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Employer sponsorship
Over the past half century, a variety of routes became available to those who wished to enter the UK for working purposes, or to establish or join a commercial enterprise. In February 2005, the then Prime Minister Tony Blair announced that the government wished to dramatically alter the immigration landscape by sweeping away many of the various employment-based immigration routes, reducing them to five categories or ‘tiers’. Persons who fell into any of the five tiers would have their applications determined by an objective PBS linked to specified attributes, such as salary, academic qualifications, and skill levels. This structure was intended to remove any element of discretion concerning who was, and who was not, permitted to enter the UK for work purposes.
This dramatic change was coupled with an intention to make employers themselves responsible for assigning work approvals (to be known as Certificates of Sponsorship), based upon the objective application of the number of points achieved by a particular overseas migrant. For compliance checks to be more easily carried out by the Home Office, any employer wishing to employ overseas migrants pursuant to certificates of sponsorship is required to hold a sponsor’s licence permitting it to do so. A complex series of passwords and user IDs are provided to each employer sponsor and all relevant information about an overseas migrant is held in a central government computer bank called the sponsor management system.
In view of the radical nature of these changes, they took over three years to be implemented. By November 2008 the PBS, with its five tiers, had been rolled out and since then the most radical changes to the employment categories of the UK immigration process have been operational.
In February 2020, the government announced its plans for a new UK immigration PBS to be introduced at the end of the Brexit transition period. The new PBS was open to applications from 1 December 2020 and came into force on 1 January 2021. The purpose of the new framework is to ensure that the country remains open for business; attracting the skills and attributes needed by key sectors of the economy and regions of the country, while at the same time reducing overall migration numbers and boosting the skills and opportunities of local workers. New categories largely based on the previous tiered system are now in operation, with further reforms coming into effect this year.
Perhaps the most politically charged part of the new system is that there is no route for ‘low-skilled’ workers, even on a temporary or transitional basis. Instead, the government argues that there will be sufficient labour in the UK from among the 3.2 million people who have already applied to remain under the EU settlement scheme, as well as non-EU citizens who come as dependants of skilled migrants.
In January 2021, the five-tiered PBS was replaced by a PBS with standalone categories that largely resemble their predecessors. Although some employment routes do not fall within the PBS, the vast majority do. The PBS system included routes for investors, entrepreneurs, those with ‘exceptional talent’ and graduate entrepreneurs (the entrepreneur and graduate entrepreneur routes are now closed to new applicants, and the exceptional talent route closed on 20 February 2020).
The Skilled Worker category is applicable to highly skilled employees performing at or above school-leaver level, whereas the Intra-Company category was applicable to highly skilled employees performing graduate level roles or above, divided into subcategories of intra-company transfers (ICTs) and intra-company graduate trainees.
The PBS additionally includes routes for students and temporary work, which further incorporates myriad different categories, including those permitted to come to the UK under youth mobility schemes (primarily replacing the old working holidaymaker route available to young Commonwealth citizens), government-approved exchanges, those wishing to undertake internships and those of high ability in the arts, sports and entertainment sectors.
Over the course of 2022, further changes are taking place with two main aims: to simplify the PBS routes; and to work towards equal immigration options for all individuals irrespective of their country of origin, as the UK continues its transition into a post-Brexit regime. The new and simplified regime coming into force continues to improve Skilled Worker options, now a common route for EEA and non-EEA nationals. It has also simplified the ICT routes and created more options for workers with a number of new categories under a Global Business Mobility umbrella.
In any of the above categories, only those who secure the requisite number of points are eligible to seek entry to the UK for the purposes of employment or study. Of the employment-based routes, the following are the most prevalent and the most widely used by UK companies that need to employ migrant labour.
These applications are sponsored by employers who either wish to transfer their overseas employees to the UK or to hire a new recruit. Table 1 of Appendix Skilled Occupation lists the occupations for which visa applications under this category can be accepted.
In 2020, this category was divided into two primary types: Skilled Worker for new hires and Intra-Company for overseas employees of a UK business (either at graduate or established worker levels). In in April 2022, the latter category will be replaced with a new Global Business Mobility category, which is itself subdivided as outlined below.
The Senior or Specialist Worker route is nearly identical to the Intra-Company Transfer route that it replaced. The category supports inwards investment and trade by allowing multinational employers who are of senior manager level or who are specialist employees in a particular working area to transfer key company personnel from overseas to their UK branch.
Within the Senior or Specialist Worker category, the role must be of a suitable level and salary. The applicant must additionally be a current employee of the sponsor group, and, unless they are applying as a high earner (earning over £73,900 per year), must have worked outside the UK for the sponsor group for a cumulative period of at least 12 months. Additionally, the salary for the role must meet or exceed the going rate for the role and the general salary requirements for the visa. The previous Intra-Company Transfer route required an overseas migrant to earn an annual salary of at least £41,500. This has now increased in this route to £42,000, except where the migrant is applying for permission to stay through the transitional arrangements.
Transitional arrangements are available for those falling into certain occupation codes, at the appropriate skill level for a Senior or Specialist Worker and will allow them to apply for permission to stay, being sponsored to continue working in the same job for the same employer in that occupation code. It is available for migrants who were previously granted permission as an Intra-Company Transfer Migrant under the rules in force before 6 April 2011, or were a Work Permit Holder, and has since then continuously had permission in the current category.
The desire to continue using this category as a way to overcome particular labour shortages is evidenced in the current list of occupations that are eligible to use the transitional arrangements for continued leave to remain in this category. The occupational codes listed are those in the arts sector, including actors, dancers, designers and authors. Leave as a Senior or Specialist Worker will generally be granted for a distinct period of time, such as 14 days before the end date of the job the individual is in the UK to undertake; five years after the start date of the job or start date of cumulative Global Business Mobility visas; or the end of nine years’ cumulative permission under the Global Business Mobility routes for high earners. When deciding when to end the visa, case workers are directed to choose whichever is the shortest period of time out of these options.
