Previously announced changes
Suspension of the cap
The cap on the number of visas issued under the new Skilled Worker visa is to be suspended, which combined with other changes should see more Skilled Workers being granted entry clearance.
Lowering of thresholds
A number of thresholds are being lowered:
- The skill threshold will be lowered from RQF 6 – a bachelor’s degree or equivalent – to RQF 3 – equivalent to A-levels.
- The general salary threshold will be lowered from £30,000 to £25,600 per year. This may be further lowered for specific types of applicants, such as listed health or education occupations, relevant PhD qualified applicants, and new entrants. However, note that the going rate for the occupation will continue to apply, so the minimum salary will be whichever is the higher of the two thresholds. In addition, the salary floor cannot fall below £20,480 per year.
- The salary threshold for indefinite leave to remain (also known as settlement) will be lowered from £35,800 to £25,600, or the going rate for the occupation.
Removal of the Resident Labour Market Test
Crucially, sponsors will also no longer need to conduct the Resident Labour Market Test for applicants and their roles. This will substantially free up part of the sponsorship process. Note, however, the insertion of new requirements for entry clearance below.
Removal of the “cooling off period”
Finally, the so-called 12 month “cooling off period”, which forced employees to leave the country for a year before applying for a new visa, is removed. This brings all Skilled Workers in line with exemptions that were formerly only available to high earners, and reduces the global travel burden on sponsors.
A specific and interesting change is the removal of limits on shareholdings for applicants under the Skilled Worker route. Applicants sponsored by a Limited Company will no longer be barred from holding 10% or more of the sponsor’s shares.
New rules on reasonable grounds
Although the removal of the Resident Labour Market Test will be a welcome change, new rules announced as part of the Statement of Changes make it clear that sponsorship scoring will still be subject to rigorous standards, as the Home Office places a high duty of trust on sponsors.
The jobs for sponsored Skilled Workers will be subject to tests by the decision maker at the Home Office. These include a provision that the decision maker must not have reasonable grounds to believe the job the applicant is being sponsored to do, either:
- does not exist; or
- is a sham; or
- has been created mainly so the applicant can apply for entry clearance or permission to stay.
Similarly, in terms of skill level requirements, the decision maker must not have reasonable grounds to believe the sponsor has chosen a less appropriate occupation code for reasons including:
- The most appropriate occupation code is not eligible under the Skilled Worker route.
- The most appropriate occupation code has a higher going rate than the proposed salary.
- The most appropriate occupation code is not a shortage occupation and the applicant is claiming points for a job in a shortage occupation.
Without published guidance, these “reasonable grounds” demands on the decision maker leave open the possibility of significantly more subjective decisions being made by the Home Office. Bates Wells will monitor decisions as and when they arrive to ascertain how frequent this becomes in practice. We will also be looking out for relevant published guidance once this comes online.
Validity and refusal
Certain refusal reasons are now also to be treated as validity requirements. In simple terms, this means that an application refused for these reasons will not now trigger statutory protections on the applicant’s grant of leave. Instead, the applicant may become an overstayer, and become subject to adverse immigration consequences. Applicants will now need a valid Certificate of Sponsorship at the moment of application, otherwise they will be liable to be refused on validity grounds.
English language requirements are also changing, and becoming looser. Holders of GCSEs (or devolved national equivalent) are now accepted as meeting English language requirements. Maltese applicants, and those with a degree from the Republic of Ireland, will now also benefit from assumptions of majority English language exemptions.
Finally, maintenance requirements have been renamed to “financial requirements”. In good news for those already in the country, there will be a full exemption from financial requirements where the applicant is applying for leave to remain and has been in the UK with permission for 12 months or longer at the time of application.
This information is necessarily of a general nature and doesn’t constitute legal advice. This is not a substitute for formal legal advice, given in the context of full information under an engagement with Bates Wells.
All content on this page is correct as of October 30, 2020.