The biggest change to the UK's immigration rules and guidance in the last 40 years took effect from 1 December 2020, in preparation for Brexit. This will have a wide-ranging impact on the UK's immigration system for years to come, but what do these changes mean for sponsors in the next few months?
Our Immigration Team has considered the key changes below and the practical steps that employers who already have a sponsor licence will need to take in the coming months.
Where can you find updated guidance relating to the changes?
In addition to the new guidance which our recent Stop Press! alert referred to, the Home Office has now withdrawn the "Tier 2 and 5 sponsor guidance" and instead produced new individual guidance notes for the various immigration routes available under Tiers 2 and 5 of the new points-based system, together with guidance for sponsors in relation to their sponsor duties and compliance.
The full list of guidance notes can be found here.
What is a sponsor licence & why might you need one?
Employers who wish to employ non-British and non-Irish people to work in the UK require a sponsor licence. This licence enables businesses to sponsor the worker's visa. From 1 January 2021, visas are needed for non-EEA, EEA and Swiss migrants (except Irish nationals) who are coming to the UK to work.
If your business employs non-British and non-Irish workers, you will therefore require a sponsor licence to sponsor new migrant workers who arrive in the UK to work from 1 January 2021. To access this part of the UK's labour pool, we anticipate that more businesses obtaining sponsor licences and grappling with these changes.
What about EEA & Swiss nationals already living in the UK?
For those employers who currently employ EEA and Swiss workers, if those workers are living in the UK on or before 31 December 2020 then they will be eligible to apply for settled or pre-settled status under the EU Settlement Scheme. They must make their application on or before 30 June 2021. Provided their applications are successful and these individuals remain in the UK, this category of workers will not need to be sponsored in order to continue working in the UK.
Is the position for Irish nationals different?
The position for Irish nationals is different. They will continue to have the right to live and work in the UK after Brexit without sponsorship, and they do not need to apply for settled or pre-settled status, although they can if they want to.
Sponsoring visa migrants: what is changing?
The current points-based system is being replaced by a new system with new visa routes and updated visa categories. The existing Tier 2 (General) category will be replaced by the Skilled Worker route and the Tier 2 (ICT) route is also changing. For those employers who already hold a Tier 2 or 5 sponsor licence, this will automatically be transferred to the equivalent category under the new system from 1 December 2020.
What are the main changes to Tier 2 at a glance?
The key changes to be aware of in relation to sponsoring a Skilled Worker are:
- certificates of sponsorship (CoS) will now be "defined" or "undefined" rather than "restricted" or "unrestricted".
- a defined CoS must be assigned to a sponsored worker who is applying for entry clearance to work in the UK (i.e. making an application from outside the UK); and
- an undefined CoS can be assigned to workers who are applying for leave to remain or who are switching visa categories from within the UK.
- the skill level required is now RQF Level 3 (A level or equivalent level of qualification);
- the salary must usually be the higher of £25,600 or the going rate specified on the SOC code for the role;
- the English language requirement remains, however evidence that the worker was taught in English at school or degree level is acceptable under the new system; and
- there must be a genuine vacancy for the role, however the resident labour market test is no longer required.
The key changes to be aware of in relation to sponsoring an Intra-Company Transfer (ICT) worker are:
- for ICT Workers, the required salary will usually be the higher of £41,500 or the going rate specified on the SOC code for the role and for ICT Graduate Trainees, the higher of £23,000 or the going rate specified on the SOC code for the role. Sponsors should note that the going rate is pro-rated for working hours and the rate on the SOC code assumes that the worker will be working a 39-hour week. To the extent that a migrant works more than 39 hours per week, the going rate will need to be calculated based on their actual working hours; and
- sponsors should check whether the worker has previously been in the UK under a Tier 2 ICT visa to ensure that the CoS they apply for does not exceed the maximum period of grant; and
- ICT workers will now be eligible to switch into the Skilled Worker route to allow them to be on a visa route which leads to settlement.
The "cooling-off" period
The 12 month "cooling-off" period that prevented workers (who were not high earners) from applying for a new visa within 12 months has been scrapped under the new system. This means that workers in the UK under the Skilled Worker and ICT routes can return home and come back to the UK via the same/a different Tier 2 route without the need to wait 12 months before reapplying.
Transitional phase: what do employers need to do now?
- If you do not currently have a sponsor licence but you want to employ migrant workers (including EEA or Swiss nationals) after 1 January 2021, consider applying for a sponsor licence now.
- If you currently employ EEA or Swiss nationals, support them with their application under the EU Settlement Scheme, which they will need to make before 30 June 2021 to enable them to remain living and working in the UK without the need to apply for a visa under the new system.
- If you currently have a sponsor licence and have a CoS which has been assigned but not yet used by the sponsored migrant for their visa application, you will need to "upgrade" the CoS before the migrant can make their visa application. We can assist with the process of doing this.
- Ensure that workers' salaries match the salary stated on their CoS. The latest guidance states that any salary reduction from the level stated on their CoS from 1 December 2020 onwards must be notified to the Home Office via the sponsor management system within 10 working days of the change taking place.
Our immigration team would be happy to assist with any new sponsor licence applications, visa applications for sponsored migrants or more general queries regarding ongoing sponsor duties under the new system. Please do not hesitate to contact us should you have any questions about the new system and what your business may need to do to prepare for Brexit.