCs) – these are currently held by some EU Settlement Scheme participants;
• Vignette stickers in passports – these are used for visitor visas for visa nationals, and as an initial travel facility for some individuals who have applied to come to the UK from abroad and who have not yet received their BRP or BRC; and
• Stamped endorsements in passports – these are sometimes held by people who settled in the UK a long time ago, or who have had short-term immigration permission (for six months or less) endorsed at the border.

During 2024, holders of these physical documents will need to register for a UKVI account so that they can access an eVisa version of their immigration permission. The holder’s immigration status and immigration conditions will be unaffected by registering for the UKVI account.

The main function of the account is to enable access to the Home Office’s view and prove service. An individual can use this service to issue a share code to third parties needing to check their status and conditions, e.g.:

• An employer as part of a right to work check;
• A landlord in England as part of a right to rent check; and
• Other third parties such as educational institutions.

Valid physical documents should still be used for travel to the UK for the time-being, however an eVisa, along with the individual’s passport, will be needed to travel to the UK at some point in the future. To avoid potential travel disruption at that stage, it will be important to ensure the UKVI account is set up and has the holder’s current passport details registered to it.

Specific information on the process for applying for a UKVI account has not yet been published, however a new webpage has been added to GOV.UK. Businesses and individuals can subscribe to receive emails when the page is updated.

How does the expiry of BRPs and BRCs impact right to work checking processes?

Before 6 April 2022, it was possible for BRP and BRC holders to prove their right to work using their physical document, rather than being required to use the Home Office’s online right to work check system.

Where an individual opted to do this, the expiry of their BRP or BRC will have been listed as 31 December 2024, unless their immigration permission was due to expire before this date.

For individuals who are settled in the UK, no repeat right to work check will be required. However, for individuals with limited immigration permission, a repeat right to work check must be carried out before the expiry of the document they used to prove their right to work, rather than before the expiry of the person’s immigration permission.

This means some employers may have a high volume of repeat right to work checks due on 31 December 2024.

How can employers minimise the impact of this change on repeat right to work checks?

It is not yet known when employers will be required to use the view and prove system only. This will depend on when the existing online right to work checking system for BRP and BRC holders is decommissioned, and when manual right to work checks will be discontinued for non-British or Irish individuals with existing immigration permission or exemption from immigration control.

The switchover process to UKVI accounts may not happen smoothly. It is also likely that Home Office systems will experience a high traffic load immediately in the lead up to the end of 2024. This combination of factors may place pressure on HR teams processing repeat checks late next year.

We would suggest that employers consider taking the following actions to minimise administrative impact:

• Identify which workers’ repeat right to work check is due on 31 December 2024;
• Implement a phased process of asking (but not requiring) affected individuals to complete an early repeat check using the online right to work check process – this will smooth the administrative burden for the business and enable the next repeat check to be aligned to the expiry of individuals’ existing immigration permission; and
• Implement a process for prompting workers to obtain a UKVI account on a timely basis ahead of their next repeat right to work check.

We shall provide updates on the process of registering for a UKVI account as further information is released by the Home Office.

We are covering the phasing out of physical immigration documents our next ‘What’s happening in immigration law’ session on 7 December. For more information and sign-up details, click here. If you are an employer with queries about this topic, you can also get in touch with a member of our Immigration Team.

Related Item(s): Immigration

Author(s)/Speaker(s): Supinder Singh Sian, Abi Adetifa, Kathryn Denyer,

Diversity, equity, and inclusion (DE&I) initiatives are no longer just buzzwords but are becoming essential elements of success for companies in all industries. Companies are recognising the value of diverse talent and the need to promote equitable opportunities in their global operations. Immigration law is a cornerstone of the legal framework and can play a pivotal role in shaping the demographic composition of a company.

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In this article, Declan Groarke, Senior Associate in the Employment, Immigration and Reward team of Lewis Silkin Ireland, explores how immigration law can be a powerful and effective tool to address and advance DE&I initiatives within a company’s global mobility practices.

What is DE&I

We hear the words diversity, equity and inclusion used with increasing frequency in today’s business world, but what do they really mean for an organisation? Put simply, DE&I is a framework for social reform applied to professional environments.

Diversity involves people’s “race, gender, religion, sexual orientation, ethnicity, nationality, socioeconomic status, language, disability or ability, age, religious belief or political perspective.” In any industry, working in diverse teams can help your company establish trust with different communities and understand different perspectives.

Equity “promotes justice, impartiality, and fairness within the procedure, processes, and distribution of resources by institutions or systems.” This involves creating an environment where everyone is empowered to achieve. In your business, that may involve treating all team members, contractors, clients, customers, suppliers with respect and ensuring your rules, policies, and processes are applied the same way to everyone.

