The government has announced some additional details of the proposed Points-Based System to be introduced from 1 January 2021. This adds to the information originally published in February 2020 but does not provide all the answers employers and individuals need as yet.
Further information is expected over the course of the next few months and the government has indicated that draft immigration rules will be shared with stakeholders soon.
General Principles
Until the new Points-Based System is introduced, on 1 January 2021, non-EU citizens will continue to come to the UK as they do now, and EU citizens will continue to exercise their rights under the terms of the transition arrangements which allow for continuation of freedom of movement. EU citizens who arrive before the end of the transition period on 31 December 2020, and relevant family members, will be eligible for the EU Settlement Scheme. They have until 30 June 2021 to make an application under that scheme.
Everyone, whether an EU or non-EU citizen, wishing to come to and live in the UK from 1 January 2021 will need to demonstrate their right to be in the UK and the entitlements they have. All applicants will receive written confirmation of their immigration status, which is a welcome change from previous proposals for EU citizens only to have electronic status. However EU citizens will still be provided with secure access to their immigration status information via an online service which they may choose to use instead of a physical status document.
From January 2021, most EU citizens will not need to attend a Visa Application Centre to enrol their biometrics and will instead provide facial images using a smartphone self-enrolment application form. For the time being EU citizens will not be required to do this to come to the UK as a visitor but the government say that is part of their “longer-term vision”.
When applying for visas, EU citizens will be required to pay the same application fees and Immigration Health Surcharge as non-EU citizens, and employers will be required to pay the Immigration Skills Charge where applicable..
Criminality thresholds for the refusal of entry/applications and deportation will apply the same to EU and non-EU citizens. For EU citizens who are protected by the Withdrawal Agreement, the tougher UK criminality thresholds will apply to conduct committed after the end of the transition period. The EU public policy, public security or public health test will continue to apply to their conduct committed before the end of the transition period.
As part of a phased programme to 2025, the government plans to introduce a universal ‘permission to travel’ requirement which will require everyone wishing to travel to the UK (except British and Irish citizens) to seek permission in advance of travel. British and Irish citizens can simply present their passports, while visa holders can present their visas (which the government intends to develop into a digital record to replace physical ones). People without visas will need to obtain Electronic Travel Authorisations (ETAs) prior to travelling.
Future Immigration System
Beyond the main work and study route, most of the immigration routes will have the same requirements as they already do for non-EU citizens and EU citizens applying under these categories will need to meet the same rules. EU citizens will need to get a visa for all activities other than short-term visits.
The government has stated that they will allow most migrants to apply to switch from one immigration route to another without having to leave the UK. This will support employers in retaining the talented staff that they have invested in. This will be a change from the existing rules where changing in country is often not allowed and people need to apply overseas, but may not apply in all cases so we will need to wait for the rules to confirm. However, the government has confirmed that there will be no right to switch in the UK for work or study for those on short-term routes such as visitors and seasonal workers, with the exception of certain entrepreneurial visitors.
Click the links below to find out more about changes to specific areas of immigration law.
The government has already said that its intention is for citizens of the EU and Switzerland not to require visas to visit the UK (e.g. as tourists or for business). Otherwise, the existing activity restrictions on non-EU citizens will apply to EU citizens, such as not being able to work as a visitor – a work visa would be required as discussed below.
One planned change for the visitor category is to remove the limit on short term study in the UK as a visitor. Currently only recreational study or no longer than 30 days is permitted. The government proposes to allow study of up to six months under the standard visit route. All non-recreational study must be undertaken at an accredited institution. Recreational courses (lasting no longer than 30 days and which do not lead to any formal qualifications), will not need to be undertaken at an accredited institution.
This category is currently catered to by Tier 2 and its various subcategories, including Tier 2 (General) and Tier 2 (Intra-Company Transfer). These will be replaced by a Skilled Worker visa and an Intra-Company Transfer visa.