However, migrants who entered the UK in this category, or any of the category’s predecessors under the Immigration Rules in force after 6 April 2010, are not permitted to obtain ILR. This requirement is intended to discourage overseas migrants coming here purportedly to fill temporary labour shortages, but whose real intention is to settle permanently in the county. The restriction was further tightened in April 2011 when rules were introduced that required this category of overseas migrants to leave the UK after they had lived and worked in this category for five years (or, since January 2021, nine years for those earning in excess of £73,900 a year). The basic premise remains the same, however: these highly paid executives will be required to leave the UK at the end of this extended period, unless they switch to Skilled Worker status in the meantime. This category maintains a cooling off period, whereby a migrant is permitted to hold leave in this category for a period of up to five years in any six-year rolling period, or up to nine years in any 10-year period for high earners. The period of leave is calculated as a cumulative total of leave held on the new Global Business Mobility routes and the old Intra-Company routes.
Global Business Mobility Migrants are exempt from the requirement of having to establish their English language ability but are required to pay the Immigration Health Surcharge for themselves and their dependants. Their employees must also pay the Immigration Skills Charge (introduced from April 2017) at £1,000 per year of visa validity (£364 for small or charitable sponsors).
The Global Business Mobility Graduate Trainee route replaces in a near identical (but simplified) way, its predecessor, the Intra-Company Graduate Trainee route. This category is for graduate trainees within, usually, a multinational company, who have been employed abroad for at least three months and who are being transferred to the UK parent, branch or subsidiary of the same organisation as a part of a structured graduate training programme. The programme must define the progression towards a managerial or specialist role and will require the UK employer to provide a detailed training programme that meets the requirements of this subcategory.
The role must also be graduate level, and the migrant should be paid the general salary requirements for a job listed in one of the occupational codes, which is £23,100 per year, or the going rate for the job listed, which for a graduate is 70 per cent of the pro-rated going rate listed in the Appendix. The grant of permission will count towards the migrant’s total of five years’ stay in the UK under the Global Business Mobility route.
The Global Business Mobility UK Expansion Worker route is for overseas migrants assigned by their sponsors to undertake business expansion work in the UK. The route is aimed at replacing the Sole Representative provisions in the Representative of an Overseas Business route. Senior executives or specialist workers of an overseas company can come to the UK to establish a wholly owned subsidiary or register a UK brank for that overseas parent company. There must be no existing branch, subsidiary or other representative in the UK, although if the UK entity merely has a legal existence but does not employ staff or transact any commercial activities, the route may still be available.
The new route is also designed to accommodate those overseas migrants that do not necessarily fall in the Senior or Specialist Worker route above, because their sponsor company has not yet begun trading in the UK. Therefore, the requirements are much the same as those needed for the Senior or Specialist Worker route. Generally, the UK Expansion Worker visa will be granted for a period of 12 months or less and this particular route can be held for a maximum of two years, out of the total of five available to those overseas migrants with permission to stay in the UK under the Global Business Mobility routes.
Overseas migrants are eligible for the Global Business Mobility Service Supplier route where they are undertaking a temporary work assignment in the UK and such work falls into one of two categories. Either they are a contractual service supplier employed by an overseas service provider to undertake the specific work in the UK, or they are a self-employed independent professional based overseas. The route will replace the contractual service supplier and independent professional provisions in the Temporary Work – International Agreement route, in a bid to simplify the PBS immigration routes.
The overseas migrant must have obtained a contract for their work in the UK that should be registered with the Home Office and for a service that is covered by one of the UK’s international trade agreements. The overseas work requirement will be met where a migrant has worked for the overseas service provider for a cumulative period of 12 months outside the UK and is still working for the same provider at the time of submission. The migrant should supply a service to a high standard, indicated by the educational requirements. The individual should be educated to a degree level in the relevant field or hold an equivalent level technical qualification, and must have at least three years’ professional experience (or at least six years if they are self-employed or supplying chef de cuisine services (under the CARIFORM-UK Economic Partnership Agreement)). Additionally, the nationality of the overseas migrant should be the same as the country in which the overseas service provider is based, though there are some exceptions, depending on the service being provided. There is no points-based salary requirement for this route.
Where a migrant is being seconded to the UK as part of a high-value contract or investment by their overseas employer, they may be eligible for the Global Business Mobility Secondment Worker route. This route is the only route in the Global Business Mobility scheme that is not replacing in whole or in part any other PBS immigration options and is a wholly new provision.
The route is similar to the Global Business Mobility Service Supplier route in that there are no specific points-based salary requirements for this route and instead it is necessary to demonstrate the overseas work requirement. Asides from this, the general requirements of the route still mirror all other Global Mobility routes.
The Skilled Worker category is the main route for sponsorship for migrants to be employed in the UK. It replaces the previous Tier 2 (General) category with several significant amendments. There has been a suspension on the cap of the number of migrants who can come to the UK and the resident labour market test has been abolished. Further, the skills threshold was reduced from RQF6+ (graduate level to above) to RQF3-5 (A level or equivalent). The general salary threshold has been lowered from £30,000 to £25,600 and the new entrants’ salary rate will be 30 per cent lower than the rate for experienced workers.
Despite changes to the requirements, in 2021 over 90 per cent of Skilled Worker applications were for roles at RFQ6+ and this may be because the cost of hiring a worker from abroad for a lower level position is not feasible. The move away from free movement, and the end of the EU Settlement Scheme in the summer of 2021, has meant that EU nationals now have to apply for Skilled Worker visas. Applications from EEA and non-EEA nationals for this visa are almost 50:50.