Lastly, inclusion “ensures people of all diverse backgrounds are welcome and have a seat at the table.”

When you put this all together and practice it consistently, DE&I creates a work environment where everyone can thrive and feel supported and welcome. But what role can immigration law have in advancing DE&I initiatives in a company’s global mobility practices.

Attracting global talent

Ireland has become a global hub for innovation and business. Accordingly, Ireland’s employment permit system and business immigration permissions has developed to provide a robust framework to supplement skills and labour needs in Ireland. Whether it is a critical skills employment permit or an atypical working visa, Ireland’s employment permit system and business immigration permissions are designed to attract skilled professionals from diverse backgrounds by providing accessible pathways for talent to work and reside in Ireland. In turn, this enriches the workforce with a diverse set of skills and perspectives, promoting DE&I within a company.

International assignments

Ireland’s employment permit system can also facilitate international assignments of senior executives and key personnel into Ireland. There are many reasons as to why an organisation may wish to send an executive or key personnel on an international assignment, for example, training, transfer of knowledge, skills development, market insight, succession planning. However, an international assignment can be another powerful tool for further promoting DE&I within a global organisation.

Living and working in a different country can provide members of senior leadership with firsthand experience of different cultures, values and ways of working. That exposure to different cultures can help them to develop cultural intelligence, sensitivity and awareness which can be shared with other senior leaders. Along with obtaining a broader perspective on global business practices and societal norms, this worldwide view can lead to more inclusive decision-making and strategies.

Family reunifications

Immigration is all about the inward movement of people. However, family reunification, which lies at its core, plays a pivotal role in promoting greater inclusivity as it embodies a fundamental commitment to human values and social cohesion.

The Department of Justice’s family reunification policy recognises the intrinsic importance of keeping families together and facilitates the reunification of spouses, children and other dependents with their loved ones who are relocating to or have established residence in Ireland. Having a streamlined family sponsorship process like we do in Ireland ensures that immigrants can contribute to their new employer without the burden of family separation. This not only fosters emotional well-being by preserving familial bonds, but it also contributes to the overall stability and integration of immigrants into their new workplace.

Additionally, under Ireland’s family reunification policy, spouses and de-facto partners of certain immigration permission holders (e.g. a spouse or de-facto partner of a critical skills employment permit holder) are granted permission to work in Ireland which is contingent upon their spouse’s / partner’s permission to work in Ireland. It also provides accessible educational opportunities for family members.

Therefore, family reunification can have a profound impact on fostering a sense of belonging and inclusivity for the family as a whole, as it also contributes to the integration of immigrants into their adopted communities.

Language and third level courses

Another way Irish immigration law facilitates the integration of international employees is through immigration permissions which may be sought and obtained by international students undertaking third level and English language courses in Ireland.

Many international students come to Ireland to either learn English or further their studies by undertaking a third level qualification. The consequent student permissions available to these international students allow them to either further their studies or enter the workforce on foot of being granted further permissions under the Department of Justice’s third level graduate programme – the purpose for which is to grant non-EEA national third level graduates permission to work in Ireland for a period of time so that they may find employment for which an employment permit may be granted.

These kinds of programmes again play a pivotal role in supporting the integration of international employees in the workforces of many companies in Ireland with the result of further enriching the workforce with a more diverse set of skills, and further promoting DE&I within a company.

International Protection

Whilst an unfortunate reality in recent times, global mobility can also involve relocating individuals who are seeking asylum or international protection. Ireland’s humanitarian values extend to its immigration policies, making it a welcoming destination for individuals fleeing oppression or seeking international protection and enabling those individuals to take up employment here. Supporting such individuals within the workforce, and being able to facilitate them through our immigration system, aligns with a company’s commitment to DE&I.

Conclusion

Immigration law endeavours to provide equality in both opportunity and access to professionals and families. But it also provides an essential source of diversity for a country. Ireland’s employment permit system and business immigration solutions can be a valuable tool for maximising diversity goals and advancing DE&I initiatives within a business’s global mobility solutions.

At Lewis Silkin Ireland, we advise a wide array of industries and recognise the profound influence immigration law and policy can have on the success of global operations. By embracing immigration policies that attract diverse global talent, promote family reunification, provide education opportunities and offer international assignment programmes, companies can enrich their workforce with diverse perspectives and experiences, thereby fostering and strengthening their DE&I initiatives and goals.

For more information, please contact Declan Groarke at Declan.Groarke@LewisSilkin.com or at +353 1 566 9877.

Related Item(s): Immigration, Business immigration in Ireland, Equality & Diversity in Ireland, Equality & Diversity, Ireland, Ireland

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

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,