The Home Office unveils new points-based immigration system from January 2021

On 22 October 2020, the Government published the Statement of Changes to the Immigration Rules which provides more detail regarding the UK’s new Points-Based Immigration System for EU and non-EU nationals.

For most of the routes under the new system, applications can be made from 9am on 1 December 2020. The new Hong Kong British national (Overseas) route will be open from 31 January 2021.

While the focus of this article will be on the Skilled Worker and Intra-Company route, we’ve briefly outlined some other key changes:

• Incorporated within the rules will be a provision confirming Irish nationals will have the right to enter, reside, live and work in the UK without obtaining immigration permission.
• An application for entry-clearance, permission to enter or permission to stay will be automatically cancelled if an applicant has been convicted of a criminal offence in the UK or overseas and received a custodial sentence of 12 months or more.
• Each immigration category has been drafted within its own appendix – designed to give greater clarity for applicants as per the Law Commission’s recommendation. The rules for Global Talent, Start-up, Innovator, UK Ancestry, Representative of an Overseas business remain largely unchanged.
• Entry clearance applications for a Turkish worker or businessperson will close from 1 January 2021.  However, individuals already on these categories will continue to extend their visas under Appendix ECAA Extension of Stay.
• Introduction of Appendix Continuous Residence – the absences requirement of no more than 180 days outside the UK in any 12-month period during is maintained but a new exception for ‘travel disruption due to pandemic’ is included.
• From 1 January 2021, EU nationals will not receive a physical document confirming their immigration status – instead they will receive a digital status. Non-EU nationals will continue to receive a Biometric Residence Permit.
• Right to Work guidance will be updated in Spring 2021. Between 1 January 2021 and 30 June 2021, transitional arrangements apply and employers can continue to confirm an EU national’s right to work using only their passport or national ID card.

Skilled Worker – replaces Tier 2 General

The Skilled Worker category is for employers who wish to sponsor an EU or non-EU national to work in a specific job. We previously discussed the requirements of this category when the Home Office published their previous guidance in July – found here.

The main criteria for the Skilled Worker route are as follows:

• The job role must be skilled at RQF Level 3 (equivalent to A-levels) or above.  The list of qualifying SOC codes have been moved to Appendix Skilled Occupation.
• The salary for experienced workers must be at least £25,600, or, the going rate for their occupation. Only basic salary can be used to meet the minimum salary requirement. See here for the full table on meeting the relevant points for salary.
• The applicant must be issued with a Certificate of Sponsorship (CoS) from an A rated sponsor. This process appears to remain the same albeit one additional change is the requirement for the Sponsor to provide PAYE details if there will be a tax and/or national insurance liability.
• The applicant must provide evidence that he meets the English language requirement – the level is at B1 of the Common European Framework of Reference. Malta will be added to the list of majority English speaking countries. Degree or above qualifications obtained in Ireland can b relied upon to prove English language. Finally, it will be possible to meet the requirement by having an A-level, GCSE or Scottish Highers qualification awarded after studying in the UK.
• The maintenance level has increased to £1270 (previously £945) but the length of time these funds must have been held have been reduced to 28 days (previously was 90 days). This requirement can be met by one of two ways – either A rated sponsor certifies maintenance on CoS, or, the migrant can provide bank statements confirming they have held the funds continuously for 28 days.
• The list of occupations subject to the requirement to produce a criminal record certificate has been expanded to include occupations at RQF Levels 3 to 5.

We’ve also highlighted some other notable changes from the previous Tier 2 General category.

• Individuals in the UK on categories such as Tier 5 or a spouse visa can switch in the UK to a Skilled Worker visa – was previously prohibited under Tier 2 General.
• Resident Labour Market test has been abolished.
• The cooling-off period is abolished. Individuals in the UK on a Tier 2 Intra-Company Transfer visa can switch to a Skilled Worker visa.
• The six year cap has been abolished – Tier 2 General migrants could previously only remain in the UK for a maximum period of six years.
• The annual quota of restricted Certificate of Sponsorship has been removed – however there appears to be an allocation request process where a Sponsor intends to assign Certificate of Sponsorship to a migrant who is based outside of the UK.
• The salary threshold of £35,800 for Indefinite Leave to Remain is being removed. Instead, an applicant needs to be paid either £25,600, or the going rate for their occupation, whichever is the highest.

We anticipate the Home Office will shortly be publishing policy guidance on the Skilled Worker category (and other categories) and we will provide details as soon as the guidance is released. The Home Office’s policy guidance is intended to be read in conjunction with the Immigration Rules.

Intra-Company routes – replaces Tier 2 Intra-Company transfers

The Intra-Company category is intended for employees of an overseas office to come to the UK on a short-term basis and work for the UK entity. This category has been reorganised within Appendix Intra-Company routes – there have not been major changes to the previous Tier 2 Intra-Company transfer category, however, we’ve summarised what has and has not changed:

• To a sponsor a migrant in this category, the sponsored role must be at RQF Level 6 (degree level or above).
• An applicant must be earning at least £41,500 or the minimum for their occupation to score 20 points.
• Unlike the Skilled Worker route, allowances which are guaranteed can be included within the migrant’s salary package.
• An applicant must have been working for the overseas entity for at least 12 months prior to date of application, unless they will be paid a salary of £73,900. NB the overseas entity must be linked by common ownership and control and have been approved by UKVI.
• The high earner threshold has been reduced to £73,900 (previously was £120,000) – maximum time an individual can stay in this category as a high earner is nine years.
• The maximum period of time an individual can remain in this category is five years.
• Cooling-off period is being adjusted – an applicant can remain for five years in six year period (nine years in ten year period for high earners). As mentioned above, switching from ICT visa to Skilled Worker will be permitted – previously not allowed under Tier 2 Intra-Company Transfer route.