Changes in the point based UK immigration system

THE NEW STATEMENT OF CHANGES AND ITS IMPACT ON THE NEW POINTS BASED SYSTEM

On November 20, 2020 | In General | By A Y & J Solicitors

As predicted, Brexit has brought with itself the end of freedom of movement. The Home Office has recently released a Statement of Changes to announce the implementation of the new Points-Based System and several other new Immigration routes. Save from the few exceptions, the new Immigration Rules will take effect from 01 December 2020 at 9 am.

Skilled Worker Route

The long-awaited reform of Tier 2 (General) route will be replaced by the newly created Skilled Worker Route from 01 December 2020. As before, this route allows eligible UK companies to sponsor any non-settled migrants to come and work in the UK for specific job roles if they are unable to identify any British Citizen or settled persons to fill these positions.

The Home Office is now inviting companies to submit their applications to become licenced sponsors in order to hire migrant workers in the post-Brexit UK if they foresee the need to sponsor anyone in the future. In the current situation, with the end of freedom of movement announced by the Secretary of State earlier this week, this is particularly time-sensitive and important for UK businesses as the Skilled Worker Route will be the only way EEA nationals and their family members can work in the UK if they fail to meet the deadline under the EEA Settlement Scheme. 

We anticipate that there will be a surge of licence applications from December 2020 onwards and advise any UK businesses who may require to hire migrant workers to submit their licence as soon as they can to avoid delays. More information on sponsor licences can be found here. 

Advertising the Job Role

Previously, unless exemptions apply, companies are required to conduct a Resident Labour Market Test, whereby the position is advertised on 2 different sources in a Home Office specified format before the job role can be offered to a migrant worker. 

This has inevitably caused delays in numerous applications when companies are required to re-advertise their positions simply because it was not posted in the specified format. The new Immigration Rules have now abolished the mandatory requirement to advertise the positions so long as the positions are genuine and not created solely for the purposes of sponsorship, which eliminates the month-long delay and results in a much more straightforward process for both licence applications and future sponsorship.

Points Available Under the Skilled Worker Route:

Under the new Points-Based System, migrant workers need to attain a minimum of 70 points with 50 points being mandatory, in order to be eligible for this route. The points are awarded as follows:

Mandatory RequirementsPoints
Sponsorship20
Job at an appropriate skill level20
English language skills at level B110

 

As anticipated, the Home Office has extended the qualifying job roles from RQF Level 6 to RQF Level 4, which opened up a lot more opportunities for overseas talent to which the UK was inaccessible previously.

The mandatory points are essentially the same as requirements under the current Tier 2 (General) route. This means that at the time of your visa application, your employer/ sponsor has assigned a valid Certificate of Sponsorship for a job role that is at least RQF Level 4 or above (as opposed to RQF Level 6 under the current rules).

At the time of writing, the full list of job roles is only available on the Statement of Changes. For a full list of qualifying job roles, please visit Appendix Skilled Occupation List of the Immigration Rules in December 2020. 

The minimum level of English proficiency continues to be level B1 or above unless you are the national of a majority English speaking country; or have a Bachelor’s or Master’s degree or a PhD from a UK university, or have a Bachelor’s or Master’s degree or a PhD which was taught in English.

However, the newly introduced Appendix English Language stipulates that applicants under this route are only required to prove their knowledge of English language once and may even rely on their GCSE or A-Level results in either English Language or English Literature if these qualifications were obtained from a UK school while you are under the age of 18.

It is also worth noting that Malta is now also being considered as a majority English speaking country for the purposes of immigration applications in the UK. 