The route to applying for a Skilled Worker visa from within the UK has been widened, and migrants who are in the UK on a non-temporary visa (i.e, not a Visitor visa) are eligible to apply for the scheme from in-country. This is a significant departure from the previous system, where there were very limited routes to an in-country application. An employer who wishes to hire a migrant who is already in the UK on a residence visa will be able to assign a Certificate of Sponsorship to that individual without Home Office approval.
This ‘defined’ category applies to all migrants wishing to take up Skilled Worker employment in the UK and are applying from outside of the UK. Unlike every other Certificate of Sponsorship, the sponsoring employer is unable to assign a Certificate of Sponsorship to that individual without prior approval from the Home Office. The panel process from the previous system has been removed, and now approval can be obtained by submitting a defined Certificate of Sponsorship request at any time via the Home Office’s computer system. These requests are processed by the Home Office and the outcome is intended to be communicated within 24 hours.
There are certain common themes and requirements applicable to all Skilled Worker, all ICT, and many Global Business Mobility migrants. In addition to securing sufficient points for salary levels and academic skills levels, with the exception of ICTs, Service Suppliers and Secondment Workers, every overseas migrant must establish English language proficiency. The salary to be paid to any Skilled Worker migrant must also be no less than the prevailing UK salary applicable to that role, as specified within the Home Office’s Standard Occupational Classification (SOC) codes. These were revised and simplified in April 2014 and are likely to be reviewed annually.
The April 2014 revisions to the SOC codes were wide-ranging. The number of SOC codes was substantially reduced and for most (although not all) the prevailing salary rates were increased. They were further increased in 2017, and in April 2019 the new salary rates were both increased and decreased to reflect the latest available occupational salary data for each job type. The list of shortage occupations was reduced, primarily by removing a number of healthcare professionals, with the exception of nurses, who were reinstated to the list in early 2016. In 2021 and 2022, many healthcare professionals have been added back to the list of shortage occupations in the wake of covid-19 and Brexit, with a particular focus on supporting recruitment in the understaffed areas of social care and adult social care. All jobs must now meet the academic qualification RQF3, which applies to A level roles. The latest revisions to the codes took place in October 2019, when a significant number of jobs were added to the shortage occupation list, in particular in the healthcare sector, following a review by the Migration Advisory Committee.
Overseas migrants must satisfy the Home Office that, for a minimum period of 28 days prior to applying for their visas, they have access to minimum cash amounts (known as maintenance) held by them in a regulated banking institution. In the case of certificate of sponsorship holders, the minimum sum is £1,270. If the applicant has a dependant partner this figure increases by £285, and then £315 for the first dependant child (under 18 years old) and £200 for any other dependant child. In the case of A-rated sponsors (i.e., employers), the relevant maintenance levels for both the employee and dependants can be ‘guaranteed’ by that employer, the effect of which is that the overseas migrant does not personally have to provide evidence of minimum cash savings. B-rated sponsors, however, are not permitted to give such a guarantee, and any overseas migrant wishing to be employed by a B-rated sponsor must evidence the minimum cash savings amounts. Employers of Skilled Worker migrants are no longer required to write a separate letter to confirm that they will guarantee maintenance for those dependants, in circumstances where the dependant is applying for his or her visa at the same time as the primary applicant. Further, where an applicant (either a main applicant or their PBS dependant applying at a different time) has been living in the UK for 12 months, they are not required to show maintenance.
The resident labour market test was removed in the PBS, although the employer must still be able to demonstrate that the job position is a genuine vacancy. The job must exist, is genuinely at the appropriate skill or salary level, and has not been created for immigration purposes. Recruiting in a particular way has been indicated as only one of the many factors that may be taken into account by the Home Office. Other considerations can include the job description, whether the sponsor credibly could have a need for that job, and the sponsor’s history of compliance with the immigration system.
To qualify for a Skilled Worker visa, migrants will be required to score 70 points overall across different categories, including a job offer with an approved sponsor at an appropriate skill level, English language proficiency and salary levels. Fifty of those points must be earned by meeting mandatory criteria for the application. They can obtain these mandatory points by having an offer of a job by an approved sponsor, a job offer at an appropriate skill level, and English language skills at intermediate level. A migrant must then obtain a further 20 ‘tradeable’ points through a combination of points for their salary, a job in a shortage occupation or a relevant PhD – totalling 70 points for the application. Points awarded for salary are ‘tradeable’ on a sliding scale, so that individuals with a salary of £23,040 will still be able to earn points for salary. The job must also meet the ‘going rate’ requirement for the occupation.
Individuals earning £20,480 or more may still be eligible under the scheme through the acquisition of points in other areas, such as working in a sector where there is a skills shortage or having a PhD in a subject relevant to the job. The Migration Advisory Committee has been commissioned to produce a shortage occupation list covering all jobs encompassed by the skilled worker route and to keep the list under regular review. The jobs that meet this requirement are all set out within the SOC codes set out in Appendix Skilled Occupations of the Immigration Rules. Jobs in the shortage occupation category may be paid 80 per cent of the going rate for the occupation code, provided the salary is minimum £20,480 per year.
‘New entrants’ to the UK labour will continue to benefit from a reduced salary threshold for three years in the new system. A new entrant Skilled Worker includes individuals switching from the Student or Graduate route to the Skilled Worker route, those under the age of 26, as well as those working towards recognised professional qualifications or moving directly into postdoctoral positions.
Set out below is the current points table applicable to overseas migrants hoping to qualify for a Skilled Worker job. In this regard, the only salary levels permitted to be taken into account are those that are guaranteed to be paid, and not those that vary, such as discretionary or performance-based bonuses.
The points requirements for Intra-Company and certain Global Business Mobility migrants are more simplified, and no points are tradeable. Set out below is the current points table applicable to overseas migrants hoping to qualify for an Intra-Company job or for Senior or Specialist Workers, Graduate Trainees or UK Expansion Workers. As there is no English Language requirement in the Intra-Company, Senior or Specialist Worker, Graduate Trainee and UK Expansion Worker categories, a migrant is only required to score a total of 60 points.