Existing Tier 2 (General) and Tier 2 (Intra-Company Transfer) sponsors will automatically be granted a new Skilled Worker licence or Intra-Company Transfer licence, with an expiry date consistent with their current licence, and receive an appropriate allocation of Certificates of Sponsorship. Employers who do not currently have a licence will be able to apply for a Skilled Worker licence in advance of the new rules coming in, or can apply for a Tier 2 licence now so it can be converted later.
The government has advised that the need to advertise the position (the Resident Labour Market Test) and the annual immigration limit will not apply to the Skilled Worker visa. Simply dropping these from the process could save employers up to eight weeks in the visa process, and the government has claimed that further streamlining changes will follow down the line.
As with the current Tier 2 (General) category, the mandatory requirements are:
- Skilled Worker applicants must be sponsored by an authorised employer;
- the job must meet a minimum skill level (RQF Level 3 or broadly A-Level, a reduction from the current Level 6, broadly graduate level); and
- the individual must have a minimum level of English language.
Meeting the mandatory criteria above will earn the applicant 50 points out of the required 70. They must obtain a further 20 “tradeable” points through a combination of points for their salary, a job in a shortage occupation or a relevant PhD.
In most cases the applicant needs to be paid at least the general salary threshold of £25,600 or the “going rate” for their particular job – whichever is higher. This will score the required 20 points.
If a person is not paid at least the general salary threshold or going rate (whichever is higher), they may be able to make up points elsewhere as long the salary does not drop below 80% of the going rate (70% for “new entrants”) and does not drop the absolute minimum of £20,480. No one in the Skilled Worker category can be paid below this amount.
Ways to make up the missing points include a job offer in a specific shortage occupation or a PhD qualification relevant to the job. “New entrant” workers are also able to make up points elsewhere, as long as they meet the absolute base-line salary requirement.
Migrants will be defined as new entrants under the Points-Based System if they meet one of the following requirements:
- They are switching from the Student or Graduate route to the Skilled Worker route;
- They are under the age of 26 on the date of their application; or
- They are working towards recognised professional qualifications or moving directly into postdoctoral positions.
Individuals employed in specific health and educational roles who meet the minimum salary and the relevant national pay scale will score the full 20 points without needing to make up further points elsewhere.
As under the existing system, going rates for individual occupations can be pro-rated depending on the applicant’s working pattern, as long as the total applicable general salary threshold (£25,600, £23,040 or £20,480) is met. Going rates can be pro-rated but the minimum cannot.
Applicants will only be able to score points for having a PhD relevant to the job and this will only be available for certain occupations. A list of occupations which will, and will not, be able to claim PhD points will be kept under review. Sponsors will need to decide and be able to justify whether an applicant’s PhD is relevant to the job they are sponsoring them for and to advise whether it is a STEM PhD. Points will only be awarded for “academic PhDs” so may not apply to other doctorates – this is unclear at present.
With regard to the salary thresholds, employers should note that the government says that PAYE records for all Skilled Workers will be regularly checked to confirm they are being paid the correct salary.
The Health and Care Visa will part of the Skilled Worker route and is in fact being rolled out from 4 August 2020 as part of the existing Tier 2 (General) route. Applicants must meet all the normal requirements such as salary and skill level for the Tier 2 (General) category (and for the Skilled Worker category from next year).
This visa is only open to jobs falling within specific Standard Occupational Classification (SOC) codes. There will be reduced application fees (not currently published) and applicants and their dependents will also be exempt from having to pay the Immigration Health Surcharge. Frontline workers in the health and social care sector who are not eligible for the new Health and Care Visa (e.g. they don’t fall within the specific SOC codes) will still need to pay the Immigration Health Surcharge up front, but will benefit from a reimbursement scheme. Further details are expected in due course.
