Recruiting non-UK nationals post-Brexit: Skilled worker visas and intra-company transfers
As the deadline of 31 December 2020 which marks the end of the post-Brexit transition period looms ever closer, businesses are rapidly having to get to grips with the biggest change in immigration legislation in a generation.
In recent weeks, new immigration rules and updated employer guidance have been published which set out the detailed requirements for what the immigration regime will look like from next year. These new rules will apply to the recruitment of most non-UK, non-settled nationals, whether from the EU or from elsewhere in the world (although notably nationals of the Republic of Ireland remain exempt from these new requirements). This provides businesses with some much needed clarity. Most applications under the new rules open on 1 December 2020.
The new Immigration Rules
The purpose of the Skilled Worker visa is to enable workers to come to the UK to take up a specific skilled role at a specific salary with a Home Office-approved sponsor.
The Intra-Company Transfer route is for established workers who are being transferred by the business they work for to do a skilled role in the UK.
Eligible skilled roles
The Government has now confirmed the list of roles that are eligible for Skilled Worker Visas. These skilled roles will need to be at a designated skill level of RQF level 3 or above. In other words individuals need to hold the equivalent of A Level standard education in order to be able to undertake these roles. Any roles that are of a lower skill designation i.e. RQF Level 2 etc are not eligible for the Skilled Worker route. Some sectors are very concerned at the gaps this will create in their workforce. For example, “care workers and home carers” are not deemed sufficiently skilled to apply under this route. Many roles in retail and hospitality, which have historically been filled by EU workers, will also not be eligible.
Under the Intra-Company Transfer route, the skill level for eligible roles remains at RQF level 6. This means that the eligible skilled roles are such that individuals typically need to hold degree level education to undertake them.
Businesses will need to be careful they don’t assume a role will be eligible for an Intra-Company Transfer visa, even where they have been able to recruit externally for it using the Skilled Worker route.
The Resident Labour Market Test
The new Immigration Rules confirm that employers will no longer need to complete a Resident Labour Market Test under the new Skilled Worker route.
In other words, the prescriptive requirements for advertising roles before applying for a work permit (which have required employers to place specifically worded adverts in specific media, such as the Government’s Find a Job service) have been removed.
This is great news for employers. The Home Office has been keen to emphasise that this will speed up the visa application process, as it removes the minimum 28 day lag period required to complete the advertising process.
However, the Immigration Rules confirm that employers will need to be able to demonstrate to the Home Office that the role is a genuine vacancy; that it exists and is not a sham or has “been created mainly so the applicant can apply [for a visa]”. (These requirements are mirrored in the Intra-Company Transfer section of the Rules.)
Employers also need to demonstrate that they have a genuine need for the role and that the applicant has the “appropriate skills, qualifications and experience needed to do the job as described”.
Precisely how employers will be able to satisfy the Home Office of these facts remains to be seen. It does seem that, in reality, this might require an employer to complete something akin to a resident labour market test. However, the more generic requirements may give employers more flexibility to carry out an advertising process in an appropriate way based on the vacancy in question. In other words, let’s hope that employers will no longer be forced to place adverts for very senior vacancies in the online job centre.
The Overseas Service Requirement
Under the Intra-Company Transfer route, applicants generally require a minimum of 12 months’ overseas experience in the group to be eligible for this visa.
These overseas’ service requirements are reduced to 3 months for the Graduate Trainee sub-route – which is where workers are being transferred to undertake a role in the UK as part of a structured fast-track graduate training programme.
The overseas’ service requirement is waived in its entirety for “high earners” i.e. those earning at least £73,900 p.a.
Employers looking to move EU nationals employed overseas by the group to the UK will need to be mindful of these requirements. It is a further restriction on EU national moves across global companies and may, in particular, affect graduate or intern programmes.
Minimum Salary Requirements
Salary requirements remain a crucial requirement for visa eligibility. Applicants in both the Skilled Worker and Intra-Company Transfer categories must be paid in line with minimum salary requirements.
Under the Skilled Worker route, there are a number of ways of scoring the points required for salary and, indeed, this is the only part of the visa process where there is any wriggle room over what is required.
The easiest way to score the required points for salary is for the applicant to be earning at least £25,600 per annum or the “going rate” for the role, whichever is higher, based on a 39 hour working week. For some roles this sets the minimum salary at a level significantly higher than £25,600 p.a.
The other ways in which points can be scored for salary are complicated and depend on both the nature of the role i.e. whether the role has been designated as a shortage occupation, the applicant’s educational qualifications (whether they have a PhD or a relevant STEM subject PHD), and whether they are classified as a “new entrant” to their profession, in other words whether they meet the criteria set down by the Home Office to be classed as someone just starting out on their careers. In all cases, however, the absolute minimum salary that must be paid is £20,480 per year.
For Intra-Company Transfer applicants, the minimum salary is £41,500 p.a. or the “going rate” for the role, whichever is higher. For those on the specific fast track graduate programme, who are eligible to apply for the Graduate Trainee visa, the minimum salary reduces to £23,000 p.a.
These salary requirements may also prove a significant hurdle for international moves across companies, particularly in the context of graduate schemes or those who are at the start of their careers.
Interestingly, under the Skilled Worker route, only basic gross salary “counts” for the purposes of working out an individual’s salary for immigration purposes, whereas for Intra-Company Transfer visas (some) allowances can still be taken into account, in addition to base salary.
English Language Requirements
Skilled Worker applicants must be able to demonstrate a minimum standard of English language ability. This is set at level B1 (intermediate). This is another hurdle for EU nationals wanting to apply under this visa route. Previously, EU nationals have never been required to document a specific standard of English language ability in order to exercise their free movement rights under the EU treaties.
Intra-Company Transfer applicants are not subject to any English language requirements.
Length of visas
The Immigration Rules confirm further good news for skilled worker migrants by removing some of the restrictions around how long visa holders can remain in the UK.
For Skilled Workers, there is no longer any maximum time period that they can spend in the UK n this visa category, and, in theory, they can keep extending their visa status indefinitely. (Of course, they may want to apply for indefinite leave to remain/settlement after 5 years’ continuous residence, assuming they meet the eligibility requirements that apply at the time.)
The rules have also made things a little easier for Intra-Company Transfer visa holders by abolishing the 12 month “cooling off period” which applicants faced in some circumstances when they left the UK.
Whilst the Intra-Company Transfer visa route still won’t lead to settlement, going forwards, migrants holding an Intra-Company Transfer visa will be able to spend 5 years in the UK in this category in any rolling 6 year period. For high earners i.e. those earning at least £73,900, they will be able spend 9 years in this category in any rolling 10 year period.
Next Steps
The immigration rules and visa requirements are about to get a lot more complicated for employers as they extend to cover EU nationals following the end of the Brexit transition period on 31 December 2020. Increasing numbers of businesses will need to navigate these issues over the coming months. We have the experience that you need to help you through all of these difficult issues, so please get in touch if you think this will affect you or if you have any questions.
