Immigration round-up: February 2023

• United Kingdom

• Employment law
• Global mobility and immigration

01-02-2023

Welcome to our regular immigration round-up, providing a helpful summary of what's new and in the pipeline for UK immigration, along with links to a wealth of detailed resources and courses at your disposal.

In this edition, you can find:

• UK immigration updates
• Alerts, webinars & resources
• Upcoming public courses
• Round-up Live

We hope you find these updates useful.

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UK immigration updates

Sponsor Worker Data & Trends

The number of work visas granted in the year ending September 2022 has increased by 82% (pre-pandemic in 2019 ) and has seen an increase of 80% compared to the year ending September 2021. Furthermore, there has been an influx of 128% of worker visas compared to 2019. This is partly due to the introduction of ‘Skilled Worker – Health and Care visas’ in 2020 which allowed those within the health and care sector to be eligible for sponsorship.

There were 27,769 worker visas granted to main applicants who were EEA or Swiss nationals which represents 11% of all work visas granted in the year ending September 2022. Therefore, the proportion of EEA nationals are fairly static as majority of the worker visas were non-EEA nationals. The worker visa category represents 58% of all main applicant work visas granted.  These include visas such as Skilled Worker, Skilled Worker -health and Care, Global business mobility routes (formally ICT route)  etc. This reflects that there is a growing demand for international talent in the UK.

Recent report from the ReWAGE and the Migration Observatory from the University of Oxford indicates that Brexit along with other complex factors contributed to the UK’s labour shortages. For example, employers are struggling to recruit within the low-wage industry. As a result of Brexit, the UK government has attempted to address the shortage of labour within certain sectors such as the introduction of the Health and Care visa route for those working within the care sector. However, in reality, this is not enough to properly cater for the needs of businesses who rely on low skilled workers as there isn’t a relevant work visa  to sponsor them under.

Home Office’s New Plan for Immigration & Sponsorship Roadmap

In 2020, the Home Office announced they were ending free movement in favour of a points-based system in the hope of attracting high-skilled workers to help contribute to the economy, communities and public services. The Home Office set out a ‘sponsorship roadmap’ demonstrating what changes they were proposing to make in order to create a digital points-based system.

Since that announcement, the Home Office have made a number of changes:

• Making the sponsor licence application fully paperless;
• Suspending the cap on Skilled Workers; and
• Removing the Resident Labour Market test.

The introduction of the system appears to have had a positive effect, despite the initial impact of the global pandemic, with the number of visas issued across work and study routes now exceeding pre-pandemic levels with 749,000 in the year ending March 2022, compared to 589,000 in the year ending March 2020.

What further changes are on the horizon?

By 2025, the Home Office hopes to have a fully digital, end-to-end journey for customers which includes easy products, in turn reducing the need to request any additional information. Any queries that are raised will be resolved via a digital self-service support service and the UKVI are working on a ‘chatbot’. The aim is that a customer will no longer need to wait to speak with an agent (therefore reducing processing times).

Planning to travel to the UK – the Home Office are creating clearer guidance for applicants to follow in order to help with the application process. They have already enabled the use of smartphones to provide facial biometrics with the use of their App which means applications can be completed from the applicant’s own home and their biometric data can be stored on the system for re-use where appropriate. The Home Office are intending to expand the list of routes able to make use of this resource. By the end of 2024, people planning to travel to the UK will no longer need to provide any physical documents.

Permission to Travel Scheme (by the end of 2023) – the scheme will inform the Home Office of who wants to travel to the UK and highlight those who may already be deemed as a threat so they can tackle any problems at an earlier stage in the process.

Crossing the Border – there are an average of 144 million people crossing to the UK border each year and so the Home Office are set to focus on streamlining this process:

• Near term (end of 2023) – increase the use of automation by driving up usage among those who are already eligible to use eGates. By reducing the age limit from 12 to 10 years and assisting passengers, the Home Office are hoping more migrants can make use of the eGates faciliaties.
• Mid-term (2023 onwards) – expand the eGates offering and open that up to those who already have an immigration permission, e.g. people with Indefinite Leave to Remain or Student visas.
• Long-term – introduce contactless entry, expand the contactless entry to other areas, for example maritime and rail ports and trial a Pre-Clearance Model on select departure points in which workers will not need to go through eGates as their border requirements will be fulfilled prior to departure.

