Immigration Update: The UK’s post-Brexit Immigration System

On 13 July 2020, the UK government released a new policy paper telling us what the UK’s points-based system will look like post-Brexit. The new system will take effect on 1 January 2021, when freedom of movement between the UK and the EU comes to an end. The new rules and requirements will apply to all EU and EEA nationals, including those nationals who already require a visa to come to the UK.

EU nationals

As set out in our previous article, EU, EEA and Swiss citizens (and their family members) who are living in the UK before 31 December 2020 can apply under the EU Settlement Scheme to ensure they can remain in the UK post-Brexit.

EU, EEA and Swiss nationals wishing to come to the UK after this date will be granted entry as a visitor for 6 months without needing to obtain a visa. However, they are not allowed to work or access public funds whilst in the UK. Those wishing to work or stay in the UK on a more long-term basis will need to apply for a visa under the new system, details of which are set out below.

The Skilled Worker visa

The current Tier 2 (General) visa will be replaced by the Skilled Worker visa. To be eligible to apply for a visa as a Skilled Worker, applicants will need to show that:

They have a job offer from an employer that holds a sponsor licence;
The job offer is for a job at the required skill level (RQF 3 or above);
They can speak English at a “good level” (as defined by the Home Office); and
They will earn a salary of at least £25,600 or the appropriate rate for that specific job as set by the Government.

The most significant differences between the Tier 2 visa and its successor, the Skilled Worker visa are as follows:

Abolition of the Resident Labour Market Test – currently employers are required to advertise roles to the UK labour market for 28 days prior to sponsoring a migrant worker. This requirement will be removed, hopefully reducing the time it will take to obtain a visa in this category.
Reduction of the minimum skills threshold from RQF Level 6 to Level 3 – The minimum skill level has reduced from graduate level to A-level.
Removal of the annual quota system – Under the current immigration system, there is a monthly cap on the number of restricted Tier 2
General visas issued by the Home Office. The removal of this cap means there will be no limit on the number of skilled workers who are eligible to enter the UK under the new points-based system, provided they meet the other requirements.
Ability to “trade” points – If an applicant does meet the salary threshold of £25,600, but will be paid more than £20,480, they will still be able to apply by trading points on specific characteristics against their salary – for example, a PhD or a job in a shortage occupation will attract more points and may make up for the shortfall in salary.

The Tier 2 Intra-Company Transfer (ICT) visa

Under the new points-based immigration system, businesses will still be able to transfer sponsored employees to the UK if the role is skilled to RQF 6 (degree level) and has a minimum salary of £41,500 (or higher depending on the SOC code). Additionally, the cooling off provisions will be relaxed but the route will still not lead to settlement (indefinite leave to remain).

What other visa routes are available?

The government has confirmed it will not be introducing a general low-skilled or temporary work route into the UK.

Highly skilled workers will be able to rely on the Global Talent route (which replaced the Tier 1 Exceptional Talent route). This route is open to highly-skilled scientists and researchers who can obtain an endorsement from a Home-Office approved organisation. Applicants relying on this route will be able to enter the UK without a job offer.

In addition, a new Graduate route will be launched for those who will complete a degree in the UK from the summer of 2021. The Graduate route will grant undergraduate and Masters students permission to remain in the UK for a further two years after graduation, with a three year option for PhD students, in order to work or look for work at any skill level in the UK.

Switching between different immigration categories

From 1 January 2021, there will be more flexibility for switching immigration categories from within the UK provided that migrants meet the criteria of the route they want to switch to. This change will enable sponsored workers to continue working in the UK whilst awaiting the outcome of their application, ensuring that there is minimal disruption to both the visa holder and sponsor alike and saving costs by being able to make the application in-country.

Conclusion and practical implications

Employers seeking to sponsor migrant workers under the new points-based immigration system need to consider the following:

Employers will need to sponsor EU citizens who enter the UK after 31 December 2020 to be able to employ them in the UK. Employers without a sponsor licence should apply for a licence as soon as possible, as the Home Office is likely to receive a surge in applications which could delay processing times.
Employers with existing Tier 2 General sponsor licences will have their licences automatically converted to Skilled Worker licences without needing to take any action.
Recruitment costs could increase significantly from 1 January 2021 as the Immigration Skills Charge (up to £1,000 per year of the visa) and Immigration Health Surcharge (£624 per year from 1 October 2020 for each applicant and their dependants) will apply to EU citizens as well as non-EU citizens entering the UK for sponsored employment.

Many of the changes set to be introduced under the new points-based system will be beneficial to employers and ensure a more efficient process. We look forward to receiving further clarity on the new system from the Home Office later this year.

In the meantime, we are monitoring the position closely and will keep these bulletins updated.