Q&A on new immigration system

Introduction
Q&A

Introduction

Employers have lots of questions regarding the new immigration system that will apply in 2021, particularly with regard to the Skilled Worker visa, which will replace Tier 2 (General) from 1 January 2021. This Q&A – based on questions asked by attendees to a recent webinar – answers employers' main questions.

In these Q&As, unless otherwise indicated, the term 'EEA national' means nationals of countries included in the European Economic Area and Swiss nationals. It excludes Irish nationals, who are already considered 'settled' in the United Kingdom. Irish nationals can, but are not required, to apply under the EU Settlement Scheme (EUSS).

Q&A

For employees who are EEA nationals who started work in October 2020 but are working remotely in their home country due to COVID-19 but will be coming to the United Kingdom in January 2020, will employers need to sponsor them under the Skilled Worker visa and will there be issues with this given that they have already started work?
If the person physically arrives in the United Kingdom by 31 December 2020, even if this is for a preliminary visit, they will be eligible to apply under the EUSS.

If they arrive in January 2021 or later, they will need immigration permission under the UK immigration system in order to live and work physically in the United Kingdom. This may mean that they need to be sponsored under the skilled worker route if there is no alternative route applicable to them based on their individual circumstances.

There are no immigration issues with the person working physically in their home country before they arrive in the United Kingdom; however, there may be other implications (eg, from a tax or social security perspective).

How can the English-language requirement for the skilled worker category be evidenced?
The options for proving English-language ability are expanded in comparison with the current arrangements for Tier 2 (General).

The English-language requirement for the skilled worker category can be met in one of the following ways (the new provisions are specified below):

• In a previous UK immigration application, the person has met the English-language requirement at the level required for their skilled worker application (ie, Level B1 on the Common European Framework of Reference for Languages) – this will be the case if the person has previously been granted permission under Tier 2 (General), for example.
• The person is a national of a majority English-speaking country (ie, Antigua and Barbuda, Australia, The Bahamas, Barbados, Belize, Canada, Dominica, Grenada, Guyana, Jamaica, Malta, New Zealand, St Kitts and Nevis, St Lucia, St Vincent and the Grenadines, Trinidad and Tobago and the United States) (the person's passport will be required as evidence). Malta is a new addition to the list.
• The person has a bachelor's, master's or doctorate-level degree awarded in the United Kingdom (the award certificate, official transcript or official letter from the awarding institution will be required as evidence).
• The person has a bachelor's, master's or doctorate degree level qualification taught in a university or college in certain majority English language speaking countries (ie, Antigua and Barbuda, Australia, The Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Ireland, Jamaica, Malta, New Zealand, St Kitts and Nevis, St Lucia, St Vincent and the Grenadines, Trinidad and Tobago and the United States) (the award certificate, official transcript or official letter from the awarding institution will be required as evidence, along with a UK NARIC confirmation). Malta is a new addition to the list.
• The person has a bachelor's, master's or doctorate degree level qualification that was taught or researched in English (the award certificate, official transcript or official letter from the awarding institution will be required as evidence, along with a UK NARIC confirmation).
• The person has one of the following qualifications that was awarded by an Office of Qualifications and Examinations Regulation-regulated awarding body following education in the United Kingdom which they undertook while under the age of 18: GCSE, A-level, Scottish National Qualification at Level 4 or 5 or Scottish Higher or Advanced Higher in English (language or literature) (the award certificate or official transcript will be required as evidence). This is a new provision.

Resident labour market testing will not be required under the skilled worker route, but will there be any job posting requirements, or is this all going away, with the new process being just to find the right candidate, assess whether a visa is needed and apply for one (ie, through the skilled worker route)?
There will be no job posting requirements for the skilled worker route. However, the process described is correct (for further information on the certificate of sponsorship (CoS) allocation process, please see the answer to "What are the transitional arrangements where the process has started under the old system but the worker will be starting work in the new system?").

As employers need not see qualifications, how are they going to, for audit purposes, verify that the applicant is not lying regarding their qualifications?
Applicants will need to submit any qualification that they are relying on for their application to the Home Office, along with a UK NARIC confirmation if the qualification was awarded outside the United Kingdom. On 1 November 2020 UK NARIC launched new services to specifically verify that a PhD awarded abroad is equivalent to a UK PhD and (if relevant) that it meets the English-language requirement. If a job requires a PhD, employers should follow their usual processes for qualification verification.

If a person is relying on a PhD to score points under the skilled worker route, employers as sponsors must also provide a 'credible explanation' of how the qualification is relevant to the job. If relying on a PhD in a science, technology, engineering or mathematics (STEM) subject, employers must also provide a credible explanation that the qualification is considered by the sponsor to be in a STEM subject.

Does the removal of the cooling-off period for Tier 2 apply to Tier 2 (Intra-company Transfer)?
There will still be a cooling-off period for the intra-company routes.

If the applicant is a 'high earner' (ie, their salary is £73,900 or more (based on working a maximum of 48 hours a week)), they cannot have cumulative periods of UK immigration permission on the intra-company routes amounting to more than nine years in any 10-year period.

