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UK Immigration System Post-Brexit

July 15, 2020

The UK government has published further details outlining its plans for a new immigration system to take effect on January 1, 2021, when free movement within the European Economic Area and Swiss Economic Area (collectively, EEA) will end. This document builds on the policy statement released in February 2020 and provides more detail to applicants, employers, and educational institutions.

The government’s objective is to attract highly skilled workers to the United Kingdom, and the new points-based system will apply to both non-EEA nationals and EEA nationals arriving in the United Kingdom as of January 1, 2021.

For those wishing to come to the United Kingdom before January 1, 2021, non-EEA nationals will apply to come to the United Kingdom as they do now, and EEA nationals will continue to exercise their rights under the terms of the transition arrangements, which allow for continuation of freedom of movement. EEA nationals who arrive before the end of the transition period on 31 December 2020, and relevant family members, will be eligible for the EU Settlement Scheme. They have until 30 June 2021 to make an application under that scheme.

The draft requirements for the main work and study visa categories will be formally published later in 2020, along with more detailed guidance for applicants.

Application Process

The Home Office intends to streamline the sponsorship process and reduce the time it takes to bring in a migrant worker. The current cap on the number of migrant workers who can come to the United Kingdom of 20,700 will be suspended, and the requirement for employers to carry out a resident labour market test will be removed, which should reduce the end-to-end process for sponsoring skilled workers by up to four weeks.

Most EEA nationals will not need to attend a visa application centre to enrol their biometrics and will instead provide facial images using a smartphone self-enrolment application form.

Application fees will continue to apply under the new system as they do now, and a list of current fees can be found here. These will be updated to reflect the new routes under the points-based system and will apply to both EEA and non-EEA nationals.

The immigration skills surcharge will be levied in respect of both EEA and non-EEA migrant workers unless a specific exemption applies. Employers must pay £1,000 per skilled worker for the first 12 months, with an additional £500 charge for each subsequent six-month period.

The immigration health surcharge will continue to be paid by most overseas migrants coming to the United Kingdom for more than six months. A new discounted rate will be introduced for those under the age of 18. Frontline workers in the NHS and social care sector and wider health workers will be exempt from the requirement.

EEA nationals will be issued with electronic visas evidencing their rights and entitlements in the United Kingdom. Non-EEA nationals will continue to be required to submit biometrics at a visa application centre, as they do now, and will continue to be issued biometric residence permits evidencing their rights and entitlements in the United Kingdom.

Skilled Workers

The new points-based system will include a route for skilled workers who have a job offer from an approved employer sponsor. There will be no overall cap on the number of migrants who can apply under this route and employers will no longer be required to carry out a resident labour market test.

The route will require applicants to be in roles skilled to RQF3 and satisfy the English language requirement. Meeting this mandatory criteria will give the applicant 50 points and in addition they must obtain a further 20 “tradable” points assessed through a combination of salary, a job in a shortage occupation, or having a Ph.D. relevant to the role.

There will be a specific category under the skilled worker route for health and care workers to ensure that individuals in eligible health occupations with a job offer within the NHS have a potential route to enter the United Kingdom. There will be fast-track entry, with reduced application fees.

Those who enter the skilled worker route will need to make a new application if they change employer, change jobs (to a job in a different code of practice), or need to extend their stay. Existing Tier 2 (General) migrants who need to do any of the above will also need to make such an application under the skilled worker route once the Tier 2 (General) route closes.

Intra-Company Transfers and Intra-Company Graduate Trainees

This route will require applicants to be in roles skilled to RQF6, and subject to a different minimum salary threshold from the main skilled worker route. Applicants will not be subject to English language requirements, but must have been employed by the sending business for a minimum period prior to the transfer (12 months in the case of intra-company transfers or three months in the case of intra-company graduate trainees).

The route will not provide an avenue to settlement, but those admitted as an intra-company transfer or graduate trainee will be permitted to switch into the skilled worker route while still in the United Kingdom if they meet the qualifying requirements.

From 2021, the cooling off period provisions will be relaxed and an applicant will only be prohibited from returning to the United Kingdom if they have spent five years in any six-year period as an intra-company transferee.

Global Talent Visa

The global talent route was introduced in February 2020 to replace the Tier 1 (Exceptional Talent) route. This scheme aims to attract and allow highly skilled individuals who are leaders in their field, or have demonstrated promise and are likely to be leaders in their field. In particular, the scheme is open to those in science, humanities, engineering, the arts, and digital technology.

Applicants are required to obtain an endorsement from a relevant and competent body. A job offer is not required to apply under global talent. The UK government has announced a cross-departmental unit called the Office for Talent, which will help make it easier for scientists, researchers, and innovators to live and work in the United Kingdom.

Existing Routes

The requirements of the following immigration routes will remain the same:

  • Tier 5 (Creative and Sporting) which will be renamed Creative Route
  • Startup
  • Innovator
  • Youth mobility scheme
  • Temporary and long-term sporting routes
  • Tier 5 (Government Authorised Exchange)
  • United Kingdom Ancestry

Steps Employers Can Take Now

The sponsorship system will form an integral part of the points-based system. Existing Tier 2 (General) and Tier 2 (Intra-Company Transfer) sponsors will automatically be granted a new skilled worker licence or Intra-Company Transfer licence, with an expiry date consistent with their current licence, and receive an appropriate allocation of certificates of sponsorship.

Employers not currently approved by the Home Office to be a Tier 2 sponsor should apply now if they intend to sponsor skilled migrants, including from the European Union, from early 2021. Employers must undergo checks to demonstrate they are a genuine business, are solvent, and the roles they wish to recruit into are credible and meet the salary and skills requirements. Applications typically take six to eight weeks to be processed, but this is likely to increase as we approach January 2021.

Future Immigration Plans

By 2025, the United Kingdom will introduce a permission to travel scheme for all non-British and Irish nationals. Individuals wishing to travel to the United Kingdom who do not already hold a visa will be required to obtain an Electronic Travel Authorisation prior to arrival. The Home Office aims to phase out paper visas to be replaced with a digital status record. All arrivals into the United Kingdom will be required to provide a passport at the border; from 2021, EU nationals will not longer be permitted to enter the United Kingdom using a national ID card.

The government still aims to create a broader route into the United Kingdom for unsponsored workers, which will be introduced alongside the employer-led system. This will allow a smaller number of the most highly skilled workers to come to the United Kingdom without a job offer. The government will continue to consult on this route, which is likely to be subject to a cap and may allow points for academic qualifications, relevant work experience, and age. This route will not open on January 1, 2021 and is expected to open in 2022. Further details will be shared by the Home Office in due course.

CONTACTS

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

London
Jennifer Connolly
Yvette Allen

Washington, DC
Shannon A. Donnelly