Employers sponsoring workers – compliance remains at the core of the Home Office’s priorities which is clear from the changes already made and the proposed updates. Over 40,000 employers have successfully become licenced sponsors and most of those decisions are delivered within less than 8 weeks. Between now and 2024, the Home Office are hoping to reduce the time it takes to sponsor a worker from overseas whilst ensuring they continue to provide a quality service. The timeframes in relation to sponsor licences have been impacted by the labour supply issues and the Home Office expect to deliver improvements by Spring 2023. The following packages will now be in place by 2025, subject to user feedback and the success of the testing period:

Package	Roll-out	Deliverables
Sponsor a Visa	Early 2023	Provide the functionality allowing workers to make their visa application once role details have been approved and in turn, pre-populate the application with the role information provided by the sponsor/employer.
Manage a Licence	Late 2023	- Improve the process of making changes to the licence, for example adding and removing users. - Add a viewing option to track sponsored workers, their status and prompt actions when necessary. - Enable automatic checks against data held by departments, e.g. HMRC and Companies House.
Become a Sponsor	Early 2024	Make it easier to apply for a sponsor licence and introduce automatic checks to ensure a user is employed by, or is an office holder of a sponsored organisation.

Workers living in the UK – through development of online services, the Home Office are making it simpler to comply with rules and access entitlements (for example, demonstrating the right to work or access to the NHS). Biometric Resident Permits (“BRPs”) are being issued with an end date of ’31 December 2024’, despite the fact the visas were granted for longer than that. This is because after that date, the UKVI will rely on an electronic immigration status instead of using the physical BRP card.

What do employers need to be doing? Now that we are transitioning in the new system, sponsoring Skilled Workers is becoming increasingly popular, therefore it is crucial that employers keep abreast of any changes and what they should be doing to avoid any potential penalties.

Migration Advisory Committee’s review of the current Shortage Occupation List

In August 2022 the Migration Advisory Committee (“MAC”) were requested to review the current Shortage Occupation List (“SOL”).  The UK labour market has changed significantly over the last few years and the current SOC 2010 system is outdated and does not reflect the changes and trends in UK employment.

The MAC was commissioned to consider the following factors when reviewing the current SOL:

• Salary requirements: should the going rate be increased?;
• Updating SOL: are there any current roles on the SOL that should be removed?
• Roles needed: Are there any shortages of skills in any industries requiring a need for any roles to be included on the SOL? If so, at which skill level?

The MAC had accepted and welcomed the commission; however, they have currently paused their review of the SOL as they await clarification from the Government as to its priorities surrounding the Skilled Worker route.  The MAC was expected to produce their final report and recommendations by the end of March 2023. It is hoped that the Government will ask the MAC for their input and consider MAC’s suggestions before making any changes which are planned for Autumn 2023.

Exemption from the Immigration Skills Charge

This month we saw a new Immigration Skills Charge (“ISC”) exemption launched for employers who use the Global Business Mobility – Senior or Specialist Worker (GBM – SSW) route for EU nationals based in an EU overseas office.

What is the new exemption?

The Immigration Skills Charge (Amendment) Regulations 2022 provides that sponsors of the GBM – SSW route will be exempt from paying the ISC if all of the following apply:

• The CoS was assigned on or after 1 January 2023;
• The migrant is a national of an EU country (does not include Iceland, Liechtenstein or Norway) or is a Latvian non-citizen;
• The non UK employing entity is a business established in the EU and which forms part of the same group as the sponsor; and
• The CoS period covers no more than 36 months.

Potential cost saving?

The ISC makes up the majority of the sponsor’s direct costs of sponsorship, for large sponsors it is £1,000 per year of sponsorship.  This exemption will therefore reduce the overall cost of sponsoring group employees who are required to relocate to the UK on a short-term basis. As the application of the exemption is selected by the sponsor when the CoS is assigned, a clear understanding of when an ISC exemption applies is very important as there can be severe consequences if an incorrect exemption is applied.

