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In this bumper quarterly update, we look at the recent release of the Government's Statement of Changes to the Immigration Rules, the Spring Budget, updated right to work guidance and the India Young Professionals Scheme ballot. Below we have highlighted several important updates which employers should be aware of and, where applicable, implementing in their workforce.
The Innovator route is being replaced with the Innovator Founder route from 13 April 2023; and the Start-up route is being closed to all new applications (except where they are supported by endorsements issued before 13 April 2023). The two main benefits of the Innovator Founder route are the removal of the £50,000 minimum investment requirement and the relaxation of the restriction from undertaking additional employment – supplementary employment will now be permitted provided that the migrant works in a skilled role.
There will also only be three Home Office approved endorsing bodies moving forwards, but it is not yet clear at what stage these bodies will take over. We intend to produce a separate article with further details on the new Innovator Founder route, if there is an increase in take up, or if further changes are made.
From 12 April 2023, the new general salary threshold for Skilled Workers will increase from £25,600 to £26,200 and the minimum hourly rate will increase to £10.75 (up from £10.10). The going rates for occupation codes in Table 1 of Appendix Skilled Occupations will also be based on a 37.5-hour week (down from 39 hours per week).
From 12 April 2023, the minimum salary threshold for Senior or Specialist Workers (under the Global Business Mobility route) will increase from £42,400 to £45,800.
The Immigration Rules (the Rules) will provide clarification from 12 April 2023, on how to calculate salaries for workers under these routes with irregular working hours, confirming that:
The minimum rate of hourly pay for Seasonal Workers is increasing in line with National Minimum Wage and National Living Wage increases in April 2023. In addition, a requirement for guaranteed minimum hours of 32 hours per week is being introduced.
The requirements for endorsement under the Global Talent route are being amended from 12 April 2023, such that endorsing bodies will be able to consider the applicant’s supporting evidence and skills holistically, rather than assessing individuals against objective criteria. In addition, the Rules now set out specific evidence which will be required by some of the specialist endorsing bodies, for example, Arts Council England and the National Academies.
The ETA scheme will begin its roll out in stages from November 2023. The ETA will need to be sought ahead of travel to the UK, where nationals are applying as a visitor for up to six months or as a Creative Worker for less than three months.
Stage 1 of the roll out will be for nationals of Qatar who intend to travel to the UK on or after 15 November 2023, and stage 2 for nationals of Bahrain, Jordan, Kuwait, Oman, United Arab Emirates or Saudi Arabia, who intend to travel to the UK on or after 22 February 2024. The requirement for nationals of these countries to obtain an Electronic Visa Waiver (the old scheme) will be phased out at the same time as the ETA scheme is introduced. In addition, these countries will be removed from the visa national list, so that nationals will not need to seek formal entry clearance prior to travel to the UK.
The introduction of the ETA scheme is part of the government’s plan for a digital-only immigration system and allows prior scrutiny of previous criminal conduct and UK immigration history to be assessed before the person travels. It is likely the decision-making will be automated, meaning no grounds for discretion, so where an ETA application is refused, the applicant would need to make a formal entry clearance application. The wider roll out to other non-visa nationals is expected during the latter part of 2024. The government’s latest webpage with further guidance can be found here. This link states that ETA applications should be decided within three days unless further checks are required.
On 15 March 2023, the Chancellor of the Exchequer delivered the Spring Budget and stated his clear intention to grow the UK economy. It was announced that:
The guidance now makes it expressly clear that to establish a statutory excuse, an employer must only use an Identity Service Provider (IDSP) for right to work checks for British or Irish nationals who hold a valid passport (or Irish passport card). If employers use an IDSP in other circumstances, i.e., they use an IDSP to conduct an online check, a statutory excuse to a civil penalty will not be established. As such, employers and Sponsors that have engaged, or are considering engaging, an IDSP should review their current processes to check they are in line with the latest guidance to maximise their statutory protection.
Whilst liability for a civil penalty would only arise in practice if an employee was found not to have the appropriate right to work in the UK, employers who hold sponsorship licences should be especially mindful of this updated guidance, as right to work compliance is one requirement of their role as a sponsor and there are potentially serious consequences for their sponsorship licence if they are non-compliant, including downgrading and revocation of their licence.
Employers should be aware that the right to work guidance requires the employer to satisfy themselves that the photograph and biographic details (i.e., date of birth) on an IDSP check is consistent with the information they have about the candidate they’re hiring, either in person or via a video call. While this is not a new requirement in the updated guidance, we have come across instances where employers are not taking this step and therefore, are not complying with the guidance. This is a helpful reminder that the verification step is vitally important in the right to work process.
The latest version of the guidance now confirms that a current passport which is endorsed to show that the holder is entitled to readmission to the UK, is an acceptable right to work document under List A.
The guidance confirms that migrants may have a biometric resident permit (BRP) which expires on 31 December 2024, even if their permission to stay in the UK ends after this date. Therefore, in order to check the date, the migrant’s permission expires, the migrant should provide the employer with their share code so that the employer can then complete an online check in order to confirm their right to work and expiry of their permission.
Under the updated guidance, employers can conduct an online right to work check for migrants who hold an eVisa and whose in-time application for permission to stay in the UK is outstanding. In these circumstances, employers should ask the migrant to provide their share code and then use the online service to conduct a right to work check, without the need for the employer to use the Employers Checking Service.
The online check should provide confirmation that the migrant has the right to work and provide the employer with a statutory excuse for six months, at which point, the employer should conduct a follow-up check, if they have not already done so. This update should ease the burden on the Employer Checking Service.
Level 1 users should have received an update, via the Sponsorship Management System (the SMS) that from 24 March 2023, some requests made via the SMS will be automated. The reason for automation is to enable certain requests, including requests to replace key personnel, to receive an immediate response.
Level 1 users should ensure that they check notifications in the SMS on a regular basis to ensure they are aware of changes such as this.
February saw the first 2023 ballot for the India Young Professionals Scheme visa (the Scheme). This Scheme is similar to the Youth Mobility Scheme and enables Indian citizens aged between 18 and 30 years old to live and work in the UK for two years and may be a good alternative to obtaining sponsorship for migrants. In order to be eligible, applicants must:
In order to be able to submit an application for the Scheme, migrants must first apply and be selected in the India Young Professionals Scheme ballot. The first ballot has already been held and there were 2,400 visas available. Details of future ballots will be announced here.