The government also says that applicants will benefit from fast-track entry “with the aim that the vast majority are processed within three weeks from the point the applicant has provided their biometric information. This is in comparison to the current timeframe for visa processing of between eight and twenty weeks.” Given that the service standard for overseas applications is to process within three weeks anyway, it appears that only migrants already in the UK will benefit from this so it’s not clear where the fast-track “entry” comes in.
Unlike the Skilled Worker route which is reducing the required skill level of roles, the ICT route still will require applicants to be in roles skilled to RQF Level 6 as it currently is. A different minimum salary threshold from the main Skilled Worker route will also apply (currently unspecified) but, as with the current ICT category, it will not be subject to English language requirements. However, as with the current category, there will be a requirement that the worker has been employed by the sending business for a minimum period prior to the transfer. This will be 12 months in the case of intra-company transfers or three months in the case of intra-company graduate trainees. From the available information, it appears as if the 12 months’ employment exemption for salaries of at least £73,900 might be removed.
As presently, the route will not provide an avenue to settlement. Those admitted on the route will, however, be permitted to switch into the Skilled Worker route whilst still in the UK if they meet the qualifying requirements for that route. This is a significant change.
The government will also adjust the existing “cooling off” rules as they apply to intra-company transfers, replacing the existing 12 month ban at the end of every ICT visa to a requirement not to have an intra-company transferee visa for more than five years in any six-year period (except where they qualify to be granted up to nine years on the basis of their salary).
The government plans to create a broader, unsponsored route within the Points-Based System to run alongside the employer-led system, allowing a smaller number of the most highly skilled workers to come to the UK without a job offer. This route will not open on 1 January 2021 and no other details are available at this point other than that the category will be capped.
The new Points-Based Student route will build on the current Tier 4 system and the main requirements will remain essentially the same.
The government plans to extend the period of time in which a student can apply for permission to come to the UK before the start of their course, so they can make their application up to six months in advance rather than three months as it is for most visa type. They will also be removing the study time limit for students studying at a postgraduate level, although students will still be expected to be progressing academically.
The current Tier 4 Pilot Scheme (which has been trialling longer periods students can stay after the end of their course) will close as the new Student route opens. Students will generally be given a four-month ‘wrap up’ period post-study (although this will vary with length of course). The government says that this is because the planned Graduate route in 2021 will improve on this option. The current Doctorate Extension Scheme will also be closed at the point the new Graduate Route is introduced for the same reason.
The Graduate route will be launched in summer 2021 to provide international students the opportunity to stay in the UK to work or look for work after they graduate. Undergraduate and master’s degree students will be able to stay for two years under the route, whilst PhD students will be able to stay for three years. Graduates will be able to switch into other routes in line with the wider approach to switching when applying for leave inside the UK.
Applicants will be able to work, or look for work, at any skill level during this period. The route will also be Points-Based, with the full number of points being awarded for the successful completion of a degree from a UK Higher Education Provider with a track record of compliance.
Graduates whose dependants are already with them in the UK will be allowed to continue sponsoring family members who make an application for further leave at the same time.
Based on the recently published information, it appears that Graduate visa holders can undertake supplementary study, but not at a Student route sponsor. This seems oddly restrictive given that other work routes do not restrict access to supplementary study, but may just be to ensure that people do not use this category simply to undertake further study rather than work, in which case the Student route would be more appropriate and involve more oversight.
Other existing work routes, such as Start Up, Innovator, Global Talent, the Youth Mobility Scheme, sporting, religious, charity and creative visas and the UK Ancestry category seem to be surviving relatively unchanged. The most significant difference are that these categories will be open to EU citizens and that greater flexibility for changing category in the UK will be allowed.
The government has indicated that the Government Authorised Exchange category will be reviewed to consolidate some of the various exchange, research and internship programmes. The International Agreement category will also be reviewed and improved.
Family-based visas are not discussed in the latest published information but it is understood that existing rules for non-EU citizens will apply to EU applicants.
If you would like any further advice on the issues discussed above, then please get in touch with our Immigration team who would be happy to assist.