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Government provides (not much) further detail on the UK’s new points-based immigration system

Government provides (not much) further detail on the UK’s new points-based immigration system

Immigration lawyers up and down the land leapt out of bed this Monday morning, eager to glut out on the promised detail of the UK’s new points-based immigration system.

How disappointed we all are.

The snappily titled UK’s Points-Based Immigration System — Further Details may look glossy, but the 130-page document doesn’t contain a lot more detail than the proposals released earlier in the year. Essentially, the current immigration system is being slightly amended. Of course, the biggest change is that from 1 January 2021, EU citizens will need immigration permission to live, work and study in the UK. If businesses want to employ EU citizens, they will need to buy a sponsor licence and pay the Immigration Skills Charge of £1,000 per worker per year. But we did already know that.

Here’s a quick review of the “further detail”, such as it is.

Written confirmation of immigration status

The document says that:

EU and non-EU citizens wishing to come to and live in the UK from 1 January 2021 will need to demonstrate their right to be in the UK and the entitlements they have. All applicants will receive written confirmation of their immigration status. EU citizens will additionally be provided with secure access to their immigration status information via an online service which they will be able to use to confirm their rights and to access services when necessary, instead of a physical status document.

EU citizens and non-EU citizens who are non-visa nationals can already live in the UK on a temporary basis as visitors without needing written confirmation. I think what they mean is that anyone who wants to work and study in the UK, and live here on a more permanent basis, will need written confirmation. Perhaps we’ll need a definition of “live in the UK” in the to-be-simplified Immigration Rules.

The government appears to have decided that having a system reliant only on digital e-visas is not a good move — perhaps they read Jonathan’s piece. It is also likely that they’re keen to avoid another scenario where there are lots of people lawfully in the UK who cannot prove their status. 

Easier right to work and rent checks

EU and non-EU citizens coming under the new system will be able to demonstrate their right to work via an online system.

This is already in use on a limited basis and can only be a good thing, providing the system is fair and there is room for employees and employers to address errors without risking job loss.

Having permitted employers to conduct right to work checks remotely, via video call for example, during the coronavirus pandemic, I’m pleased that this is being kept long term.

Employers need to keep up to date with the rules that are in place when the employee starts. These will be updated as the new system is rolled out so it’ll be important to keep an eye on the latest process which can be found here.

The document also confirms that a similar online right to rent service is planned for later this year. Again, potentially useful as long as it is operated fairly and there’s room to address errors.

I can hear the education sector screaming “what about simplifying right to study checks”? Sorry guys — there’s nothing in this document about that.

EU citizens can avoid biometric enrolment

Initially most EU citizens won’t need to attend a Visa Application Centre to provide their biometrics. Instead, they’ll be able to just provide a facial image. Self-enrolment of biometrics is stated to be part of a longer term plan.

Criminality and deportation

The document makes it clear that the UK will continue to take a tough stance against those breaching criminal and immigration laws.

As I read away, I could very clearly hear the Home Secretary’s voice in my head(!) saying:

We will ensure our enforcement system is fair, protects the public, upholds our immigration policies, and acts as a deterrent to those who might seek to frustrate those policies. Encouraging and supporting compliance will be at the heart of the Points-Based System. Compliance with UK immigration laws and rules is an essential part of an immigration system which operates fairly, robustly and with integrity.

It may just be my stubborn positivity, but we do seem to be sailing a little further away from referring to either a hostile or a compliant environment. Could we be bound for an “encouraging and supportive” environment perhaps? I think it’s probably too soon for that given that much of the document is passive aggressive in tone.

Working in the UK

Employers will still need a sponsor licence if they want to recruit EU and non-EU citizens under most of the work routes. Some applicants will of course qualify under the non-sponsored routes in their own right.

Checks will be made to ensure that sponsors are genuine and solvent (the latter is new). Sponsors will need to show that roles are credible and meet salary and skills requirements (where applicable). Key personnel responsible for maintaining the sponsor’s status will undergo criminality and “other security checks”.

In an astonishing feat of creative achievement, the document confirms that sponsor licences for workers will be renamed “Skilled Worker licence” and “Intra-Company Transfer licence”. 