The remaining 20 points can be obtained by any of the following:

Option Tradeable PointsPoints
AThe applicant’s salary equals or exceeds both: • £25,600 per year; and20
• the going rate for the occupation code.
BEducational qualification:20
• PhD in a subject relevant to the job;
and
The applicant’s salary equals or exceeds both:
• £23,040 per year; and
• 90% of the going rate for the occupation code.
CEducational qualification:20
• PhD in a STEM subject relevant to the job; and
The applicant’s salary equals or exceeds both: • £20,480 per year; and
• 80% of the going rate for the occupation code.
DJob in a shortage occupation;20
and
The applicant’s salary equals or exceeds both: • £20,480 per year; and
• 80% of the going rate for the occupation code.
EThe applicant is a new entrant to the labour market;20
and
Their salary equals or exceeds both:
• £20,480 per year; and
• 70% of the going rate for the occupation code.
(no definition of the new entrant)
FJob in a listed health or education occupation and20
The applicant’s salary equals or exceeds both: • £20,480 per year; and
• The going rate for the occupation code.
An applicant with a job in a listed health or education occupation can only be awarded tradeable points within this option.

Depending on the type of job offered, the applicants will be subjected to the different salary requirements for which the final 20 points can be awarded. 

Time Limit and Indefinite Leave to Remain

As you may be aware, migrants under the Tier 2 (General) route are only permitted to remain in the UK in this capacity for a maximum period of 6 years with the option to settle in the UK after 5 years provided the requirements for indefinite leave to remain are met.

Those who are not able to meet the requirements for indefinite leave to remain will either be required to leave the UK and thus trigger a 12-month cooling-off period or switch to different immigration rules. 

Quite often, Tier 2 migrants find themselves in a difficult position. They are almost to their 6th year in the UK and are failing to meet the requirements for settlement because of business-related absences. Under the new system, we are happy to see that the Home Office has removed the 6 years’ limit and the cooling-off period for migrants under the Skilled Worker Route, which means that if you cannot meet the absences requirement for whatever reason, you may continue to extend your leave in the UK. 

If you are a UK business who is interested in applying for a sponsor licence or an individual who is looking to enter the UK or switch to the Skilled Worker route in December, please do not hesitate to contact us for further advice. 

Appendix Global Talent Visa

For the second time in 12 months, changes will be implemented to the current Global Talent visa route. From 1 December 2020, those in the field of science, engineering, humanities, medicine, digital technology or arts and culture who can show they have exceptional talent or exceptional promise will be applying for a visa application under the Appendix Global Talent.  

Like its predecessor, the “updated” route, Global Talent is a two-part application process. The first part is an application for endorsement (guidance on the relevant evidence and its format is set out from time to time by the Secretary of State on gov.uk/global talent); the second part is an application for entry clearance or permission to stay. A person can make the application for endorsement before making the application for permission, or they can make both applications at the same time. A dependent partner and dependent children can apply under this route. 

The updated Global Talent will remain a route to settlement.

Tech Nation continues to remain the endorsing body for talent under the field of Digital Technology.  Significant changes are made to the criteria needed by Applicants for a Digital Technology endorsement.  Unlike the old Global Talent Route where an Applicant was required to meet 1 Key criterion out of 2, and 2 Qualifying Criteria out of 4 these seem to have been replaced with the following: 

  1. An applicant exhibiting exceptional talent must: 
    1. show that they have been recognised as a leading talent in the digital technology sector; and 
    2. provide evidence of 2 of the following: 
      1. a proven track record for innovation as a founder or senior executive of a product-led digital technology company or as an employee working on a new digital field or concept; or 
      2. proof of recognition for work beyond the applicant’s occupation that contributes to the advancement of the field; or
      3.  they have made significant technical, commercial or entrepreneurial contributions to the field as a founder, senior executive or employee of a product-led digital technology company; or 
      4. they have demonstrated exceptional ability in the field by academic contributions, through research published or endorsed by an expert.
  2.  An applicant displaying exceptional promise must: 
    1. show they have been recognised as having the potential to be a leading talent in the digital technology field; and 
    2. provide evidence of at least 2 of the following: 
      1. at least 2 examples of innovation as a founder of a product-led digital technology company or as an employee working on a new digital field or concept; or 
      2. proof of recognition for work beyond the applicant’s occupation that contributes to the advancement of the field; or 
      3. they have made significant technical, commercial, or entrepreneurial contributions to the field as a founder or employee of a product-led digital technology company; or 
      4. at least 2 examples of exceptional ability in the field by academic contributions, or through research endorsed by an expert.

