Life after Brexit: An update on the UK’s new points-based immigration system 

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With COVID-19 continuing to dominate the headlines, Brexit has taken a back seat. However, with the transition period coming to an end on 31 December 2020, employers should be aware of what this means from an immigration perspective. In this Law-Now, we consider some of the upcoming changes to the UK’s immigration system and the key considerations for employers to ensure that they are ready come 1 January 2021.

Post-Brexit Immigration Rules

The Home Office has made a number of announcements throughout 2020 in relation to what the UK’s new points-based immigration system will look like, once “free movement” between the UK and the European Union comes to an end on 1 January 2021. The new system will apply equally to all foreign nationals, including EU citizens.

Earlier this year, the UKVI published a useful short introductory guide for employers that provides a brief overview of the new system. Just recently, the Immigration Rules were laid before Parliament, confirming that the new system will apply to the majority of new applications from 1 December 2020. We anticipate the that the Home Office will publish detailed guidance in relation to the new system shortly.

Skilled Workers

One key change which employers should be aware of is that, under the new system, the current Tier 2 (General) route will be replaced with a ‘Skilled Worker’ route. This will allow foreign nationals to work in the UK on the basis that they have been offered a skilled job, provided they meet specific requirements. There are a number of key differences between the Tier 2 (General) route and the Skilled Worker route that sponsors should be aware of:

  • The minimum skills threshold will be lowered from RQF level 6 to RQF 3 (A Level and Scottish Highers). This means that applicants will not be required to demonstrate that they have a formal qualification which will allow an increased number of roles to qualify for sponsorship.
  • The minimum salary threshold will be reduced from £30,000 to £26,500. In order to make an application, the applicant must be paid at least £26,500 or the “going rate” for the role – whichever is higher.
  • Many current Tier 2 sponsors will no doubt be glad to hear that the resident labour market test is to be abolished, meaning that there will be no need for employers to advertise the position for a 28-day period. It is hoped that this will reduce the process of applying for a Certificate of Sponsorship by 4 weeks. However, employers must demonstrate that the role is a “genuine vacancy” which meets the skill and salary thresholds.
  • The 12 month “cooling off period” is to be removed. Under the existing system, any migrants who have previously been sponsored under the Tier 2 process and have left the UK must wait 12 months before they can submit a new Tier 2 application. However, this “cooling off” requirement will be removed under the Skilled Worker route – a change which is likely to be welcomed by employers as it means that migrants will not need to wait a year before they can return to work in the UK.
  • Crucially, the annual cap across the UK on restricted certificates of sponsorship which currently sits at 20,700 will be suspended. That is a significant liberalisation of immigration policy and means that there will effectively be unlimited Tier 2 migration into the UK as of next year and any role is potentially open to overseas competition.

Whilst there are a number of key changes to be aware of, it is worth noting that under the new Skilled Worker route, applicants will still be required to demonstrate that they speak English and the application fees continue to apply. Information on the updated visa fees can be found here.

Furthermore, controversially the government has said that there will not be an immigration route specifically for those who do not meet the skills or salary threshold for the Skilled Worker route. This means that there will not be a route for low skilled workers, with the exception of the temporary routes under Tier 5.

Next Steps

Employers who require to sponsor foreign nationals (whether from the European labour market or otherwise) should apply for a sponsor licence, if they do not already have one. In order to assist with the licence application process, the UKVI have published a useful one-page guide which provides a brief overview of what is involved.