What do changes to the government’s Immigration Rules mean for HR?

Samar Shams explains how recent updates will exacerbate delays to skilled worker visa applications

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The latest rule changes are a familiar reshuffling and renaming exercise that has narrowed immigration options for businesses, leading them to funnel workers through skilled worker visa processes. 

Skilled worker processes were already under strain by January of this year. When UK businesses awoke from lockdowns and the Omicron variant wave to a post-Brexit landscape of labour shortages, many employers realised they needed a sponsor licence, fast. Unfortunately, the process to obtain one consequently became slow. The Home Office was overwhelmed with applications. The Home Office started emailing sponsor licence applicants to highlight an eight-week processing timeline. The elusive priority processing service stretched from five to 10 business days. 

The new rules have little impact in and of themselves. A review of the 11 April 2022 changes reveals that each new global business mobility route is either a redressing of an existing visa route with little change or a new visa route of little utility. 

The senior or specialist worker route is the same as the intra-company transfer route, except that the minimum salary threshold for the category is raised from £41,500 to £42,400. 

The graduate trainee route is the same as the intra-company graduate trainee route. There is no longer a limit on the number of graduate trainees that can be sponsored per year; this minute relaxation might be the only positive change for UK employers under the global business mobility framework.

The service supplier route reshuffles predecessor routes to the global business mobility framework. Applicants are employees of an overseas service supplier or independent professionals whose work is part of a contract of up to 12 months. Under this awkward route, overseas providers ask their UK clients to undertake sponsorship duties. The route is narrow because the relevant work must fall under a specific international agreement: certain nationals are eligible to be sponsored for work in certain sectors. 

Secondment worker, the only new visa route introduced, is unlikely to be used much. The route is specific to workers seconded to the UK for temporary assignments as part of high-value contracts or investment. The UK sponsor must provide evidence of a contract with an overseas business for goods or investment worth at least £10m per year and no less than £50m over five years. 

The new rules also eviscerate the representative of an overseas business route, replacing it with UK expansion worker. The change is significant for overseas businesses planning an expansion to the UK. The eligibility requirements are almost irreconcilable – the sponsor must have a UK ‘footprint’ but must not have begun trading in the UK. ‘Trading’ is yet to be defined in sponsor guidance published by the Home Office. 

Employers using global business mobility routes are more likely to have to support workers with further applications. Other than senior or specialist worker, global business mobility routes are short term. None lead to settlement in the UK. Skilled worker is usually a better option.

Future challenges

The trend toward sponsorship reflected in the UK expansion worker route presents longer-term difficulties than the glut in skilled worker applications. By moving requirements from the Immigration Rules into guidance, the Home Office depletes options for effective challenges to its decision-making.

The Supreme Court has ruled that “the immigration rules should include all those provisions which set out criteria which are or may be determinative of an application for leave to enter or remain” (R (Alvi) v Secretary of State for the Home Department). Sponsorship requirements are not the basis of visa refusal decisions and so do not have to be included in the Immigration Rules. 

Where an application is refused on the basis of requirements in the Immigration Rules, it may be possible to appeal. No such recourse is available where a decision is made on the basis of sponsorship requirements published in guidance.

Further, although the Immigration Rules are promulgated breezily under a negative resolution process that attracts no revision, it is at least a process. Draft rules are laid before parliament at least 21 days before entering into force. In contrast, the Home Office can revise sponsor guidance several times a day. UK businesses and sponsored workers are more exposed to Home Office capriciousness in setting requirements.

Overall, the Home Office seems to be wasting resources on visa routes of no consequence. The least it could do, if it is providing so few options to UK businesses, would be to admit that skilled worker is the only game in town and allocate resources accordingly.

Samar Shams is an immigration and global mobility partner at Spencer West