Focus on Sponsor Compliance Activity

In 2022 we saw an increase of inspection activity and action taken against sponsor licence holders after the restrictions of the pandemic lifted.  UKVI’s published figures show a significant rise in suspension and revocation of sponsor licences in 2022. We can expect to see this continue in 2023 as the UKVI sponsorship roadmap confirms that compliance is central to the UKVI’s approach to sponsorship and the Sponsor Guidance has been changed to include desk based audits.

The Prime Minister also announced in Parliament in December that immigration officers would be freed up to undertake enforcement and expected raids on illegal working to increase by 50%. This is reflected on the Home Office’s latest report (23 January 2023) which stated that 1,152 immigration enforcement visits took place since 11 December 2022 (nearly 10% increase within the previous 5 weeks). 

According to the Home Office’s latest report, 92 illegal working civil penalties with a value of £1.5 million was issued and 362 arrests were made as part of the immigration enforcement action.

All Sponsors can expect more scrutiny from UKVI and it is important to be prepared for an inspection. See how we can help with getting you audit-ready.

EU Settlement Scheme

EEA nationals living in the UK prior to the 31 December 2020 had until the 30 June 2021 to make their application to the EU Settlement Scheme in order to regularise their status in the UK. You might therefore assume that all had gone quiet on this front since the deadline has passed. However, many EEA nationals have continued to submit late applications where they can show ‘reasonable grounds’ for why they missed the deadline. Those who have been granted pre-settled and fail to apply to convert this to settled status after five years of continuous residence, risk becoming overstayers and unlawfully resident in the UK.

However, in the recent case of Independent Monitoring Authority v Secretary of State for the Home Department [2022] EWHC 3274 (Admin), the High Court held that the EU Settlement Scheme breaches the UK-EU withdrawal agreement because it fails properly to protect the rights of EU citizens issued with pre-settled status (issued to over 2.6 million people so far). The Court considered that the need to make a subsequent application to convert pre-settled status into settled status (i.e. indefinite leave to remain) is wrong in law as failure to do so is not included in the defined list of reasons why a resident can lose their rights in the UK.

The Home Office has indicated that it intends to appeal the judgment. If the decision is upheld, this will have a huge impact on those currently with pre-settled status as they presumably will no longer need to apply to convert their status. It remains to be seen what action the Home Office will take in respect of this decision while they wait for their appeal to be heard.

The impact will be limited to those individuals who have remained in the UK as one of the defined circumstances for losing your rights is staying outside of the UK for too long. As such, this decision will not prove helpful to those who have left the UK for more than six months’ in each of the five necessary years, unless they have a ‘good reason’ for doing so.

Agricultural Sector Routs & Rural Visa Pilot

A significant proportion of the UK’s agricultural workforce (at least 11%) is made up of seasonal or casual labour. The sector overwhelmingly relies on migrant workers to fill these seasonal roles, playing a key role in the UK’s food security.

Labour shortages in the sector are becoming more pronounced as a result of Brexit. Although some in the sector have been lucky enough to have the benefit of loyal seasonal workers with settled and pre-settled status. The Government’s position is that the sector should recruit settled workers and increase mechanisation, rather than rely on migrant workers. Some agricultural sector organisations have submitted that, despite their efforts to recruit settled workers, they often struggle to recruit domestic labour as there is not enough interest in agriculture roles. Defra, in its report a Review of Automation in Horticulture, also noted that, while promising automated technology is being developed, it is not yet commercially available and the technology currently available “will not have a significant impact on the labour needs of the sector in the short term, or even the medium term.” To address the current labour shortages, the Government has taken the following actions:

• Introduced the ‘Seasonal Workers Pilot’:
  • This is for migrant workers to come to the UK on a scheme to undertake seasonal work in the horticultural or poultry production sectors.
  • To date, only six recruitment companies, known as ‘scheme operators’ have been approved to sponsor Seasonal Worker visas. The agricultural sector must recruit their migrant workers through these companies and show that they are actively trying to recruit settled workers.
  • The Seasonal Workers Pilot scheme is subject to quotas. For 2023, the quota is 47,000, with 45,000 places for the horticulture sector and 2,000 places for the poultry production sector.
  • Horticulture workers can be sponsored for a maximum period of six months in any 12 month period, while poultry production workers from 18 October to 31 December (inclusive) each year (visa applications for poultry production workers must be submitted on or before 15 November each year).
  • There have been calls from the sector for an increase in the number of visas issued annually, an increase in the length of visa validity and increased assurances that the Seasonal Workers Pilot will be extended beyond 2024.