If the applicant is not a 'high earner', they cannot have cumulative permission amounting to more than five years in any six-year period.

Is the ONS tool for SOC codes based on the old list of eligible SOC codes? Is there another tool that is based on the new list?
The Office for National Statistics (ONS) Standard Occupational Classification (SOC) occupation coding tool should cover all occupation codes irrespective of whether they are eligible for the skilled worker route.

At present, the new eligible SOC codes are contained in Statement of Changes in Immigration Rules HC 813, Appendix Skilled Occupations, and will be published into the Immigration Rules on GOV.UK on 1 December 2020.

What happens if employers have run out of CoS and have requested additional allocation for visa extensions in 2021?
The Home Office will continue to consider requests for additional CoS allocations and once approved these will be available to the sponsor for assigning under the skilled worker route.

However, CoS for entry clearance applications will need to be allocated by the Home Office on a case-by-case basis, after the sponsor has submitted details of the specific job and salary.

Is having a preference for UK-based and local labour markets over non-UK candidates needing sponsorship permissible or would this potential be discriminatory? The resident labour market test allowed UK (then EU and EEA) workers to come to the fore, without it how can employers show preference to UK and local markets?
It is no longer a requirement for immigration purposes to demonstrate an inability to recruit a suitable resident worker. The Home Office has now moved to a system where the resident labour market is considered to be adequately protected through the salary thresholds that skilled workers must meet, along with the application fees, compliance obligations and payment of the immigration skills charge.

From a race discrimination perspective, employers should ask a candidate to demonstrate their right to work in the United Kingdom only at a later stage of the recruitment process (eg, at the final interview or job offer stage). All candidates should have their right to work checked at the same stage. It is not permissible to consider only applications made by UK-based candidates, for example.

Employers can make employment offers conditional on the person having the right to work in the United Kingdom. If the person has no right to work, employers can consider whether they are eligible for sponsorship and, if so, whether they wish to sponsor them.

If employers have no COS can they ask that only applicants with settled or pre-settled status apply?
No, this would not be permissible. To avoid the risk of race discrimination, employers should ask a candidate to demonstrate their right to work in the United Kingdom only at a later stage of the recruitment process as outlined above.

What process should recruiters follow from 1 January 2021 for EEA applicants for roles in the United Kingdom? What questions, checks and processes should recruiters put in place as they get a lot of applicants applying from Europe and it is not always clear whether they have status under the EUSS? If people can continue to apply for settled or pre-settled status until June 2021 (as opposed to 31 December 2020), when should employers start performing new right-to-work checks on EU nationals and what are these?
Recruiters should follow the same process for all candidates, irrespective of nationality, and ask a candidate to demonstrate their right to work in the United Kingdom only at the point where a job offer is made. The Home Office has confirmed that for EEA nationals starting work between 1 January 2021 and 30 June 2021, employers can still accept their EEA passport as evidence of their right to work in the United Kingdom and will not be required to undertake retrospective checks.

The Home Office is expected to release an update to its employers' guide to right-to-work checks during the first half of 2021, which will provide details of what right-to-work checks will be required for EEA nationals from 1 July 2021.

Is there anything that employers must take into consideration regarding travel on inter-company business from 1 January 2021 (ie, if a meeting was being hosted in the United Kingdom and employers wanted people from across Europe to attend)?
Employers will need to assess whether the proposed activities fall within those allowed for visitors or whether a visa allowing work is required. It is the nature of the activities rather than the length of presence in the United Kingdom that is relevant when making this assessment.

What will be the costs of the new skilled worker route?
The Home Office has confirmed that fees will not differ from those under the current system immediately; however, immigration fees are subject to periodic change. The below outline is based on the current Tier 2 (General) fees.

The skilled worker sponsor licence process includes:

• an application fee – £1,476 or £536 (depending on the sponsor's size); and
• a priority fee (available from 12 November 2020, not mandatory) – £500.

The immigration application for a five-year Skilled Worker visa includes:

• an application fee – £1,220 from abroad or £1,408 from within the United Kingdom;
• a biometric enrolment fee – £19.20;
• a CoS fee – £199;
• the immigration health surcharge – £3,120;
• the immigration skills charge – £5,000 or £1,820 (depending on the sponsor's size); and
• priority fees (not mandatory) – £300 or £500.

If an EEA national moves to the United Kingdom in March 2021, can they still start a new job and apply to the EUSS with no need for a sponsored visa?
If the person is taking up residence in the United Kingdom for the first time on or after 11:00pm on 31 December 2020, they would not be eligible under the EUSS and would need to apply for permission under the main UK immigration system. Whether they will require sponsorship will depend on their personal circumstances (ie, whether they qualify for a non-sponsored visa).

Will someone be able to switch from Tier 2 (Intra-company Transfer) to the skilled worker category without needing to complete the cooling-off period?
Yes, this will be allowed. However, in-country switching to the skilled worker route will not be allowed for people holding the following UK immigration permissions:

• visitor;
• short-term student;
• parent of a child student;
• seasonal worker;
• domestic worker in a private household; and
• permission granted outside the Immigration Rules.