The points requirements for Service Supplier and Secondment Worker categories have been simplified further and only 40 points are needed in two categories. Again, no points are tradeable. Set out below is the points table coming into force in 2022, applicable to overseas migrants hoping to qualify for a Service Supplier or Secondment Worker position in the UK.
Those applying for the Service Supplier Global Business Mobility route, the requirement for a job to be at an appropriate skill level falls into two options: Option A or Option B. Option A requires the applicant to be sponsored by a sponsor with a contract with an overseas provider, for a job in an occupation code listed in Appendix Skilled Occupations that is identified as eligible for the Global Business Mobility routes. Option B requires the applicant to demonstrate they have a university degree or equivalent level technical qualification, unless they are employed by an overseas service provider supplying a service in one of a number of categories listed (including fashion and modelling, management consulting services and technical testing and analysis). Similar to Secondment Workers, in Option B, Service Suppliers will have to evidence their professional qualifications.
Applicants in these categories are required to pay the Immigration Health Surcharge. Additionally, those prospective migrants who are coming from certain countries where tuberculosis continues to be a major health risk (such as China, Hong Kong, India, the Philippines, Russia and Sri Lanka) are required to obtain from an approved medical practitioner a certificate to confirm that they are not suffering from tuberculosis.
Unlike ICT migrants, Global Business Mobility migrants and those employed in the UK with the benefit of a Skilled Worker certificate of sponsorship (whether defined or undefined) are permitted to apply for ILR once they have lived in the UK and worked in a Skilled Worker category for five years (time spent in the Tier 2 (General) category can be combined with time under the Skilled Worker category to meet the five-year eligibility period). They will, however, be required to establish at that time that they still meet all the criteria applicable for continuing approval of their Skilled Worker employment, including confirmation from their employer that they are still required for the job. This requirement was introduced on 6 April 2011.
In addition, from April 2016, all Tier 2 (General) – now Skilled Worker – ILR applicants must meet a minimum pay threshold as well as the prevailing wage for their particular job. This amount was lowered under the new PBS, and for applications submitted from January 2021 the minimum threshold to be met is £25,600 per annum. This threshold is a decrease of nearly £10,000 from the previous system.
The maximum permitted period of stay under the previous system for Tier 2 (General) has been removed, and a Skilled Worker Migrant can extend their permission to remain in the UK indefinitely if they do not apply for ILR. Skilled Worker migrants can obtain a maximum initial period of leave of five years. There is no longer any cooling-off period available for migrants leaving the UK for a short period of time, with the exception of those on the Global Mobility route. On that route a migrant is permitted to hold leave for a period of up to five years in any six-year rolling period, or up to nine years in any 10-year rolling period for high earners.
A final point on procedural matters is that if Skilled Worker migrants are in the UK and fail to apply to renew their stay before their visa expiry, there is a 14-day ‘grace period’ given to them so that there will be no adverse effect on their immigration history provided that they do apply to renew their status (in country) within that 14-day period, with persuasive reasons for the delay.
When applying for ILR, overseas migrants are permitted to spend as many as 180 days in each year out of the UK during the prescribed five-year period without continuity of stay being broken. The effect of this is that, provided that the overseas migrant does not spend more than 900 days out of the UK during the five years leading to eligibility for ILR, and provided that these absences do not exceed 180 days in a year and are all work-related, approved annual leave or for compassionate purposes, ILR can be approved. This requirement was first introduced in December 2012 to correct inconsistencies in approach by Home Office caseworkers when considering ILR applications and whether discretion on length of absences should be exercised or not. For periods of leave granted after January 2018 that will contribute to the qualifying period for ILR, the 180-day absence limit is calculated on a rolling basis and the absences will be taken from within any 12-month period rather than a given year. Leave issued before this date will still be calculated in consecutive 12-month periods. The same also applies to PBS dependants if applying after January 2018.
These changes are part of the government’s continuing wish to separate the historical link between temporary employment and permanent residence. Additional changes in this regard have come into place with the Global Business Mobility Routes and other PBS options this year, which will be subject to review upon performance as individuals start to apply. Whether or not any additional changes in this regard will occur is subject to ongoing consultation.
From April 2017, the requirement to provide a criminal-record certificate was extended to include Tier 2 (General) entry clearance applicants – now Skilled Worker – coming to work in the education, health and social care sectors, partners of the main applicants as above and partners applying overseas to join an existing Skilled Worker migrant working in one of those sectors. Certificates must be provided for any country in which the applicant has resided for 12 months or more (whether continuous or in aggregate) in the past 10 years prior to their application, while aged 18 or over. Certificates from the applicant’s most recent country of residence will normally only be considered valid if they have been issued no earlier than six months before the application date. Certificates from countries prior to the applicant’s most recent country of residence must normally cover the entire period of residency (up to 10 years prior the application date) but will otherwise be considered valid indefinitely.
The government has, for the last few years, intended to create a ‘broader unsponsored route’ within the PBS to run alongside the employer-led system. The aim was that qualifying individuals would be able to come to the UK without a job offer, though policy plans were being balanced with an attempt to maintain the integrity of the immigration options available and to take back control of immigration numbers. Two new routes have been introduced in 2022 with the aim of filling this ambition: the High Potential Individual and Scale-Up routes.
After being announced in March 2021, from April 2022 a new points-based route has been introduced for recent graduates of top global universities called the High Potential Individual (HPI) route with the aim of continuing to attract the best and brightest to the UK so that the country maintains its status as a leading international hub for emerging technologies. Work, including self-employed work, is permitted on this route without the need for sponsorship. One of the main aims for this route is to enable high-potential overseas migrants to enter the UK and look for work here.
