LawFlash

UK Immigration Updates: EU Settlement Scheme Rollout, Proposals for New System

January 03, 2019

With the final test phase of the EU Settlement Scheme set to begin January 21, the UK government has provided proposals for a new immigration system, a new visa category for lower-skilled roles, and a new code of practice for fashion models. Businesses planning to employ EU and non-EU migrant workers going forward should apply for sponsor licenses soon to avoid possible delays.

The UK government has announced that it will roll out a full public test phase for the EU Settlement Scheme on January 21, 2019, following the successful completion of the first two test phases.

The EU Settlement Scheme is the immigration category under which EU citizens and their family members will be able to apply in order to stay in the United Kingdom after December 2020. From January 21, 2019, the scheme will be available to EU citizens and their non–EU citizen family members who are resident in the United Kingdom. All applicants must hold a valid passport and any non–EU citizen family members must hold a valid biometric residence card. EU citizens who do not possess valid passports will have to wait for the EU Settlement Scheme to fully open—anticipated to be by 30 March 2019—before they can make their applications.

EEA and Swiss Nationals

Further to our previous LawFlash, the UK government has reached an agreement with the European Economic Area (EEA)/European Free Trade Association member states (Norway, Iceland, and Lichtenstein) and Switzerland, and citizens of these countries will now fall under the scope of the EU Settlement Scheme.

White Paper on the Future of UK Immigration

The UK government published a White Paper on December 19, 2018, setting out the proposals for the United Kingdom’s future immigration system. The White Paper adopts the majority of recommendations made by the Migration Advisory Committee (MAC) earlier this year. In particular, the White Paper aims to bring EU workers within the existing Home Office points-based system, meaning that they will be subject to the same requirements as non-EU workers.

The main proposals for the new system detailed in the White Paper include the following:

  • Ending free movement after the implementation period begins on December 31, 2020
  • Implementing the UK immigration rules to EU and non-EU workers alike with the introduction of a new immigration system for skilled workers to be phased in from 2021
  • Removing the cap on the number of skilled workers coming to the United Kingdom (under current rules, Tier 2 (General) visas with salaries under £159,600 are subject to an annual cap of 20,700)
  • Lowering the skills threshold to include workers with intermediate skills ranging from degree-level qualifications (RQF Level 6) to A-level qualifications (RQF Level 3) (under current rules, only RQF Level 6 roles are capable of sponsorship under Tier 2, subject to limited exceptions)
  • Removing the resident labor market test requirement (under current rules, a 28-day advertising requirement is applicable to Tier 2 (General) roles where the salary is under £159,600 or the role does not fall within the Home Office’s shortage occupation list to ensure that the migrant worker is the only suitable candidate for the role)
  • Reforming the current sponsorship system to make it more straightforward and affordable for sponsoring employers, small and large

The MAC had previously recommended that the current minimum salary thresholds, i.e., £30,000 for Tier 2 (General) and £41,500 for Tier 2 (Intra-Company Transfer), should be retained, which would impose a high salary threshold for some roles at lower skill levels. The UK government has now adopted this recommendation in the White Paper, but has indicated that it will consult with businesses and employers before finalizing the salary thresholds.

New Visa Category for Lower-Skilled Roles

The White Paper proposes that workers considered to be lower skilled who do not meet the skills and salary criteria for the scheme will be able to apply for a 12-month working visa, which will immediately be followed by a 12-month “cooling-off period.” This category aims to prevent long-term employment, may be limited to a number of nationalities, and could be subject to a cap. This route will not require workers to be sponsored by a UK employer; however, workers will not be entitled to bring their family members, access public funds, or switch visa categories, nor will this route lead to settlement in the United Kingdom. This category will only be a transitional arrangement, and the UK government has indicated that use of this new category will be monitored to ensure that it is not abused.

Students

The White Paper states that students within the United Kingdom will retain the ability to move into a skilled working category following completion of their studies. Students will be given an additional six months’ post-study leave to remain to find permanent skilled work. Under the proposal, students will be able to work temporarily during their post-study leave.

