On 13 July 2020 the Home Office published much awaited further guidance on how the proposed new points-based immigration system will work when it is implemented on 1 January 2021.

The significant change of course is that from 1 January 2021 free movement is ending for those from the EU. New entrants to the UK from 1 January 2021 will be dealt with under the same immigration system which will treat EU and non EU citizens equally.

The updated Home Office Guidance on the points-based immigration system

In the following paragraphs we set out what the updated guidance contains in relation to the points-based immigration system after Brexit.

What will the requirements be to work in the UK from 1 January 2021?

Applicants to work in the UK will have to have a minimum of 70 points to qualify for a visa under the new points based system.

The new guidance confirms that all applicants will need to show:

• they have a job offer from a Home Office approved sponsor
• the job offer is at the required skill level – RQF 3 or above (A Level and equivalent)
• they speak English

These three criteria will earn a maximum of 50 points (shaded in grey in the table below). The remaining 20 points will be based on the salary for the role or the educational qualifications the applicant holds and makes use of the new “tradeable” points system.

The published points system is as follows:

Changes for sponsors

Employers will need a sponsor licence if they want to recruit EU and non-EU citizens from 1 January 2021.

Applicants to work in the UK will have to have a minimum of 70 points to qualify for a visa under the new points based system. Sponsor licences will be renamed “Skilled Worker Licences” and licences for intra group transfers of employees within a wider company group will be renamed “Intra-Company Transfer licences”.

New checks will be made to ensure that sponsors are solvent (in addition to the existing checks). Key individuals within the sponsoring employer will also have to undergo checks in relation to criminal records and other, as yet unspecified, security checks.

The guidance document confirms the Government is committed to delivering “radical changes” to the sponsorship process, streamlining and simplifying it for users and substantially reducing the time it takes to bring in a migrant. This will include the suspension of the current cap on numbers and removing the need to advertise roles in a specific way before appointing under the current Resident Labour Market Test. Additional enhancements to the system are mentioned but no further details have been provided.

The guidance provides some useful examples of how the new points thresholds can be met with points awarded for different combinations of salary thresholds and other attributes.

Employers must pay £1,000 per skilled worker for the first 12 months, with an additional £500 charge for each subsequent six-month period. Some discounts apply to smaller employers and charities.

Will there be a route for non-skilled workers?

Unfortunately not; the points based system for Tier 2 visas only applies to skilled workers. However, it does offer slightly more flexibility than the current system and introduces a new process of “tradeable” points to achieve this. The minimum salary threshold under the current rules is £30,000 but under the new points system it is £20,480, providing workers can meet other educational requirements or employers can show that the job is in a shortage area.

Employers can also use the youth mobility scheme, through which 20,000 young people can come to the UK annually from 8 countries around the world, and the Home Office has confirmed there will be separate plans for scientists, graduates and NHS workers which should give employers some additional flexibility in those areas.

However, it is unlikely that these measures will be enough to replace the current level of recruitment from EU countries for workers carrying out un-skilled jobs for UK businesses and supporting the UK economy.

Graduate route

Some further detail has been provided on the Graduate route in the recent update. Students that have completed an undergraduate or master’s degree can apply for a two year Graduate visa to work in the UK. PhD students can apply for three years. These individuals will not need to be sponsored and will be eligible to switch into other work routes. Employers will need to ensure that they conduct appropriate checks on their right to work.

Highly skilled workers

The guidance confirms that the Government still intends to create a broader unsponsored route within the new system to attract the most highly skilled workers to come to the UK without a job offer. This route will not open on 1 January 2021 and will be considered over the coming year with details to be confirmed.

New Health and Care Visa

Following political pressure the Government announced we would have a “Health and Care Visa”. This was to include the benefit of reduced application fees, dedicated support and “fast-track entry”.

Despite the name however, the guidance confirms that this new visa will exclude care workers, care assistants and home carers. This therefore will not assist the majority of workers and employers in the care sector and has been widely criticised for this reason.

What other changes are being introduced?

The updated guidance provides an initial indication of some other changes that will be made under the new system.

Written confirmation of immigration status

One of the challenges faced by the Government is how to ensure that EU citizens who already have the right to live and work in the UK, but previously have not been required to register, can now be documented. The Government wants to avoid a repeat of the Windrush scandal where individuals were granted the right to remain in the UK but not the documents to prove this, leading to later problems in determining their rights. This resulted in the implementation of the EU Settlement Scheme.

Although the Government previously appeared to be considering e-Visas and documents, the guidance confirms that going forward all applicants will receive written confirmation of their immigration status. EU citizens will additionally be provided access to an online service which they will be able to use to confirm their rights and to access services where necessary. This will be helpful to address the documentation problem, particularly for employers where carrying out right to work checks.

Easier right to work checks

The good news is that EU and non-EU citizens coming in under the new system will be able to use an online system to demonstrate their right to work. The proposed system is already in use on a limited basis and is due to be updated in line with the proposed changes. Employers will be able to conduct right to work checks remotely, including via video call.

Easier switching routes

In other good news the current switching rules will be relaxed. At the moment for a significant number of applications, where an individual wishes to switch from one immigration route to another they are required to physically leave the UK and apply from out of country. This has posed a significant issue following the COVID-19 pandemic and has had to be temporarily relaxed in some cases.

Under the new rules most migrants will be able to switch from one immigration route to another without having to leave the UK.

What should employers do next?

With less than 6 months to go the updated guidance still leaves many questions unanswered. The Government has an enormous task ahead of it to update all of the immigration systems and connected guidance documents ahead of 1 January 2021.

Companies with an existing sponsor licence don’t need to do anything other than keep an eye out for updates on the new Scheme. Although now would be a good time to get their house in order and make sure all records are up to date and all processes firmly in place.

Companies who don’t currently have a sponsor licence should consider applying for one sooner rather than later if they are likely to need or want to offer work to people from outside the resident labour market from 1 January 2021. The standard time to process an application is 8 weeks, although this could be longer given the current uncertain effects of Covid 19.

You don’t need a sponsor licence to employ UK citizens, EU citizens who register under the EU Settlement Scheme for either settled or pre-settled status or non-EU citizens with indefinite leave to remain in the UK. However, companies will need a sponsor licence to employ any other worker.

Please contact the Immigration Team if you are an existing sponsor and you are interested in an audit of your sponsorship regime or you would like to explore making an application for a sponsor licence and we would be happy to help.

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