Applicants for this route must have a qualification equivalent to either a UK bachelor’s or postgraduate degree qualification from one of the top global universities outside the UK, as decided by the Home Office in a list published online annually. The Home Office will use pre-existing ranking systems to extract their list of universities, with the criteria being that the university must be listed in the top 50 universities in at least two of following three ranking tables: the Times Higher Education World University Rankings, the Quacquarelli Symonds World University Rankings, and The Academy Ranking of World Universities. The degree should have been awarded within five years of an application being submitted.
English language and financial requirements (for those applying for permission to enter or who have been in the country for less than 12 months) will also have to be evidenced when submitting an application.
Migrants on this route will be granted permission for a period of two years if they are relying on qualifications equivalent to a UK bachelor’s or master’s level degree, and for three years if they are relying on qualifications equivalent to a UK PhD.
From April 2022 a new Scale-up route has also been made available to allow overseas migrants with a job offer at the required skill level and from a recognised UK Scale-up organisation to qualify for a fast-track visa.
The premise behind this route is that overseas migrants apply to obtain entry clearance as a Scale-up Worker before arriving in the UK. To be granted this leave the requirements are similar to that for a Skilled Worker, including sponsorship. Sponsorship is required for entry into the UK; however, it does not need to be held for longer than six months out of the two years that permission will initially be granted for. Applications for leave to remain can be made as a Sponsored or an Unsponsored Application. Instead of providing evidence of sponsorship for their extension, applicants can show that their PAYE earnings were at least £33,000 per annum or the going rate for their position (whichever is higher) for at least 50 per cent for their time in the route. Such an extension will be granted for three years, and settlement can be reached on the same grounds after this five-year period.
A new category specifically for skilled migrants working in the healthcare sector was introduced in August 2020, assuredly in response to the contributions of health and care workers in the UK during the covid-19 pandemic. The Health and Care Visa currently exists within the purview of the Skilled Worker Visa. It allows medical professionals to come to or stay in the UK to do an eligible job with the NHS, an NHS supplier or in adult social care. A migrant intending to apply under this category must meet the requirements of the Skilled Worker visa and must additionally be a qualified doctor, nurse, health professional or adult social care professional working in an eligible health or social care job.
Migrants and their dependants in the Health and Care Worker category pay lower application fees and are exempt from paying the Immigration Health Surcharge. The application process for this category is also intended to be streamlined, with a dedicated team handling applications, providing decisions more quickly than other working categories.
The end of free movement has had a significant effect on the health and care sectors and investigations are due to be published by the Migration Advisory Committee this year to highlight the exact impact of the changes. In the meantime, care worker jobs have been made eligible for the Heath and Care Visa and placed on the Shortage Occupation List. The rate of applications for senior care workers has risen through 2021 to between 400 and 500 a month.
Some of the old Tier 5 route has remained intact and is now called T5 Temporary Workers. This route was divided into several categories and its purpose is to enable individuals to enter the UK for short periods to take up temporary work before returning to their home country. No immigration cap has been imposed upon these routes; in most instances, it would be futile to do so, in view of the temporary nature of the roles that overseas migrants will fill. Changes that came into force in April 2022 further remove some of the Temporary Worker categories. The categories are as follows.
This largely mirrors the (now defunct) working holidaymaker scheme, which permitted young Commonwealth citizens to enter the UK for up to two years for the purposes of temporary employment and taking an extended holiday. The requirements under the new scheme remain much the same, as it enables applicants between the ages of 18 to 30 from certain countries to enter and work in the UK for two years. However, the requirement that such applicants also ‘take a holiday’ no longer applies. The countries that benefit from this scheme are limited to Australia, Canada, Hong Kong, Japan, Monaco, New Zealand, South Korea, San Marino and Taiwan, along with British overseas citizens, British overseas territories citizens and British nationals (overseas). The scheme was extended to include San Marino from January 2021 following the end of free movement, and to Iceland and India from January 2022.
The number of applicants from each country is limited, as follows: Australia, 30,000; New Zealand, 13,000; Canada, 6,000; India, 3,000 and the remaining countries are allocated 1,000 places each. The selection process in Taiwan is a lottery-based scheme split into two ballots in January and July each year. There is no allocation restriction for British citizens or nationals mentioned above.
This category was created to enable overseas migrants to take up temporary employment, an internship or a enter the UK as part of a graduate training programme. Applicants need to be issued with a certificate of sponsorship by an ‘overarching body’ that has previously been approved by the Home Office. There are currently approximately 50 registered overarching bodies permitted to assign certificates of sponsorship to suitably qualified applicants, all of which must be independent from the employers with whom the overseas migrants will work or undertake their internship programme.
Government authorised exchanges (GAEs) are included in this broad category. The maximum period of stay permitted to applicants coming for a work experience programme under Tier 5 (GAE) is 12 months. Work experience programmes that fall within this category will be work experience and internships run by the Bar Council, BUNAC, the Commonwealth Exchange Programme, Fulbright UK/US Teacher Exchange Programme and Tier 5 intern schemes generally.
However, when applicants are seeking entry for GAE research and training programmes, they will continue to be permitted to stay in the country for up to 24 months. Programmes that benefit from the longer period of stay include Chatham House overseas visiting fellowships, Commonwealth scholarship and fellowship plans, sponsored researchers, UK–India education and research initiatives and the US–UK Education Commission (also known as the US–UK Fulbright Commission). From April 2022, GAE applicants will be able to apply for one of the new alternative Global Business Mobility routes instead, and new applicants will no longer be accepted from 11 April 2022. Using a combination of Global Business Mobility routes, an overseas migrant who would have previously only been able to stay in the UK for a limited period of time may now have an option to progress towards settlement.
Similarly, under the PBS from January 2021, new categories for religious workers and charity workers to enter the UK for a short-term period were set up. An International Agreement route was also set up for an individual coming to the UK to provide service covered under international law, such as private servants in diplomatic households, or employees of overseas governments and international organisations.