Students studying at the bachelor’s level or above will be able to switch into the skilled workers category from within the United Kingdom up to three months before the end of their courses in the United Kingdom. In addition, students who have studied in the United Kingdom at the bachelor’s level or above will be able to subsequently apply for the skilled workers category from outside the United Kingdom in the two years following their graduation.

What Employers Can Do Now

Many employers do not yet hold sponsor licenses. As a sponsor license will be required to employ EU and non-EU migrant workers going forward, businesses that are not current sponsors should consider applying for a sponsor license. Due to the inevitable increase in these applications, it is advisable for employers to apply sooner rather than later in case of delays.

Tier 5 (Creative and Sporting): Models in the Fashion Industry

The Home Office has introduced a new creative sector code of practice for models in the fashion industry, which can be used for applications made under Tier 5 (Creative and Sporting) from January 10, 2019. The code of practice states that models must be paid in line with industry standards and above the national minimum wage (if employers are subject to the national minimum wage requirement).

Under the code of practice, there are four categories of models who are deemed to be making an additional contribution to the UK labor market and are therefore exempt from the advertising/resident labor market test requirement.

  • Top models: These are high-earning, recognized models who may also be personalities in their own right. They will ordinarily be coming to the United Kingdom with prebooked work. The sponsor must provide evidence that the model has international status.
  • Commercial models: These are experienced models who must be already established either in the United Kingdom or in their own or other markets. They must have been premarketed to clients in the United Kingdom using more than just photos unless they are only coming to the United Kingdom for a particular job. The sponsor must provide evidence of previous engagements or commercial status in the United Kingdom, and/or evidence of the model’s having worked in markets outside the United Kingdom.
  • Models required for continuity: These models must have worked for the same client within the two years immediately prior to entering the United Kingdom. The sponsor must provide evidence of the model’s previous and future work with the same client.
  • New faces: These are experienced models who may be new to the UK market or coming to the United Kingdom for a second or third time. They must show considerable promise and are likely to be in high demand with photographers and print or digital media. Models must meet 65% of the eligibility criteria for the modeling industry, as endorsed by the British Fashion Council, with the sponsor providing evidence of which criteria are met.

In addition, the code of practice allows for an exemption from the advertising/resident labor market test requirement where a model does not fall within one of these four categories but is endorsed by a British Fashion Council–approved panel. The panel will score the model against the modeling industry eligibility criteria (as in the “new faces” category) and the documents submitted to it for consideration. The endorsement must be in place before the sponsor issues the certificate of sponsorship to the model. The British Fashion Council have yet to publish the eligibility criteria.

Prevention of Illegal Working

The Home Office’s Employer Checking Service has been updated to allow employers to use this online service to demonstrate they have conducted the necessary right-to-work checks on migrants.

Under current rules, employers need to request paper documents for conducting such checks, in addition to using the service. From January 28, 2019, employers will be able use the online service to demonstrate they have conducted the necessary right-to-work checks on migrants and avoid penalties if they are found to be employing illegal workers. However, employers should note that initially the service will only be available for verifying the right to work of some non–EEA/Swiss nationals, so it will not replace conventional right-to-work checks completely.

This development provides some clarity for employers on how they will be able to undertake right-to-work checks on EEA nationals post-Brexit. Provided the draft withdrawal agreement is adopted, EEA/Swiss passports or national ID cards will no longer be acceptable documents for confirming the right to work after December 31, 2020. From January 1, 2021, employers will be able to rely on the Home Office Employer Checking Service to verify the immigration status (only provided in electronic form) of EEA/Swiss citizens who have registered under the EU Settlement Scheme.

Immigration Health Surcharge

As we noted previously, the immigration health surcharge will double from £200 to £400 per year per person for all applications submitted on or after January 9, 2019.

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:

New York/London
Nicholas Hobson

London
Yvette Allen
Jennifer Connolly