The UK's New Points-Based System: A Simplified Approach?
Earlier this year, the UK Government announced its intentions to launch a new, simplified Points Based Immigration System from 1 January 2021. This ties in with the end of Free Movement between the UK and the rest of the EU, which is due to occur at 11pm on 31 December 2020. All EU citizens entering the UK after this date (and whose status is not protected by the Withdrawal Agreement) must enter under the new immigration regime, which will apply to EU and non-EU citizens alike.
The UK Government has now published long-awaited further details on what this new immigration regime will look like, and we outline some key takeaways below.
Overarching Principles
EU and non-EU citizens will receive written confirmation of their immigration status, and EU citizens will additionally be able to securely access their immigration status online.
Importantly, the new regime does not apply within the Common Travel Area i.e. the UK, Ireland, the Isle of Man and the Channel Islands.
In order to obtain a visa under the new immigration regime, EU citizens will not be required to attend a Visa Application Centre (VAC) to enrol their biometric details – instead, they can provide facial images using a smartphone, and no fingers scans will be required. By contrast, non-EU citizens will continue to attend VACs to submit their biometric details.
EU and non-EU citizens will be subject to the same visa fees – this presents a major change for EU migrants who currently do not pay any fees under Free Movement provisions. This also presents a huge cost increase for employers accessing the EU workforce, particularly as the Immigration Skills Charge will be levied for EU workers entering the UK from 1 January 2021 – this charge is £1,000 per worker, per year for large companies or £364 per work, per year for small companies and charities.
Applications under the new regime should be possible before the end of 2020, to ensure a smooth transition come 1 January 2021.
Skilled Worker Category
This category will replace the existing Tier 2 (General) category and will continue to provide a route to settlement.
The headline changes seen as major improvements on the Tier 2 (General) category include: (1) the requirement to undertake the advertising process known as the Resident Labour Market Test has been removed; (2) the monthly cap on skilled workers has been lifted; (3) the overall salary threshold has been lowered to £25,600 and can be further decreased to £20,480 using ‘tradeable points’ such as a shortage occupation or PhD level role; and (4) the skill level required for a position to become eligible for sponsorship has been lowered from degree level to A-level or equivalent. These changes should achieve a much quicker recruitment process than under the current system and should also increase the number of workers who are eligible for sponsorship.
Somewhat disappointingly, national pay scales have not been introduced meaning workers hired in the regions will need to meet the same minimum salary threshold as those hired in London. The only exception relates to 24 health and education public service occupations listed by the UK Government, however the overall salary floor of £20,480 will still apply to these roles.
Skilled Workers’ PAYE tax records will be regularly checked to confirm they are being paid the correct salary.
Companies wishing to hire skilled workers (EU and non-EU) will need to be ‘licensed’ as a sponsor for this purpose. Existing Tier 2 sponsor licence holders will have their licence transferred to the new system (with the expiry date unchanged).
Intra-Company Transfers & Intra-Company Graduate Trainees
This route will replace the existing Tier 2 (Intra Company Transfer) category and is intended to enable multi-national companies to move their workers to their UK office for a temporary period. Workers must complete 12 months at the overseas office in the case of Intra-Company Transfers or three months in the case of Intra-Company Graduate Trainees.
As with the current provisions, this category will not provide a route to settlement in the UK and will be capped at five or nine years, depending on the salary level of the role. However, it will now be possible to switch in-country to a different category which does lead to settlement (for example, to the Skilled Worker category) – this is a very welcome change.
The cooling off period has also been modified such that Intra-Company Transfer migrants will only be allowed to hold this visa for a maximum of five years in any six year period, unless they qualify to be granted up to nine years due to their high salary. This presents much more flexibility than the current cooling off provisions.
The higher skill level requirement (degree level roles) will remain in place, as will the minimum salary threshold of £41,500 – so the Skilled Workers category above will be the only option for lower-skilled or lower-salaried positions. Given the removal of the Resident Labour Market Test and monthly cap for the Skilled Workers category, the main advantage of using the Intra Company Transfer category will be to avoid the English language requirement which only applies to Skilled Workers. With this in mind, it is very likely that the number of Intra Company Transfer migrants will decline under the new system.