Now, in addition, the Minister of Religion route is available for any person who has a key leading role within their faith-based organisation or a religious order in the UK and is an option that can lead to more permanent settlement in the UK in the long term. The overseas migrant must meet sponsorship, financial and English language requirements totalling 70 points.
The Tier 5 Temporary Worker visa also has a Seasonal Worker category. The route was originally available for edible horticulture, poultry production work, and specific pork butchery work, though there have been some changes to the eligible occupations in 2021 and 2022. Such occupations initially came under the Seasonal Workers Pilot scheme, launched in 2019 but today, Seasonal Workers can apply under the broad Temporary Worker category. Towards the end of 2021, the government agreed to some temporary visas for various occupations such as HGV drivers and poultry workers, which formed part of a balancing act between maintaining the general principles of the Skilled Worker route and applying flexibility in the face of employment shortages and other challenges that could have substantial consequences on the economy, particularly in the wake of Brexit.
As of 28 February 2022, haulage drivers transporting food goods no longer have access to this route. Limitations have also specifically been put on pork butchery roles, who could be granted permission for a maximum period of six months if their application was submitted before 6 April 2022, when this route closed for pork butchers. Butchers can also use the Skilled Worker route to remain in the UK on a more permanent basis. In April 2022, the category was also being extended to include roles in ornamental horticulture and a new minimum hourly pay requirement of £10.10 per hour (equal to the minimum hourly rate for Skilled Workers).
The routes for creative and sporting individuals have been separated in the new PBS, although the requirements remain similar for each category. This enables artists, entertainers or sportspeople to enter the UK to perform at a particular event, which may not necessarily be a one-off situation, as it also includes actors taking part in theatrical productions that may last for a considerable period. The visa can be issued for a period of up to 12 months. In the case of sportspeople, they must be internationally established at the highest level and their presence in the UK must be regarded as making a significant contribution to a sports event or series of events. In each instance, the employer, or even a management company, agency or promoter, can assign the certificate of sponsorship. Where the artist or sportsperson intends to stay in the UK for less than three months, that individual may be exempted from obtaining a visa or entry certificate before coming here, unless that individual is a visa national (i.e., the citizen of a country for which a visa must be secured before entry to the UK is permitted for any purpose). Sportspeople seeking to come to the UK on a temporary basis – 12 months or less – are not subject to an English language requirement.
Since the introduction of the Immigration, Asylum and Nationality Act 2006, employers have been subject to an increasing range of obligations, including the requirement to ensure that an overseas migrant has correct work authorisation (through the legal right to work checks), in addition to compliance with numerous sponsorship duties. Along with the 2006 Act, civil penalties were introduced for employers, with fines of up to £20,000 for each unlawfully employed worker, and unlimited fines and up to two years’ imprisonment for knowingly employing illegal workers.
Employers are required to check eligibility to work in the UK for each new overseas migrant before employment commences, and for those with limited entitlement to remain in this country (i.e., everyone except for UK citizens, EEA citizens and those who are settled here), annual checks were required on their continuing ability to work here. From 30 June 2021, EEA citizens joined the group of migrants undergoing these checks. As of that date, employers must check their eligibility to work in the UK in the same way as any other overseas migrants. However, the right to work checks have been relaxed in that once the migrant has complied with the requirements to establish a right to work in the UK, there is no longer any requirement to check their immigration status annually and this can be deferred to either their visa expiry date or a date that their employment comes to an end, if earlier. That has reduced the regulatory burden on employers, particularly large employers, who find it difficult to deal with annual checks for a substantial and mobile workforce; an issue that has become even more prevalent in the wake of covid-19 and new flexible working arrangements.
Once a UK employer has been issued with a sponsor licence, the Home Office has the power to suspend, downgrade or even revoke the licence. This could have catastrophic consequences for any overseas migrant working for that employer with a sponsored work visa by the employer; for example, if the sponsor’s licence is revoked with immediate effect, that employer is unable to continue lawfully employing that individual. The employee will then have their leave curtailed to 60 days, during which period they must seek alternative employment with a different sponsor, failing which he or she will be required to leave the country, together with any family members (and may be subject to the cooling-off period).
The Home Office has not identified all the circumstances in which it will suspend, withdraw or downgrade a sponsor’s licence, but when considering appropriate action, it will consider the seriousness of the sponsor’s failures; whether the sponsor’s acts or omissions are part of a consistent or sustained record of non-compliance; and whether the sponsor has taken any remedial action to minimise those failures. Suspension of a sponsor’s licence will prevent that employer from assigning any new certificates of sponsorship, and if the employer attempts to assign a new certificate of sponsorship, it is likely that its sponsor licence will be revoked.
The Home Office will revoke a sponsor licence for a variety of reasons, including where it stops trading for any reason (including insolvency); where it has been issued with a civil penalty for employing one or more illegal workers, and the fine imposed for at least one of those workers is the maximum amount; or where a civil penalty has been imposed and has not been paid within 28 days.
A sponsor licence will normally be revoked in circumstances where the employer is convicted for any offence introduced by a variety of immigration statutes, including the Immigration Act 1971, the Immigration Act 1988, the Nationality Immigration and Asylum Act 2002, and the Immigration, Asylum and Nationality Act 2006. Licences will also be revoked for any offence relating to trafficking for sexual exploitation or any other offence that shows that a sponsor poses a risk to immigration control.
Very few of the previous employment-based immigration routes have survived the introduction of the PBS, and even fewer will survive the changes coming into force in 2022. However, the most important that have done so are as follows.
Although this route for entry to the UK has been in existence for many years, it was only in September 2002 that it formally became part of the UK’s Immigration Rules. Providing that the appropriate criteria were met, overseas domestic workers in a private household could accompany their employer to the UK for an initial period of one year, which would then be extended annually (if the criteria were still met), until they became eligible for ILR after five years’ continuous employment in this category. With effect from 6 April 2012, the maximum permitted stay for such workers is six months for new applicants and only then in circumstances where the overseas employer is coming to the UK as a visitor. No extensions beyond six months are now permitted, and this route to settlement has been extinguished. Prior to April 2012, a domestic worker in a private household could bring his or her dependants to the UK, who themselves were permitted to take up employment. Under the new regime, domestic workers are no longer permitted to be joined by their dependants.