Skilled Worker route

The skilled worker routes is pretty much as per the initial design:

  • no caps
  • no Resident Labour Market Test
  • a system of points including “tradeable” points (I’m going to need some time alone with my note pad to figure this bit out — and then we’ll do a detailed briefing)
  • lower skill threshold (RQF3 instead of RQF6 at the moment)
  • minimum salary requirement (“PAYE records for all skilled workers will be regularly checked to confirm they are being paid the correct salary”)
  • English language requirement — a lot of new and welcome ways to meet this are being introduced
  • ability to bring qualifying dependants

In welcome news, the ridiculous and environmentally damaging switching rules will be relaxed to enable most migrants to apply to switch from one immigration route to another without having to leave the UK. Greta will be pleased.

In less welcome news, applicants seeking points under the easier PhD skilled worker route will only be able to score points if the PhD — which must be an “academic PhD” (does anyone know what that means – I thought they were all pretty academic?) — is relevant to the job. Onerously, the document says: “We will withhold points if the sponsor’s explanation is clearly not credible”. I pity the poor official making that decision!

Health and Care Visa

I was so excited to see over the weekend that we were to have a “Health and Care Visa” with “fast-track entry, with reduced application fees and dedicated support”. There will be many who do benefit, but the final detail confirms that our beloved key workers who work in care homes and provide home care aren’t included. My initial excitement quickly turned to annoyance.  

I’m not alone. As Nick points out on Twitter, the “Health and Care Visa” seems to have been an incredibly cynical bit of rebranding — table 31 on “Occupations not eligible for the Skilled Worker route”, of which the Health and Care Visa is a subset, includes “care workers and home carers”. So no visas for care workers after all.

Intra-Company Transfers (ICT) and ICT Graduates

The ICT routes are to remain broadly as they currently are.

However, at the moment, a worker transferring under the ICT provisions must have either been working overseas for at least 12 months or have been paid a minimum relatively high salary. The salary part is not referred to which is hopefully just a drafting error.

The good news is that it looks like the “cooling off” period is going to be removed in relation to ICT sponsored workers. This nonsensical rule has meant that skilled sponsored workers have had to wait for 12 months before being able to return to the UK as skilled sponsored workers in many circumstances. Unfortunately, the removal of it is only referred to in the ICT section so either that’s poor drafting, or it’ll remain in place for other sponsored workers.

Global Talent, Start-up and Innovator

The Global Talent route will continue to play a role in the UK’s immigration system. Talent is deemed so important that Downing Street seems eager to take over the process (although I don’t think the current caseworking teams will be anxious).

The government is also stubbornly insisting on clinging on to the Start-up and Innovator routes.

As Colin has pointed out on Twitter, none of the above routes are currently delivering at acceptable levels.

Highly skilled workers

They couldn’t quite bring themselves to call this the Highly Skilled Migrant Programme, but the document confirms that:

Beyond January 2021 and in line with the recommendations from the MAC, we will create a broader unsponsored route within the Points-Based System to run alongside the employer-led system. This will allow a smaller number of the most highly skilled workers to come to the UK without a job offer. This route will not open on 1 January 2021 and we are exploring proposals for this additional route with stakeholders over the coming year. Our starting point is that this route would be capped and would be carefully monitored during the implementation phase. Further details will be shared in due course.

Other work related routes

There is little further detail of note in relation to most of the other work related routes so we can expect them to largely operate as now, although with the inclusion of EU citizens.

Such routes include Ancestry, Minister of Religion, Government Authorised Exchange, Youth Mobility, Charity, Sporting and Creative.

What about investors and sole representatives?

I was feeling confident that these two routes had been left out of today’s document (and its predecessors) only because they would somehow sit outside the points-based system categories — in little princess Immigration Rule towers of their very own. But, as Colin pointed out to me, the document seems to cover pretty much every other route that is currently outside Part 6A Immigration Rules (that’s the section that deals with the current Points-Based system). The Seasonal Worker pilot for agriculture and Overseas Domestic Workers also get name-checked — but nothing at all on investor or sole rep.

We’ve since been in touch with the Home Office press office, who essentially said that it’s safe to assume that these routes are still going to be in place unless there’s a specific announcement otherwise. The spokesperson played down the significance of them not being mentioned in this document, since it didn’t cover the entire immigration system. He didn’t say that they are definitely not being abolished; just that their omission from this document shouldn’t be taken as indicating that.

Students

Today’s document makes it clear that universities, colleges and independent schools seeking to recruit unlimited numbers of international students, including new EU arrivals, for long-term study will continue to need a sponsor licence. 