• Added some agricultural roles to the list of eligible occupation codes for the Skilled Worker (e.g. 5111 Farmers, 5112 Horticultural Trades, 5119 Agricultural and fishing trades elsewhere classified):
  • The uptake of this route is considerably lower than the Seasonal Worker route.
  • Most of the labour required by the sector (i.e. picking, packing and processing) is not eligible for a Skilled Worker visa.

The Independent Chief Inspector of Borders and Immigration (ICIBI) completed a recent review into immigration routes for agricultural workers, sponsorship compliance requirements and the Home Office engagement with the sector, making the following findings:

1. Compliance: The Government recognises that seasonal agriculture workers “may be more vulnerable and open to exploitation than other workers”. As such, the compliance requirements for the Seasonal Worker route focus not only on immigration requirements, but also on ensuring worker welfare. To further improve compliance by scheme operators, the ICIBI made the recommendation that the Home Office conduct an review into the Seasonal Worker route, focussing particularly on: improving training and guidance for compliance officers; creating clear operating manuals covering when referrals should be made and to whom; creating clear policies and guidance for action where compliance visits indicate scheme operations are not following guidance; and ensuring that compliance visits are driven by intelligence. The Home Office has accepted the ICIBI’s recommendation, confirming that its review should be completed by April 2023.
   
   
2. Communication: While some stakeholders from the agricultural sector liaised with the Home Office through formal and informal routes, some farmers and other growers who employ seasonal workers said they did not engage with the Home Office at all, instead liaising with Defra, with the scheme operators or with sector organisations. The ICIBI made the recommendation that Home Office produced a communications and engagement roadmap specifically focussed on the agriculture sector, which the Home Office has accepted, confirming the roadmap will be published by April 2023.
   
   
3. Clarity of roles and responsibilities: The evidence obtained in the ICIBI’s inspection suggested there is a lack of clarity as to how roles and responsibilities were divided across the Home Office, other Government departments, devolved administrations and local authorities, particularly in relation to the Seasonal Worker route. The ICIBI recommended that, for the Seasonal Worker route, the Home Office produce and publish a reference document clarifying who is responsible for what across the Home Office, other government departments, devolved administrations and local authorities, which should be underpinned by a memorandum of understanding between all relevant parties. While the Home Office has confirmed it will publish a document by July 2023 setting out the roles and responsibilities of the various Home Office units involved with the Seasonal Worker routes, it could not “dictate the roles and responsibilities of other government departments, devolved administrations, and local authorities, nor could it compel those organisations to agree a memorandum of understanding”, and instead, would share the document with the document it produces with the relevant organisations and encourage the production of a similar roles and responsibilities framework that could then form the basis of a memorandum of understanding.
   

While the Home Office accepting the ICIBI’s recommendations will come as welcome news to the agricultural sector, it is unlikely that any of these recommendations will have an impact on the labour shortages that the agricultural sector is currently facing. Nonetheless, we await the publication of the Home Office’s review into the Seasonal Worker route and the communications roadmap in April 2023 and the roles and responsibilities document in July 2023.

In the meantime, many in the sector are carefully reviewing their resourcing needs for 2023 and whether or not a sponsor licence can help alleviate labour shortages for roles that are sponsorable. For example, in addition to the SOC codes 5111 Farmers, 5112 Horticultural Trades, 5119 Agricultural and fishing trades elsewhere classified as highlighted above, 5112 Horticultural trades, 5431 Butchers, 5433 Fishmongers and poultry dressers, 9119 Fishing and other elementary agriculture occupations not elsewhere classified now all meet the required skill level for sponsorship for a Skilled Worker visa.

Electronic Travel Authorisation

The Home Office is set to introduce an Electronic Travel Authorisation (ETA) in 2023. This is a digital authorisation to allow an individual to board a carrier travelling to the UK, similar to the ESTA system in the USA. The online application is to be completed in advance of travel, following which the individual is checked against the Home Office systems to determine whether they pose any threat. Carriers will be expected to confirm that an individual has an appropriate permission to travel, in document or digital form, before they bring them to the UK. Otherwise, they may be liable to a penalty charge.