This is the final remaining immigration benefit reserved only for Commonwealth citizens, and it remains in place because of much diplomatic lobbying by, primarily, the governments of Australia, Canada and New Zealand.
The requirements that the applicant must meet are that he or she is a Commonwealth citizen, has at least one UK-born grandparent and intends either to take employment or seek employment upon arrival in the UK.
This route is not available to those who have no wish to work but merely have a UK-born grandparent. The applicant must either have a job, or must intend to find one, before the entry certificate will be issued.
The application is submitted to a British consulate in the applicant’s home country or country of residence and, if approved, the visa will be valid for five years. Upon the expiry of that five-year period, the applicant and immediate family members (spouse and children under 18 years of age) are eligible for ILR, provided they are either working at the time of application or can evidence attempts to find work in the previous five years. In November 2019, the Home Office issued updated policy guidance for caseworkers confirming that applicants working as unpaid volunteers (or intending to be) will satisfy the working criteria of the application.
Previously, this category included provisions for Sole Representatives of an overseas company to come to the UK to establish a wholly owned subsidiary or register a UK branch for that overseas parent company. In 2022, this route is now merged into the new Global Business Mobility route, as part of the points-based immigration options. Representatives of Overseas Businesses will now only apply in this category if they are a Media Representative. As a result, overseas migrants who would have previously been able to use their time as a Sole Representative of an overseas business towards settlement will no longer be eligible for settlement under the new Global Business Mobility Expansion Worker route. A Media Representative is an employee of an overseas media organisation who is posted to the UK on a long-term assignment. The route is open to employees of an overseas newspaper, news agency or broadcasting organisation being posted on a long-term assignment as a representative of their overseas employer, where there is no requirement to take operational decisions. Those qualifying under the subcategory for employees of overseas news or media organisations will be granted three years’ leave, during which they may only work for the employer in question. Provided these criteria are met, this status can be extended, following which the Media Representative will be eligible to apply for ILR. There is also an English language requirement for media employees.
The Visitor Rules have been simplified and new rules took effect from 1 December 2020. There are now four types of visitor visa: Standard visitor, Marriage and Civil Partnership visitor, Permitted Paid Engagement visitor and Transit visitor.
Business visitors can come to the UK under the Standard visitor category. They can visit the UK for different business reasons such as attending meetings, conferences, trade fairs or negotiating contracts. Business visitors must remember that there is a distinction between ‘working’ in the UK and ‘entering the UK for business purposes’. The former requires express permission to work in the UK whereas the latter does not.
The UK’s Immigration Rules have only rarely permitted ‘short-term working’ activities, and never where the individual receives remuneration or a fee for their services.
However, this visitor category was established to deal with prearranged specific activities where the overseas visitor is permitted to enter the country as a visitor and to receive a fee. This route is restricted to those coming for one month or less and no formal sponsorship from any UK employer or institution is required. Examples of permitted activities for a visitor in this category of stay are:
A visa will be required for visa nationals, although not for any other individual who would not normally require a visa to secure entry to the UK. However, non-visa nationals must still be able to satisfy an immigration officer at a UK port of entry that their activities clearly fall within the parameters of the new visitor category.
A major increase in the cost of recruiting overseas labour (now including EEA nationals) was introduced in October 2020. The immigration health surcharge (or National Health Service (NHS) surcharge as it has become known) was initially set at £200 a year for temporary migrants (with a primary applicant or their dependants or both) and £150 a year for students. This was increased on 8 January 2019 to £400 and £300 per year, respectively and a little over a year later it was increased to £624 and £470 per year respectively. Dependant children are no longer charged the same amount as a primary applicant, being charged £470 per year instead. The fees must be paid for the entire period of leave being requested at the time that these applications are being applied for. Duplicate payments for the same period, for example when an applicant changes their immigration route part-way through their current visa, are refunded.
The NHS surcharge is paid by all overseas nationals who apply to come to the UK either to work, study or join family for a limited period of more than six months and will also be paid by the same individuals who are already in the UK and apply to extend their stay. This includes Australians and New Zealanders, who were previously exempt.
The exemptions to the requirement to pay the surcharge are:
Although there is a certain logic to imposing this surcharge, it is an additional burden imposed on large employers (in particular) who operate in the global marketplace and who recruit hundreds, if not thousands, of overseas migrants. The burden caused by this surcharge is further increased as a result of the removal of EEA nationals from the UK labour market following end of free movement. This surcharge can be paid by the employee or the employer. There is no requirement for the employer to pay this on behalf of a sponsored employee.
Applicants for visas from migrants who will stay in the UK for more than six months must secure tuberculosis certificates if applying from certain countries where tuberculosis is an ongoing health risk.
An additional charge is payable by employers who employ migrant workers in skilled roles under the Skilled Worker or Intra-company Transfer (ICT) sponsorship scheme on or after April 2017. From April 2022, the Immigration Skills Charge (ISC) is also payable for all Global Business Mobility routes.
The ISC was announced alongside a number of changes to the Immigration Rules following the MAC’s report of January 2016 advising the government on how to ‘significantly reduce the level of economic migration from outside the EU’. It is notable that this pre-dated the June 2016 referendum and the charge is now applied to all overseas migrants.
The ISC is set at £1,000 per employee per year, and at a reduced rate of £364 for small or charitable organisations. Companies that have fewer than 50 employees, or turnover of less than £6.5 million and where their balance sheet is no more than £3.26 million or they are charitable organisations will pay a lower ISC of £364.