Highly Skilled Workers
The UK Government confirmed its commitment to introducing a category of highly skilled workers who will not require a sponsored job offer in order to enter the UK; however, this route will not open on 1 January 2021 and will be developed over the coming year.
Health and Care Visa
This is a sub-category of the Skilled Worker route which will launch on 4 August 2020. It is intended for doctors, nurses and other eligible health professionals with a job offer form the National Health Service (NHS), social care sector or employers/organisations which provide services to the NHS.
Eligible individuals and their dependant family members will be afforded fast-track entry, reduced application fees and dedicated support during the application process. They will also be exempt from paying the Immigration Health Surcharge. It is worth noting that the list of eligible professions does not include a number of key care worker positions, which is disappointing.
Global Talent Visa
This category was launched on 20 February 2020 and replaced the old Tier 1 (Exceptional Talent) route. The route will open to EU applicants (in addition to the existing non-EU applicants) from 1 January 2021, and is designed to attract recognised global leaders or future leaders in science, humanities, engineering, the arts and digital technology.
Start-Up and Innovator
This route replaced the old Tier 1 (Entrepreneur) category in March 2019. Start-Up is for those setting up an innovative business for the first time, while Innovator is for those with industry experience and at least £50,000 funding. Applications from EU citizens will be welcomed from 1 January 2021, and the UK Government has stated its commitment to expanding coverage to more sectors and businesses – this would be welcomed gratefully, as the current numbers of applicants are very low, especially compared to numbers under the old Tier 1 (Entrepreneur) route.
Student Route & Graduate Route
The main requirements to obtain a Student Visa appear largely unchanged although there will be some changes surrounding more technical/procedural points – for example, it will be possible to apply for a student visa up to six months before the course begins (compared to the current three month time limit).
Of much greater importance is the introduction of a Graduate Route from Summer 2021. This will allow those who have completed a degree at a UK Higher Education Provider with a track record of compliance to apply for further leave, permitting them stay in the UK for two years (or three years for PhD graduates). During this time, they will not require a sponsor and will be permitted to work at any skill level and to switch into other work routes if they find a suitable job. This is a ‘one time only’ deal – applicants must not have been granted leave under the Graduate Route previously in order to qualify.
Other Routes
The UK Government also published information on a number of other ‘new’ visa categories, which largely replace existing immigration routes. Of particular note at this stage:
Visitors – EU citizens should be considered ‘non-visa’ nationals from 1 January 2021, meaning they will not be required to apply for a visa before visiting the UK.
Creative Route – this route replaces the existing Tier 5 creative provisions and provides creative applicants with a short-term visa of up to 12 months (with some provisions for entering visa-free for three months or less). It is not clear whether creative entourages will be provided for, as they are under the current system.
British Nationals (Overseas) in Hong Kong – the government expressed its commitment to introducing a new immigration route for British Nationals (Overseas) and their immediate family members who are normally resident in Hong Kong, which would allow them to live and work in the UK and provide a pathway to citizenship.
Looking to the Future
The UK Government has outlined a long-term vision whereby a universal ‘permission to travel’ requirement will be introduced by 2025. This appears similar to the ESTA Visa Waiver in the US, in that it will require everyone traveling to the UK to seek permission in advance of their trip – this will include an Electronic Travel Authorisation (ETA) for visitors and transit passengers who do not currently need a visa for short stays. In addition, the UK Government foresees a fully digital visa system whereby paper visa documents are ultimately replaced by digital confirmation of one’s status.
Analysis
From first glance, the proposals for the new immigration regime appear to be an ambitious attempt to simplify the current rules while also providing a more flexible framework. In short: more people should be able to obtain visas under the new immigration system, although it is obviously not as lenient as Free Movement within the EU.
With this in mind, the answer to the question of whether the new system will indeed be ‘simplified’ is likely to depend on who you ask: EU citizens will have a more difficult (and expensive) immigration experience, as will their employer, while non-EU citizens may find the new system to be a welcome relief!
One thing is for certain, however: companies that do not currently hold a sponsor licence should consider applying for one immediately in order to continue accessing the EU workforce from 1 January 2021.
If you have any questions on the above, please get in touch – we would love to hear from you!