Legal

What do the new immigration rules mean for businesses?

9 Dec 2020 By Marianne Hessey and Jessica Pattinson

Marianne Hessey and Jessica Pattinson explain how the points-based system provides more flexibility for employers and employees

In October new immigration rules were published, which provide full details of the new points-based system launched on 1 December 2020. On 30 November 2020, the Tier 2 general and Tier 2 intra-company transfer categories were replaced by the skilled worker and intra-company routes.

Skilled worker

The new skilled worker visa is likely to be the most widely used work-related visa under the new system. Many of the barriers that prevented a Tier 2 general application will be removed under skilled worker. A skilled worker needs a job offer from a sponsor approved by the Home Office and the job must fall within an eligible skilled occupation. As with Tier 2 general, this route will lead to settlement after five continuous years' residence in the UK.

The qualifying criteria for skilled workers will be a significant departure from the Tier 2 general route. Key changes include the reduction in salary threshold and the skill level required for the job to qualify.

A job offer must now command a salary of at least £25,600 (down from £30,000) or the ‘going rate’ for the occupation type. However, there are some exceptions permitting an applicant's salary to be lower, to a minimum of £20,480. These are if:

  • they have qualifications or experience that they can trade (eg, they have a PhD relevant to the role, or the job is in the shortage occupation category);
  • the role is within the health or education sector; or
  • they are a ‘new entrant’ – defined as someone switching from a student/graduate visa, or aged under 26, or working towards recognised professional qualifications.  

A technical change from the current Tier 2 general requirements is that only the gross basic salary can be used to meet the salary threshold – guaranteed allowances, such as a location allowance, can no longer be used to top up basic salary. 

The skill level has also been reduced to RQF Level 3, which is equivalent to A-levels, rather than the current threshold of RQF Level 6. There is a new appendix containing the full list of qualifying occupations and the going rate salary for each. 

The good news for employers is the rules confirmed that switching from within the UK is permitted, provided that the applicant already holds a work or study visa, including dependent visas. Under the new rules, it will be possible for Tier 2 ICT, Tier 5 youth mobility and dependent visa holders (among others) to apply for a skilled worker visa from within the UK, rather than the current system of needing to return to their home country to apply. This will assist employers that wish to localise assignees or extend the stay of temporary workers, such as Tier 5 youth mobility visa holders.

The settlement requirements are mainly unchanged. However, the minimum salary is in line with the new rates, and any absences owing to ‘pandemic-related travel disruptions’ will not count towards the 180-day limit. We urge caution at this time, as working remotely outside the UK for an extended period may not fit within the definition of ‘travel disruption’.

Intra-company transfer 

The main change specific to this route is that the high-earner threshold will be a flat rate of £73,900. This will mean that the requirement to have worked for an overseas branch for at least 12 months will continue not to apply to a salary above this, and also the maximum period of stay of nine years will be based on this figure (rather than the current rate of £120,000). 

Cooling-off period and maximum period of stay

The 12-month cooling-off period will no longer apply to current or prospective migrants. For ICT migrants, the cooling-off period has been replaced by a limit on stay of five years within a six-year period, or nine years in any 10-year period for high earners. For skilled worker migrants, there will be no limit on the number of years spent in the category – this differs from the Tier 2 general route that allows a total of six years (albeit most individuals apply for settlement after five years in the UK).

It will undoubtedly take some time to acclimatise to the new rules. However, the post-Brexit immigration landscape will provide more flexibility to employers and applicants alike when compared with the outgoing provisions.

Marianne Hessey is an associate, and Jessica Pattinson is head of immigration in the UK, at Dentons

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