Immigration Bulletin - November 2020

Our last bulletin focused on the substantive changes foreshadowed by the Home Secretary’s announcement on 13 July 2020. We now focus on some of the practicalities arising out of the Government’s recent Statement of Changes, with our main focus on the new Sponsored Skilled Workers (SSW) route.

When will the SSW route open for applications?

From 1 December 2020, the Tier 2 General route will close and all applications to employ non-EEA nationals, including Tier 2 General extensions, will be assessed under the SSW framework. Sponsors’ Notes will be required for Certificates of Sponsorships assigned prior to 1 December in support of applications submitted post 1 December 2020. From 1 January 2021, Sponsors will be able to submit applications to employ EEA nationals under the SSW framework.

Following inception of the SSW will the Home Office retain the right to audit historic files for Tier 2 General Migrants?

On the basis of the current information, yes. The Home Office will continue to audit Tier 2 General Migrants’ files to assess Sponsor compliance with the then prevailing Rules and Guidance. The retention period for Tier 2 Migrant’s Right to Work documents is an overarching period of 2 years following the cessation of a Tier 2 Migrant’s employment or the Home Office’s Audit of the file, whichever is the earlier. Conceivably, non-compliance could still lead to Civil Penalties and other sanctions including the suspension and revocation of the Sponsor’s Licence. The latter now carries even greater significance, given that post 31December 2020, it will be the principal tool to employ both EEA and non-EEA nationals.

Will the “Cooling Off” requirements apply under the SSW Rules?

No, the Cooling Off period will not apply to applications submitted under the SSW framework. Specifically, this includes those who held Tier 2 General visas which expired in the last 12 months, who will now be able to apply immediately under the SSW provisions. For example, a non-high earner Tier 2 General Migrant whose visa expired in September 2020, may from 1 December 2020 apply under the SSW provisions. This will benefit most erstwhile Tier 2 General Migrants and their Sponsors, whose visas were previously limited to a maximum non-extendable period of 6 years.

Will the “Cooling Off” requirements apply under the ICT framework?

Yes, but in a more limited way. Under the new provisions, Intra-Company Transfer (ICT) Migrants will be able to spend 5 out of 6 years in the UK in the category, or 9 out of 10 years for those earning a minimum gross allowable annual remuneration of GBP 73,900 (the new ICT High Earners’ threshold). As under current Rules, and unlike the SSW framework, ICT migrants will not be eligible for indefinite leave to remain (ILR).

Will the SSW route be more accessible for those applying from within the UK?

Yes, in a reversal of the current position, applications from within the UK for the SSW framework will be possible from all categories save for Visitor, Short Term Student, Parent of a child at School, Domestic Worker and those granted visas outside the UK Immigration Rules. Logistically this benefits the Sponsor, prospective employees and their families who will be spared the delay and expense associated with a return overseas.

Will allowances form part of allowable earnings for SSW applications?

No, in a further departure from the current Tier 2 General Rules, allowances will be disregarded for “fresh” SSW applications. However as part of the transition from Tier 2 General, allowances can be included for SSW (and ILR) applications submitted prior to 1 December 2026 where the applicant was last granted permission under Tier 2 General, is still working for the same Sponsor and the allowances continue to be guaranteed for the duration of the visa.

Will allowances form part of allowable earnings under the ICT framework?

Yes, provided they are also payable to a UK national or Settled Worker.

Will there be a concession for COVID-related absences from the UK?

Yes pandemic-related absences will be exempt. This is of particular importance to those stranded overseas for COVID-related reasons but who are otherwise eligible to apply for ILR.

How should UK companies prepare for the new system?

Preparatory steps employers can take should include:

• Emphasising the importance for eligible employees to apply under the EU Settlement Scheme by the 30 June 2021 deadline at the very latest, albeit recommending that applications should be submitted ideally by 31 December 2020. The latter guards against the albeit highly unlikely scenario that a No Deal on Trade will lead to the revocation of the Citizens’ Rights provisions in the Withdrawal Agreement
• Given that after 31 December 2020 it will be the principal tool for recruitment of non-UK nationals, UK entities without a Sponsors’ Licence should consider applying as soon as possible
• Where viable recruitment of EEA nationals/ eligible dependents should be accelerated to start dates prior to 31 December 2020. This will facilitate applications under the EU Settlement Scheme with very substantial costs advantages to employers
• Ensure that future annual recruitment budgets are adjusted to reflect the significant additional costs associated with recruitment of non-EEA nationals
• Amend UK Immigration Policy documents to reflect general changes, and specifically the enhanced Right to Work obligations triggered by the new system

Statement_of_changes_in_Immigration Rules