Unfortunately schools that are not independent schools can’t be sponsors.

Students will be awarded points (70 are needed) for meeting course, qualification, level of study, place of study and CAS requirements. 10 points each are issued for meeting financial and English language requirements (although 4-16 year olds will not need to meet an English language requirement, as is the case now).

Students will be able to come to the UK six months before their course starts, instead of three as of now and there will be more flexibility for in-country switching.

Time-limits on study will be removed for those studying at postgraduate level (as long as the student is progressing academically).

Sponsors will still need to monitor engagement, although new rules on this are to be published (the sector has been promised new rules for many months so hopefully this will appear soon).

The document confirms at paragraph 86 that Higher Education Providers (HEPs) with a track record of success will be able to carry out their own academic assessment in relation to degree level and above students, meaning that students won’t have to submit documents with their visa application. However, it also says at paragraph 88 that such sponsors will be able to “self-assess academic and English language ability” but it is not clear if that applies to degree level and above students only. Hopefully the Home Office will clarify that — it can takes months for large education providers to prepare for the next year’s intake.

The definition of an HEP can be found in the glossary of document 1 of the Tier 4 sponsor guidance and the meaning of “track record” is in document 4.

The Home Office will continue to allow students from low risk countries, which will include EU countries, to benefit from certain relaxations in the visa application process. Certain students will also continue to benefit from work rights.

Safeguarding of under 18s will continue to be key — and this is now one of the main reasons I see for UKVI compliance action against sponsors.

The annual Basic Compliance Assessment is staying put. This means that if more than 10% of applicants sponsored by an education provider have their visa refused, the education provider can lose its licence.

The sponsored student section finishes with the ominous warning that  sponsors “are subject to sanctions for non-compliance”. We can expect sponsors to continue to be required to adhere to a set of sponsor duties.

The Graduate route

The section on the Graduate route provides some further general detail but, frustratingly, little on the exact implementation date. (Further information on that can be found here, but the level of detail the education sector and students need is still lacking.)

Undergraduate and master’s degree students can apply for a two year Graduate Visa. PhD students can apply for three years. They won’t need to be sponsored and will be able to switch into work routes.

To benefit from the route, they must have successfully completed a degree at a UK HEP with a track record of compliance.

They must have “undertaken all study in the UK (those who completed part of their course overseas as part of a study abroad programme, or have studies part of the course outside…. as a result of… Covid-19 will also be permitted to apply)”.

Short-term study

There’s no further detail on short-term study other than to confirm the current rules will apply.

Visitors

The section on visitors also contains no further detail, other than to confirm that “We will continue to engage with stakeholders to further understand how the visitor rules can be improved and simplified”.

This is disappointing. This was a golden opportunity for the government to enhance the UK’s offering to business visitors generally and provide some certainty for many EU workers who only need to work in the UK for very brief periods of time. I hope to see more on this in future.

Hong Kong

Finally, the document mentions the UK government’s “deep concerns” in relation to China’s imposition of national security law on Hong Kong.

We can expect to see a new immigration route for BNOs and their family members very soon — John has written extensively on this.

What next?

I am disappointed at the lack of essential detail.

When a person applies for a worker visa, a student visa or any other type of visa, a whole raft of detailed Immigration Rules come into play covering a range of specific issues. None of that detail — the information lawyers spend hours and hours pouring over — on what will change in January has been published yet.

Then there are guidance documents. At the moment, employers who want to sponsor a worker are bound by a set of rules and regulations contained in the 209 page Tier 2 sponsor guidance. Education providers need to abide by a set of rules set out across four documents. These will also need to be changed in time for January. Today’s announcement just gives us a flavour of what to expect from revised guidance.

So whilst it is helpful to have an update on the government’s thinking — we’ve not had any significant information since February — there is clearly a lot of work that’s still to be done, and not a lot of time left to do it.

Nichola Carter

Nichola heads the immigration team at Carter Thomas (www.carterthomas.co.uk). A lawyer with 20 years' experience, she also sits on The Law Society’s Immigration Committee. Nichola's main work relates to advising businesses, universities and schools on sponsor applications and compliance, and individuals seeking to come under the Global Talent, family and other routes . She regularly provides media comment including for the BBC and FT and is happy to be contacted for comment. Nichola tweets from @carternichola and her email is ncarter@carterthomas.co.uk.

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