Statement of Changes to the Immigration Rules Published

Statement of Changes to the Immigration Rules Published

Key Contact: Claire Knowles

Author: Rebecca Mahon

On 22 October, the Home office published its Statement of Changes to the Immigration Rules. The changes are broadly those we expected following the Government’s Policy Statement on the new points-based immigration system post-Brexit, which was published in July. You can read our article on the policy statement here.

The majority of the changes to immigration rules will come into effect from 1 December 2020, albeit free movement for EEA citizens will continue until 31 December 2020. Employers and employees may therefore need to consider which route of entry is most appropriate for EEA citizens during the month of December and further guidance on this point is expected.

The main statement of changes runs to 541 pages, however we have summarised the key points for employers below:

Skilled Worker Route

The skilled worker route will replace the current Tier 2 General route. The resident labour market test which required employers wishing to hire someone from outside the EEA to demonstrate that they could not fill the vacancy using someone already resident in the EEA has been abolished. The cap on the maximum number of entrants via this route is also being lifted, but the statement of changes refers to this being suspended, rather than abolished. The skill threshold is being lowered from graduate level to A-level equivalent and the general salary threshold will be reduced from £30,000 to £25,600. Those in shortage occupations can be paid less.

Those who wish to apply for settlement having entered the UK via this route no longer have to hit the salary threshold of £35,800. Instead, their sponsors have to demonstrate that they are paying at least £25,600 per year.

The statement confirms that there will no longer be a “cooling-off” period for individuals who leave the UK following an assignment and who want to come back. Currently, anyone working in the UK under a Tier 2 General visa who leaves the UK (and whose visa expires) cannot return for a 12-month “cooling-off” period. This will be removed, as will the overall six-year maximum length of stay via this route.

Intra-Company Transfer Route

Because of the new skilled worker route, employers are unlikely to need to rely on this route unless the applicant is expected to struggle with the English language, finance and knowledge of life in the UK requirements. However, it is worth noting that the statement of changes confirms that:

  • the “cooling-off” period will also be removed from this route
  • the maximum amount of time someone can stay in the UK via this route is going to be increased (to five-year sin any six-year rolling period or up to nine years in any 10 year period for high earners)
  • the “higher earner” salary threshold will be reduced to £73,900.

Shortage Occupation List

Many businesses were hoping for the shortage occupation list to be updated. However, the statement of changes confirms that this list will not be updated until the Government has had the opportunity to see how the UK labour market develops post-Covid 19 and the introduction of the new points-based system.

Finally, it is worth noting that any overstaying between 24 January and 31 August (due to Covid 19) will be disregarded when it comes to considering suitability of applications.

Comment:

The new rules should make it easier than ever to sponsor workers. The main problems that employers will face are 1) getting their heads around the new rules, quickly, and 2) the potentially increased visa application costs for businesses who routinely hire individuals from the EEA from 1 January 2021. Employers should also be wary of applying blanket recruitment policies which may encourage avoidance of the new skilled worker route. Avoiding or rejecting applications from individuals on the basis that they will need to be sponsored come 1 January 2021 may amount to indirect discrimination on the grounds of race therefore any objective justifications will need to be carefully articulated and documented.

For further support and guidance, please contact our employment and immigration team.

Claire Knowles – Partner

Mark Alaszewski – Associate

Rebecca Mahon – Solicitor

Adam McGlynn – Solicitor

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