It’s official: Brexit has now taken effect as of 11pm on 31 December 2020. It is no secret that this will have a major impact on almost every area of life in the UK. Perhaps one of the most significant changes will be the UK’s immigration system – the shift from free movement to applying under a Points Based System (PBS) will be nothing short of seismic for Europeans hoping to live, study and work in the UK. In short, almost everyone entering the UK from 1 January 2021 (and who is not British or Irish) will either need to limit their stay to a maximum of 180 days and undertake activities permitted for visitors, or they will need to apply in advance for immigration permission if they plan to stay longer or undertake additional activities. For those falling in the latter category, an application is likely to be made under the new PBS – this is the regime which governs the vast majority of UK visa routes, including sponsored work visas and student visas.
We outline below some of the headline changes under the new PBS, which was rolled out at the start of December 2020 and now applies to all non-British/Irish applicants – including Europeans entering the UK from 1 January 2021.
Sponsor Licences
As with the previous PBS, any company wishing to sponsor a worker will need to first apply for a Sponsor Licence. Those which already held a Sponsor Licence under the old PBS have had their licence automatically converted to the new PBS. Those who do not hold a licence are strongly encouraged to apply immediately if they plan to hire non-British/Irish workers from 1 January 2021. It is worth noting that this does not apply to hiring EU workers who were in the UK by the cut-off date of 31 December 2020 at 11pm, and who apply for status under the EU Settlement Scheme by the deadline on 30 June 2021 – these individuals are protected under the Withdrawal Agreement and do not require sponsorship under the new PBS.
Sponsor Licence holders will be subject to similar standards and duties as under the previous PBS, with some important (and often more onerous) exceptions. Sponsor Licence holders should therefore be aware of the following headline changes:
-
New Work Visas: The Tier 2 category is closed to new applicants and has been replaced by the Skilled Worker route and the Intra-Company Transfer route. We have summarised these new categories below.
-
Resident Labour Market Test (RLMT): While the requirement to undertake an official RLMT has been removed for new applicants, the Home Office still requires many of the same documents to be kept for all recruitment exercises resulting in the sponsorship of a migrant worker. Where no recruitment exercise is undertaken, an explanation of this must be kept on file. Practically speaking, this is likely to be very difficult to comply with as most companies do not take screenshots of the advertisements or keep all applications received (with reasons for rejection) – so this is something you should actively be doing if you anticipate sponsoring a migrant worker for a particular role. The ongoing requirement to store these documents is being raised with the Home Office and will hopefully be amended in future.
-
PAYE Reference Number: It is now necessary to add your company’s PAYE reference number to the Sponsorship Management System before you assign any new Certificates of Sponsorship (CoS) and we can assist with this process.
-
CoS allocations: the requirement to request an annual allocation of CoS still exists (with a deadline of 5 April each year), although they are now called ‘Undefined CoS’. These Undefined CoS will be used for all Intra-Company Transfer applicants and any Skilled Workers who are applying from within the UK. For Skilled Workers applying from overseas, it is necessary to apply for a ‘Defined CoS’ on a case-by-case basis – this request should take 24 hours to be processed, however recent experience indicates this is more likely to be 48 to 72 hours. We recommend allowing at least one week to be safe.
-
Timing: CoS can be assigned up to three months before an applicant submits their immigration application, and the application can be submitted up to three months before the start date on the Co. The individual can also now travel to the UK up to three months before the start date (the 14 day restriction has been removed).
-
Delayed Start Date: The restriction on delaying a CoS start date by more than 28 days once an immigration application has been processed has been extended to all applicants (including under the Intra-Company Transfer route). With this in mind, it is important to detail a start date on the CoS which is accurate – any delays of more than 28 days will require the entire immigration application to be re-done (which will incur significant costs).
-
Salary Changes: All salary decreases from the figure on the CoS must now be reported – and the Home Office will be checking with HMRC to confirm that a worker is being paid the salary stated on their CoS. To confirm, salary increases do not need to be reported.
-
GDPR: It is a requirement to be aware of responsibilities under GDPR as part of the sponsorship duties – so sponsors must ensure their Authorising Office can demonstrate this awareness (and presumably the company’s compliance).
