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The Home Office has published its latest Statement of Changes to the Immigration Rules, most of which will take effect from 12 April this year. The key changes of interest to employers are likely to be these:
- Minimum salary thresholds for sponsored worker visas are being updated based on the latest available UK salary data including:
- under the Skilled Worker route, the salary threshold is increasing from £25,600 to £26,200 per annum; and
- under the Global Business Mobility Senior or Specialist Worker route (formerly Intra-Company Transfer), the annual salary threshold is increasing from £42,400 to £45,800.
These thresholds are subject to an additional minimum “going-rate” specified in the relevant occupational (SOC) code for the role in question. Many of these going-rates are being increased and, importantly, will be based on a 37.5 hour week (instead of the current 39 hours). This means that sponsors will need to carry out a pro-rata calculation of the going-rate for any sponsored workers who will work in excess of 37.5 hours per week. Care should be taken to ensure that the correct salary, meeting both the new general and going-rate thresholds, is stated in any Certificate of Sponsorship assigned from 12 April, as an insufficient salary will lead to the worker’s visa application being refused. Helpfully, the new rules also provide some clarity on minimum salaries for those whose working hours vary from one week to the next, allowing the sponsor to calculate average hours over a period of up to 17 weeks (providing the average is not more than 48 hours per week) and to take into account unpaid rest weeks.
- The Home Office is phasing in an Electronic Travel Authorisation (ETA) scheme to ensure that those seeking entry to the UK have prior permission to do so. The ETA scheme will apply to third country nationals (i.e. not British or Irish) visiting or transiting through the UK who are not currently required to obtain a UK visa for short stays, as well as those using the Creative Worker route for a short stay. The ETA scheme will apply to Qatar nationals from 15 November 2023 and to nationals of Bahrain, Jordan, Kuwait, Oman, Saudi Arabia and United Arab Emirates from 15 February next year. We understand that further countries will be added to the scheme over time but that Irish residents who do not require a visa to enter the UK will not be required to apply for ETA. Similar to applying for an ESTA when travelling to the US, ETA applications will be made online, issued electronically, linked to the individual’s passport and valid for two years or until the expiry of their passport if earlier.
- The Youth Mobility Scheme currently allows eligible applicants between the ages of 18 and 30 from countries including Australia, Canada, Monaco, New Zealand, San Marino, Iceland, Hong Kong, Japan, South Korea, Taiwan as well as British overseas citizens, British overseas territories citizens and British nationals (overseas) to work in the UK for up to 2 years. Under the new rules, from 29 June 2023 and for New Zealand nationals only, the age range is being extended up to 35 and the initial 2 year visa can be extended for a further year from within the UK.
- The Innovator route will be renamed “Innovator Founder” and the minimum investment funds requirement of £50,000 will be removed to make it more accessible to those with a genuine proposal to establish an innovative business in the UK. The most relevant change under this route for employers is that Innovator Founders will now be able to take employment outside the running of their own business (unlike current Innovator visa holders) provided their secondary employment is skilled to at least RQF Level 3 (A level or above). Notwithstanding these changes, Innovator Founders will still be required to show that their business or business idea is innovative, viable and scalable by means of a detailed business plan (meeting specific criteria set out in the Immigration Rules) and that it has been formally endorsed by a Home Office approved endorsing body. On applying to extend or for settlement following their initial 3-year visa, amongst other things, Innovator Founders will need to demonstrate by means of further endorsement from their endorsing body, that the business is active, trading and sustainable and demonstrates significant achievements against the business plan (again, meeting specific criteria), and that they are active in the day-to-day management and development of the business.
- Changes are being made to some of the endorsement criteria and evidential requirements for the Global Talent visa to reflect feedback and recommendations from the endorsing bodies for the route, and to clarify the consideration process for applications, presumably to make the route more accessible and increase uptake.
In addition to changes to the Immigration Rules, the Home Office has recently updated its Employer’s Guide to Right to Work Checks. The key change provides clarification for employers using the services of Identity Service Providers (IDSPs) to carry out digital identity verification of holders of valid British or Irish passports (including Irish passport cards). Some employers will have encountered IDSPs which offer to carry out manual checks of physical documents, or checks via the Home Office’s online right-to-work checking service (where the employee provides a digital share code to confirm their status). The Home Office guidance now expressly warns against the use of IDSPs for this purpose:
… other than where you use an IDSP expressly for right to work checks of British or Irish citizens with a valid passport (or Irish passport card), it is not possible to establish a statutory excuse against liability for a civil penalty if the manual document-based check, or online service right to work check, is performed by an IDSP.
The Home Office has also clarified provisions relating to restrictions on student visa holders. In addition to the limit of 10 or 20 working hours per week during term time, it is less widely known that students visa holders are not permitted to fill a permanent full-time vacancy unless they are applying to switch into the Skilled Worker route (no earlier than 3 months before completion of their course) or the Graduate visa route. Although this is not a new rule, it is often overlooked by employers and causes considerable confusion. Whilst student visa holders are permitted to fill permanent vacancies on a part-time basis, allowing them to work full time in such roles including during vacations and on completion of their studies (unless they have a pending Skilled Worker or Graduate visa route) could lead to a civil penalty for the employer of up to £20,000 per employee in breach. Employing student visa holders on fixed term or temporary contracts does not resolve the issue unless the role is genuinely temporary or fixed-term in nature – were the Home Office to investigate whether or not a role is permanent, it is likely to look beyond the contract itself and assess whether the role would still need to be filled once the contract has ended. Employers should therefore carry out an assessment of the type of roles being held by student visa holders and the hours worked to ensure they remain compliant with their right to work obligations.
If you have any questions relating to UK visa applications, right to work checks or other immigration matters, please contact your usual Squire Patton Boggs business immigration team member or Annabel Mace, partner and Head of UK Immigration
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