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immigration rule changes: major new statement of changes released

26 October 2020

Legislation was laid in Parliament on 22 October 2020 setting out a number of changes to the Immigration Rules as a result of Brexit. At the end of the transition period on 31 December 2020, free movement will end and newly arriving European Economic Area (EEA) and Swiss citizens will come within the scope of UK’s new global immigration system.

The majority of these changes will come into effect between 1 December 2020 and 1 January 2021. The full statement of changes can be downloaded here. These are really important rules which overhaul our entire sponsored worker scheme and sets out how employers will find and retain skilled staff in a post Brexit world.

The Government has said the statement of changes was "a significant step forward in [the] transformation of our immigration system, implementing the future global points-based immigration system and simplifying and streamlining the rules."

EU, EEA and Swiss citizens

EU, EEA and Swiss citizens arriving in the UK on or before 31 December who wish to work, study or visit the UK should not apply through the Points-Based Immigration System. If they want to stay in the UK after 30 June 2021 they should apply to the EU Settlement Scheme upon arrival in the UK.

The rule changes will provide for those who have not applied under the EUSS before 30 June 2021 to apply after that date if there are “reasonable grounds why they missed the deadline”. There is no definition of “reasonable grounds” so presumably the Home Office will issue guidance about it in due course.

Furthermore, the government has created a range of introductory guides for those planning to enter the UK from 1 January 2021,and also created individual country pages here with translated information across 24 EU languages. The government states that these pages will be updated in the coming weeks with further guidance.

Right to work checks

Employers will need to check a job applicant’s Right to Work in the same way as now until 30 June 2021. Guidance on employing EU, EEA and Swiss citizens in the UK, covering Right to Work checks is available here.

Summary of Changes

The information below summarises the most important changes and more detailed posts covering specific parts of the new rules are to follow.

COVID-19 concessions

In recent months, the Home Office has often repeated that those who did not have leave to remain in the UK but could not leave due to the pandemic would not be treated as overstayers however there was no real confirmation until now. This has now made it into the rules, by amending paragraph 39E to allow caseworkers to disregard overstaying between 24 January 2020 and 31 August 2020.

Visitor route

Amendment of the visitor rules to:

  • Allow short-term students of up to 6 months to be covered under the standard visit route. The existing short-term student rules will be replaced with new provisions that just focus on those students planning to the come to the UK for 6-11 months for English language study.
  • Allow drivers on genuine international routes to collect as well as deliver goods and passengers in and out of the UK.
  • Harmonise the extension rules for visiting academics undertaking the full range of permitted activities as academics.
  • Remove the restriction on visitors who want to volunteer in the UK being limited only to volunteering which is incidental to their visit.

Skilled Worker route (replaces the Tier 2 (General) route)

This route is for both EEA and non-EEA nationals who wish to come to the UK for the purpose of working in a skilled job they have been offered. It replaces the Tier 2 (General) route. An applicant must be sponsored to do a specific job, which meets skill and salary requirements, by an employer that has been licensed by the Home Office. The main differences between the Tier 2 (General) route and the Skilled Worker route are outlined below:

  • The minimum skill threshold is being lowered from graduate occupations (RQF level 6) to RQF level 3, roughly equivalent to A-levels or Scottish Highers. Applicants will not need to hold a formal qualification; it is the skill level of the job they will be doing which determines whether the threshold is met.
  • The general salary threshold is being lowered from £30,000 a year to £25,600 a year. As is currently the case, sponsors must pay their skilled workers a salary which equals or exceeds this threshold or the “going rate” for the occupation, whichever is higher.
  • Sponsored workers may be paid less than the above amounts, depending on the tradeable points they are awarded. Applicants must be awarded 70 points in total. Meeting the mandatory criteria (sponsorship, skill level and English language skills) will result in 50 points. An applicant may be awarded the remaining 20 tradeable points through a combination of points for salary, a shortage occupation or a relevant PhD qualification.
  • The cap which currently applies under Tier 2 (General) is being suspended. This will reduce the end-to-end process for sponsoring skilled workers by up to four weeks.
  • There will be no requirement for sponsors to undertake a Resident Labour Market Test. This will remove at least a further four weeks from the end-to-end process for sponsoring skilled workers. Sponsors must still be seeking to fill a genuine vacancy which meets the skill and salary thresholds of the new route. The Rules do not make clear how an employer will prove this.
  • The criteria used to identify a “new entrant to the labour market” are being amended.
  • The 12-month “cooling off period” and six-year maximum length of stay in the route are being removed.
  • The £35,800 salary threshold for settlement applications is being removed and replaced with £25,600 per year and the going rate for the occupation.
  • Those sponsored in shortage occupations or listed health or education occupations must be paid at least £20,480 per year and their salary must equal or exceed the going rate for the occupation. Other salary reductions permitted through tradeable points will not apply to settlement applications.

Shortage Occupation List

The Migration Advisory Committee (MAC) published its report on 29 September 2020 setting out recommendations on the Shortage Occupation List. The UKVI have not taken these into account yet.

Tier 2 Intra-Company Transfer route

The Intra-Company Transfer route is for established employees who are being transferred by their employer company to do a skilled role in the UK. The Intra-Company Graduate Trainee route is for employees who are being transferred by their employer company to a role in the UK as part in a structured graduate training programme. The main changes are:

  • A change is being made to the cooling-off requirement. Instead of migrants being barred from re-entering the UK as an ICT for 12 months after departing, they will be permitted to hold Intra-Company Transfer leave for up to 5 years in any 6-year rolling period or up to 9 years in any 10-year period for high earners.
  • High earners will be those earning an annual salary above £73,900 (instead of £120,000). High earners can have visa under this category for up to 9 years and do not have to have been working for the overseas business for 12 months.
  • More flexible in-country switching into the Intra-Company Transfer route. However, applicants will still need to be an existing employee with a period of overseas experience prior to applying unless they are a high earner.

More information can be found in the Written Ministerial Statement and in the full version of the immigration rules.

New Immigration Routes

The following four new routes will be created:

  1. Hong Kong British National (Overseas) route: These rules bring in the new Hong Kong British National (Overseas) routes – the BN(O) Status Holder route and the BN(O) Household Member route.

  2. Skilled Worker route: as above

  3. S2 Healthcare Visitor route: introduced to allow eligible patients, and those accompanying them to provide them with care or support, to come to the UK free of charge to receive a course of planned healthcare treatment provided by the NHS under the “S2 route”.

  4. Service Providers from Switzerland route - immigration route for individuals employed by Swiss companies and Swiss self-employed individuals to come to the UK for up to 90 days/year to fulfil contracts in the UK. To be eligible, the contracts must have been signed and commenced before the end of the transition period. This route is expected to run until 31 December 2025.

Additional changes

Additional changes are made to the following:

  • Suitability requirements of the Immigration Rules: reassessment of when criminal convictions will stop someone from being able to come to the UK. There will be just one threshold: a prison sentence of 12 months, applying to offences committed in the UK or overseas.
  • Afghan Interpreter rules
  • EU Settlement Scheme (EUSS)
  • Student rules
  • Parent of a Child Student rules
  • Global Talent route
  • Validity requirements for applications
  • English language, finance and Knowledge of Life in the UK requirements
  • Administrative review
  • Sham Marriage Scheme and marriage visit visa requirements
  • Family Immigration Rules in Appendix FM
  • Turkish ECAA categories

Overall there are a lot of changes contained within the 514-page document and a significant rearrangement of the Immigration Rules.

If you have any specific queries do get in touch and we will try to assist.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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