-
General Grounds for Refusal/Revocation: Many of the sponsorship duties have been included in the section of the Immigration Rules outlining the general grounds for refusal / revocation of leave. This means that an individual sponsored worker can now have their application refused or their status revoked if the sponsor does not comply with its sponsorship duties.
Immigration Applications
As mentioned, the previous PBS has been closed to new applicants and replaced by a new PBS – this regime will apply to almost all non-British and non-Irish individuals planning to live, study or work in the UK. The application process will stay the same for non-EU applicants (e.g. US citizens) however EU citizens will complete a slightly different process – they will need to submit the same application form and documents, however they will not be required to attend a biometric appointment unless specific circumstances apply. Regardless of the process, the applications themselves will be considered against the same substantive criteria – meaning there is little advantage to being an EU citizen compared to other countries in the world when it comes to UK immigration.
While there have been changes to the UK’s Immigration Rules across the board, we focus here on the main changes to the sponsored work and study visas:
-
Skilled Worker: This route replaces the previous Tier 2 (General) category, with some generous changes. The skill level required for sponsorship has been lowered from Level 6 to Level 3, meaning a number of roles which were previously not eligible for sponsorship are now eligible. The minimum salary level has also been reduced from £30,000 gross per annum to £25,600 gross per annum – and can be reduced further to £20,480 using ‘tradeable points’ (e.g. by qualifying as a ‘new entrant’). The salary required by the relevant Occupation Code still applies if it is higher than the general threshold but can also be reduced using tradeable points. These positive changes regarding salary thresholds are somewhat tempered by the fact that it is no longer possible to include guaranteed allowances in the salary figure – meaning the base salary alone must meet the threshold. Importantly, the requirement to undertake a RLMT has been removed – although see our note above regarding storage of documents relating to any recruitment exercise resulting in the sponsorship of a migrant worker. This category can still lead to Settlement in the UK (i.e. permanent residence) after five years; alternatively, individuals can now be granted leave in this category repeatedly with no maximum cap – and the cooling off period has been removed entirely.
-
Intra-Company Transfer: This route replaces the previous Tier 2 (Intra-Company Transfer) category, although the changes have been less dramatic than the Skilled Worker route above. The role must still be skilled to Level 6 and pay a guaranteed gross annual salary of at least £41,500 – and this can still include guaranteed allowances (subject to certain restrictions). The individual must have been working in a linked overseas office for at least 12 months unless they will be paid at least £73,900 in the UK role, in which case they must just be currently working for the linked overseas office (this threshold has been lowered from £120,000). The cooling off period has been removed and replaced with a maximum grant of five years in a six year period. This route still does not lead to Settlement in the UK – but it is now possible to switch into the Skilled Worker route within the UK, if the individual would like to be on a path to permanent residence. Practically speaking, there are now few advantages to using the Intra-Company Transfer route compared to Skilled Worker – the main advantage would be where the individual would not meet the English Language requirement, which applies to Skilled Worker not Intra-Company Transfer applications.
-
Students: The Student Visa route replaces Tier 4, although many of the requirements are the same. The most exciting change is the addition of a new Post Study Work visa which allows individuals who graduated from a UK university within the previous two years to apply for a work visa ranging usually valid for two years – this would not require a sponsor, and would not be subject to the same minimum salary/skill levels. The Post Study Work route will open for new applicants in Summer 2021.
Summary
The above is a summary only as we cannot begin to cover every single update in one place – needless to say, there are huge changes afoot and it will take some time for the UK’s new PBS to be fully bedded in. For non-EU applicants, most of the changes will be overwhelmingly positive. For EU applicants, this will likely be a jarring change compared to the ease of the previous free movement into the UK. Similarly, UK citizens will need to be aware of the limitations placed on them in the EU from 1 January 2021 – for example, when traveling to a Schengen Country the time limit is 90 days in a rolling 180 day period (and time spent in any Schengen Country counts).
We look forward to assisting our clients with navigating the tides of change – please get in touch if you have any specific questions or would like to discuss further.