The ISC will not apply to a sponsor of an overseas national who was sponsored in Tier 2 before 6 April 2017. Furthermore, it will only be imposed on main applicants so it will not affect dependent family members. In practice, the ISC increases the cost of a five-year Skilled Worker or ICT sponsorship by £5,000. Essentially it is designed to reduce demand on the scheme and result in additional opportunities for resident workers.
The ISC is paid at the time of assigning Certificates of Sponsorship to overseas migrants by the employer and the Certificates of Sponsorship fee is currently £199 for all overseas migrants except for nationals of Austria, Belgium, Croatia, Republic of Cyprus, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Luxembourg, Malta, Netherlands, North Macedonia, Norway, Poland, Portugal, Slovakia, Spain, Sweden and Turkey. These countries are exempt from the Certificates of Sponsorship fee. The Certificates of Sponsorship and ISC must be paid by the employer and the employer cannot request or allow the employee to pay for these fees in any way.
With effect from February 2016, private landlords are required, pursuant to the Immigration Act 2014 and the ‘compliant environment’ policy (formerly ‘hostile environment’), to conduct immigration status checks on their tenants. From 2022, it will start becoming possible to conduct checks for many overseas migrants using the Home Office’s online registration system (also applicable to right to work checks). Financial penalties of up to £3,000 can be imposed on landlords who fail to undertake the immigration checks or who rent property to a person whose immigration status (or lack of one) means that they do not have a right to rent in the UK.
Immigration status checks must be conducted by either the landlord or lettings agent before entering into a residential tenancy agreement with any adult who is to occupy the premises as their main or only home. In the first six months of operation, the Home Office Landlords Checking Service right-to-rent aid was used over 11,000 times and the helpline took over 800 calls to support landlords, agents and tenants in implementing the scheme.
The right-to-rent provisions were strengthened by the Immigration Act 2016, which introduced mechanisms for landlords to evict illegal migrant tenants more easily and, in some circumstances, without a court order. In practice, landlords will request a Notice of Letting to a Disqualified Person (NLDP) from the Home Office, which, if issued, confirms the tenant is disqualified from renting in the UK as a result of their immigration status. On receipt of this, the landlord will be expected to take action to ensure that the illegal migrant leaves the property.
However, on 1 March 2019, a High Court ruling4 stated that the right-to-rent policy was certain to cause discrimination on the grounds of race and nationality. The Court made a declaration of incompatibility with human rights. This is supported by various reports, one being from research undertaken by the Residential Landlords Association in 2018 that confirmed 42 per cent of landlords, as a result of the policy, were less likely to agree to a tenancy with a person who did not hold a British passport. The government appealed this ruling in January 2020 at the Court of Appeal and, on 21 April 2020 the Court of Appeal ruled that the checks are not unlawful under the Human Rights Act, reversing the decision of the High Court.
Wider enforcement measures with respect to banks and building societies have made it even more problematic for illegal migrants to live and work in the UK. Measures introduced by the Immigration Act 2016 provided the Home Office with an escalating range of options, including where a current account holder is confirmed to be unlawfully present in the UK. This provision was implemented in January 2018 and placed a burden on banks and building societies to check the immigration status of personal bank account holders in the UK and inform the Home Office where legal right of residence is not found. The Home Office will then conduct its own checks and may apply to the courts for an order instructing the bank or building society to freeze the individual’s accounts. This further enables the Home Office to prosecute individuals for the criminal offence of working illegally and recovering wages as proceeds of crime.
The Home Office states that (at this stage) only details of illegal migrants who are liable for removal or deportation from the UK or who have absconded from immigration control will be checked (against a list provided by anti-fraud organisation Cifas). However, following the Windrush scandal, immigration checks on bank accounts were suspended in May 2018 and, at the time of writing, remain so.
Since 2008, employers have been required to complete legal right to work checks on all employees reporting for work on or before their start date to prevent illegal working. This involves a manual check of an employee’s identity document and evidence of entitlement to work in the UK, such as with a British or EU passport or a visa that permits work. Carrying out a compliant right to work check (with appropriate document retention) provides the employer with a statutory excuse, which can be used as either a partial or complete defence, if the employee has been working illegally. Failure to carry out the required right to work check can result in the employer being subject to significant financial penalties or imprisonment.
From 28 January 2019, employers have been able to conduct legal right to work checks online. The online check is undertaken via the employer’s online profile of the official government website and the Home Office will keep records of checks undertaken. Completion of a correct online right to work check, with appropriate record-keeping, provides the employer with a statutory excuse.
The online right to work check must be kept electronically or in hard copy on the personnel file (as per previous requirements) and must be kept for the duration of the migrant’s employment, plus an additional two years from that date.
As part of covid-19 measures, as of March 2020, some temporary changes were made to the current guidance that allowed employers to conduct checks online via video calls. Throughout 2022, the Home Office have chosen to maintain a level of continuity in the process of checking an individual’s legal right to work in the UK by extending the covid-19 adjustments. Employers will continue to have the choice of conducting online checks until October 2022 after employers gave positive feedback on being allowed to use third-party ID providers to digitally check British and Irish passports.
The extension comes as the Home Office roll out their new Identification Document Validation Technology (IDVT) this year, which hopes to support long-term, post-pandemic work practices, accelerate recruitment and onboarding processes, enhance employer mobility and the security and integrity of right to work checks. The scheme has become available to certain employees already and the aim is for all employees will eventually be able to access fully electronic right to work checks. The online system is aimed to provide employers with a statutory excuse against a civil penalty in the event of illegal working involving the subject of the check and should therefore prove to be more efficient and effective than manual checks.
It is anticipated that employers will use the government extension of covid-19 adjustments to develop commercial relationships with IDVT providers, update their pre-employment checking processes and onboard their chosen provider so that the implementation of IDVT will run smoothly. It remains unclear how the charges payable for using IDVT will affect some smaller employers, and whether they will resort to fully compliant manual checks again at the end of the extension period.
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