What is an example recruitment timeline based on the changes that have been made to the CoS system? Also, what are the costs of CoS going to be? Will there be a cap (ie, can employers issue as many as they want)? How will new recruits be able to prove the English-language requirements (and does this elongate recruitment timelines)?
In comparison with the current Tier 2 (General) recruitment timeline, the timeline will be reduced by approximately six weeks where resident labour market testing would have applied for Tier 2 (General). Sponsors will need to request a 'defined' CoS (dCoS) to be allocated for entry clearance applicants; however, the Home Office indicated that the processing time for this in most cases should be around one working day.

CoS will still be £199 initially.

Sponsors will need to request CoS allocations from the Home Office for in-country applications and justify the need for this, as is currently the case. A dCoS will need to be requested on a case-by-case basis.

For information on the English-language requirements, please see "How can the English-language requirement for the skilled worker category be evidenced?"

Do people who are already sponsored on a Tier 2 visa need to switch or can they remain on their current visa and switch when it expires?
People who currently hold permission under Tier 2 will continue to have valid permission in this category. They will be able to extend their permission under the skilled worker category before their visa expires.

The going rates for further permission and settlement under the skilled worker route are not the same as they are for Tier 2 (General) at present. For some occupations, the rates have increased. Therefore, employers should assess the eligibility of Tier 2 (General) migrants for extension and settlement in good time to verify that they will qualify.

Do employees working in the European Union who are visiting the UK subsidiary (eg, for two weeks) and will contribute to the economic value of the UK subsidiary require a visa or any type of work permit as they will be doing more than just attending meetings?
If the person is an EEA national who will be entering the United Kingdom before 11:00pm on 31 December 2020, free movement arrangements will still apply. If the person enters after this time and they are not eligible to apply under the EUSS before 30 June 2021, if their activities will go beyond what is allowed for business visitors, they would need to obtain a UK visa with work permission that authorises them to do the proposed work activities.

For employers with employees currently on Tier 5 visas who will become EU citizens in the next month, will such employees need to re-enter the United Kingdom as an EU citizen by 31 December 2020?
The rules for the EUSS do not require EEA nationals to have entered the United Kingdom in that capacity, all that is required is that they are an EEA national by 11:00pm on 31 December 2020 and are residing in the United Kingdom by this time. Thus, assuming that an employee is granted their citizenship by 11:00pm on 31 December 2020, they should aim to obtain proof of their citizenship as soon as possible and ensure that they apply for pre-status under the EUSS by 30 June 2021.

Must employers check that employees from the European Union who are already employed by them have applied for and been granted settled status? Is this ever or just before June 2021?
The Home Office has confirmed that the present right-to-work arrangements will remain in place until 30 June 2021. Employers will not be required to do retrospective right-to-work checks on employees hired on or before 30 June 2021.

For employers, aside from the civil penalty regime for illegal working, there is a separate criminal offence for knowing or having reasonable cause to believe that they are employing a person who has no right to work in the United Kingdom. The Home Office is expected to provide clarification in the first half of 2021 on what the consequences for employers will be if it comes to light that an EEA national they employ has no right to work in the United Kingdom, either because they entered after 31 January 2021 without work permission or failed to apply on time for the EUSS.

What are the transitional arrangements where the process has started under the old system but the worker will be starting work in the new system?
Individuals who make a Tier 2 (General) application before 9:00am on 1 December 2020 will have their application processed under the current arrangements and be issued with a visa as a Tier 2 (General) migrant. For the purposes of extension and settlement applications, Tier 2 (General) migrants will be considered under the new rules to fall within the definition of 'skilled worker'.

Applications submitted after this will be processed under the new skilled worker rules.

The Home Office has confirmed the following details:

• Tier 2 (General) sponsors will automatically become skilled worker sponsors from 1 December 2020 and their unrestricted CoS allocation will also be transferred and available for sponsoring in-country skilled worker migrants.
• Sponsors will be able to assign CoS from their allocation for in-country skilled worker applications from 1 December 2020.
• Sponsors will be asked to provide additional pay-as-you-earn information relating to Tier 2 (General) unrestricted CoS that have been assigned but not yet used in support of a visa application.
• For entry clearance applications made under the skilled worker route, a sponsor will have to submit a request to the Home Office on a case-by-case basis for a dCoS to be allocated, which will include the specific job and salary details of the role that the migrant will fill.
• The dCoS process is anticipated to take around one working day in most cases, and is intended to allow the Home Office to do a sense check on what roles sponsors are intending to fill with new migrants coming to the United Kingdom from abroad.
• Sponsors who have a live restricted CoS for Tier 2 (General) will have this converted to a dCoS automatically.
• Any outstanding requests for restricted CoS on 30 November 2020 will be converted to dCoS.

For further information on this topic please contact Andrew Osborne, Joanna Hunt, Naomi Hanrahan-Soar or Stephen O'Flaherty at Lewis Silkin by telephone (+44 20 7074 8000​) or email (andrew.osborne@lewissilkin.com, joanna.hunt@lewissilkin.com, naomi.hanrahan-soar@lewissilkin.com or stephen.o'flaherty@lewissilkin.com). The Lewis Silkin website can be accessed at www.lewissilkin.com.