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Education briefing - The new immigration system: the Government reveals important changes

  • United Kingdom
  • Other
  • Education - Briefings

29-10-2020

The Statement of Changes to the Immigration Rules released on 22 October 2020 provides important new information about the Points-Based Immigration System to take effect following the Brexit transition period. This is a very significant change to immigration requirements, with some fundamental changes to the rules themselves as well as extension of the immigration regime to new EEA workers from 2021, and should be fully understood by all who manage immigration on behalf of their institutions.

In this briefing we focus on changes to the skilled worker route but also mention changes relevant for students which are in addition to those previously announced by the Government last month, which came into effect on 5 October 2020 when the new Student and Child Student routes replaced the Tier 4 route.

What are the main changes for recruiting staff?

The new ‘Skilled Worker’ route replaces the current “Tier 2 General” application and makes important changes to it. Some of these have been well advertised over the past 18 months; the minimum skill level required for sponsorship will be roles requiring the equivalent of RQF 3 (A level) rather than RQF 6 (Graduate). The resident labour market test, beloved of immigration lawyers but less so by HR practitioners, ends at the close of business on 30 November 2020. The cap on the maximum number of certificates of sponsorship which may be issued per month ends too, although the cap is suspended rather than abolished.

Less well advertised is the fact that the “cooling-off period”, which regularly prevents employees from returning to the UK for new roles following an assignment is to end for Skilled Workers, as will the complicated rules about the maximum time sponsored workers may spend in the UK.

Tier 2 currently recognises “new entrants” to a profession, by allowing such employees to receive a lower salary and still secure the necessary points for a sponsored visa. In the Skilled Worker route institutions will be interested to note that this category is expanded to include those sponsored in postdoctoral research positions and those working towards professional qualifications, registration or chartered status. In addition the criteria for new entrants switching from the Student route are being widened to include those were in the route at any time in the two years before they apply.

There are some changes to the methods for satisfying the English language requirement -  these include that applicants who have gained GCSE/A Level or Scottish Highers in English while at school in the UK can rely on this to prove their English language ability; Malta is added to the list of majority speaking English language countries;  Ireland is added to the list of countries from whom a degree is deemed to count; and  it is made clear that an individual will meet the requirement if they have already done so, at the level required for their current application, in a previous successful application for entry clearance or permission to stay.

Also relevant for HEIs will be the fact that there will be a greater ability for academic visitors to extend their permission to stay in the UK up to a total of 12 months.

On maintenance the requirement for Skilled Workers will be increased from £945 to £1,270, whereas for dependants it will be reduced from £630 to £285 for a dependant partner, £315 for the first child applying and £200 for each subsequent child.

Other changes introduced include legislative protection for anyone who remained without leave to remain between 24 January and 31 August 2020 due to Covid-19. The general grounds on which applications may be refused altered are stricter and include mandatory refusal based on prior custodial sentence.

What then is new in these Immigration Rules?

Many of the changes were widely anticipated for some time and the change to salary bands and qualification should not be a surprise to anyone. We would suggest the following actions regarding the Statement of Changes which should be considered now by those who manage immigration:

  • Unlike other major immigration changes in the past these changes are imminent, due to take effect within five weeks of writing. Understanding of the transitional arrangements is important. Consider immigration applications which were scheduled for November and December – do they fit better within the current rules, new ones or equally under both?
  • Qualification for a Certificate of Sponsorship becomes easier within this new system but access to the system is not. Visas are now available for job roles which have not qualified for sponsorship for many years, if ever. Technical changes in respect of the “cooling off” periods, maximum time spent in the UK and switching all make it easier to sponsor workers. The cost of application fees to do so will be a more serious practical barrier to sponsorship and should be factored in to your international assignment programme;
  • The Statement of Changes does indicate how to sponsor employees from December, but is not a holistic consideration of the immigration system after the end of the Brexit transition period. Law relating to this will develop over several years rather than be delivered by statute, so those managing immigration processes need to continue to follow changes carefully.
  • Consider carefully the strategy on the use of the Skilled Worker route. If the desire is to limit use in terms of volume or job type, employers should recognise that this will probably raise indirect race discrimination risks and objective justification arguments should be properly articulated.

In respect of new EEA workers, it will not be possible to apply for entry clearance or leave to remain until 2021. Given the concerns expressed about access to the system above, we suggest considering whether there are alternatives to sponsorship for EEA citizens moving to the UK in early 2021 to allow access to the EU Settlement Scheme.

The current requirements have been in place for almost exactly 12 years and, for most people managing immigration processes, will be all they know. Whilst the changes above should not make it more difficult for anyone to qualify for sponsorship, the significant change is that these requirements will apply to a far wider group of employees/new hires than the current rules do. Remaining aware of changes, considering resource needs and training requirements will all be important.

What are the further changes for students?

Although most of the changes relating to study came into effect with the introduction of the new Student and Child Student routes on 5 October which replaced (and in some areas altered) the previous rules which had applied under Tier 4, there are some further changes of relevance in the Statement of Changes released on 22 October 2020 which will apply from 1 December 2020. These, along with the changes from 5 October 2020, will also apply to new EEA students from 1 January 2021.

The Visitor rules will now permit study of up to six months under the standard visit route (rather than as currently up to 30 days). This means that students who wish to come to the UK to study for 6 months or less may now do so under the Visitor route rather than, as currently, having to use the Short-term Study route. Instead a new Short-term Study route is being introduced for students who wish to come to the UK to study English language courses for between 6 and 11 months

Finally, the maintenance level on living costs, will increase to £1,334 per month from £1,265 per month (for a maximum of nine months) for students in London and to £1,023 per month from £1,015 per month for students outside London.