The ETA scheme is part of the Home Office’s “permission to travel” requirement, which will require everyone travelling to the UK (except British and Irish citizens) to seek permission in advance of travel. The ETA is for those passengers visiting or transiting through the UK who do not currently need a visa for short stays or other specified immigration status. This includes EEA citizens and citizens of the USA, Canada, Australia, New Zealand, Hong Kong and Singapore.

The aim is to strengthen security checks by giving UK border control and law enforcement authorities more information and more time to assess whether a risk is posed in advance of the individual’s arrival. The EU is also expected to implement a similar system, the European Travel Information and Authorisation System (ETIAS) in 2023.

The cost of obtaining an ETA is yet to be announced but we expect it to be an online application with provision of biometrics and payment of a small fee. The ETA scheme will be rolled out in phases, beginning in early 2023, and will be fully in place by the end of 2024.

Employers will need to ensure forward planning in the event that an employee is travelling to the UK on business in order to check whether the individual is caught be the scheme and, if so, allow sufficient time to apply for an ETA prior to travel.

Increase to National Living Wage & changes to salary thresholds

The National Living Wage (NLW) will rise to £10.42 from 1 April 2023, an increase of 9.7%. The rates include the largest increase to the NLW since its introduction in 2016. Alongside the NLW, there has also been a significant increase in the National Minimum Wage (NMW) rates for younger workers. The 21-22 Year Old Rate will increase to £10.18 and NMW rates for 18-20 and 16-17 year olds and apprentices will increase in line with the NLW increase of 9.7%, in recognition of the tight labour market and strong demand for labour in youth-friendly sectors.

Sponsors should ensure that migrant workers’ pay is not less than £10.42 per hour from 1 April 2023, even if their annual salary meets the ‘going rate’ for their SOC Code, i.e. sponsors should consider any additional hours worked by the migrant, such as overtime, in calculating hours worked. Sponsors should also be aware that there may be changes to salary thresholds and so should ensure the relevant salary requirements are met before making any visa application.

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Alerts, webinars and resources

Global employment and labor law update - We issued our fourth edition of our quarterly Global Employment and Labor Law update for 2022 in November last year. This update includes reports on themes emerging globally around transparency, equality and fairness with updates on changes to significant laws around harassment, pay reporting and victimisation. Read our latest update on legal employment and labor law developments.

Sign up for Immigration updates - Catch up with our latest immigration round-up, providing a helpful summary of what's new and in the pipeline for UK immigration, along with links to a wealth of detailed resources and courses at your disposal.

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Upcoming public courses

25 April 2023 – 27 April 2023 at 09:30 am to 11:30 am Immigration UK Business – sponsor licencing course

This course is aimed at those within organisations who have responsibility for immigration issues. It is suitable for HR, global mobility and legal professionals who oversee this, operate the Sponsor Management System or who intend to do so in future. The modules do not presume prior knowledge of immigration law.

23 May 2023 – 25 April 2023 at 09:30 am to 11:30 am Immigration UK – Right to work in 2023

This course is aimed at those within organisations who have responsibility for immigration issues and compliance with right to work checks. It is suitable for HR, global mobility and legal professionals who oversee this, operate or implement right-to-work checking processes. The modules do not presume prior knowledge of immigration law.

Delegates will gain an insight into

• strategic and practical issues that HR professionals need to consider when reviewing immigration processes and creating a system which is compliant with the new requirements; as well as considerations on how this system should operate
• making a manual and online right to work check and using the Employer Checking Service
• in-depth consideration of IDVT in line with Home Office requirements
• managing leave to remain expiry for existing employees
• how to object to civil illegal working penalties
• additional requirements for student workers
• managing informal contact from the Immigration Enforcement
• practical worked examples of managing problems

Ensure you are subscribed to our training updates: Subscribe to receive training updates, briefings and event information

For Immigration updates select: Preferences -> Service lines -> Employment & Labor Law -> Immigration and Global Mobility.

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Round-up Live

Round-up Live is coming! Watch this space!

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