An applicant must provide evidence of any commercially successful and established businesses, share ownership or businesses dissolved in the last 5 years where the applicant has been a founder or senior executive.

The new Appendix Global Talent does not make references to the Key and Qualifying Criteria, hence looking at the above the evidence required remains almost the same.  In addition to the above, a CV with career and publication history included will be required along with 3 dated letters of recommendation from 3 different well-established organisations acknowledged as experts in the digital technology field. Important: The continuous learning evidence is being replaced with Mentoring which was one of the key criteria in the old rules.  

Moving to stage 2 of the application process, Applicants will require a total of 70 points. 

THE BRITISH NATIONAL OVERSEAS (BN(O)) Visa

Earlier this year, the Foreign Secretary announced the creation of a new visa category to allow BN(O) holders and their dependants to reside and work in the UK with a view of the settlement. More details on this visa have now been published in Appendix Hong Kong British National (Overseas), taking effect from 31 January 2021.

The newly created visa category offers 2 routes, BN(O) Status Holder route and BN(O) Household Member route, both of which lead to a permanent settlement after a period of 5 years with continuous residency. 

BN(O) Status Holder Route

The BN(O) Status Holder Route allows those who registered as British National (Overseas) prior to the transfer of sovereignty in 1997 to apply as the main applicants to come to the UK. As usual, the spouse and minor children of the BNO holder will also be eligible to apply as the dependants of the main applicant provided they can evidence their relationship.

In addition to minor children, this route also allows dependent grandchildren to apply as dependents with the caveat that they must apply at the same time with the BNO status holder and form the same household on the date of their application. With this in mind, it is important to note that where minor children are included in the application, both parents must be applying at the same time unless the parent can evidence sole responsibility for the children, any other exceptional compelling reasons or is the sole surviving parent. 

BN(O) Household Member Route

For children above the age of 18 or born on or after 1 July 1997, the route allows them to apply to enter the UK at the same time as their parents, the BNO holder(s), provided they form a part of the same household at the time of application.     

The Home Office has not published any specified documents required to demonstrate the adult children being a household member of the BNO holder. It is therefore assumed that they will be considered as being from the same household if they normally live together, which may be demonstrated by bank statements, utility bills or any other official correspondence. 

In addition to this, any Household Member can also sponsor their spouse and minor children to come to the UK so that families are not separated. Again, the dependent spouse will be subject to the relationship requirement whereby the Home Office must be satisfied that their relationship must be genuine and subsisting, any minor children should have their applications submitted at the same time as both parents unless under unavoidable circumstances. 

Requirements

Once it is established that the above relationship requirements are met, the main applicants will be subject to the following requirements: 

1. Adequate Maintenance and Accommodation

Unless the applicants have been in the UK for 12 months or more, they must be able to demonstrate that they have the means to adequately maintain and accommodate themselves without recourse to public funds in the UK. 

This is defined in the Immigration Rules as:

‘…after income tax, national insurance contributions and housing costs have been deducted, there must be available to the family the level of income that would be available to them if the family was in receipt of income support.’

Details of the current income support rates can be found on the government website here.

2. English Language

Unlike other immigration routes, there is no requirement for applicants for leave to enter or remain in the UK under the BNO route to meet the English language requirement. 

However, if the aim is to apply for settlement and citizenship, applicants over the age of 18 will eventually be required to demonstrate their English proficiency is at least Level B1 or above. 

3. Ordinary Residence 

Those who are applying to enter or remain in the UK under this route must be either an ordinarily resident in Hong Kong or the UK at the time of application, regardless of the duration of their residence in the respective country prior to this. 

The meaning of ‘ordinary residence’ has not been defined in the Immigration Rules, however, the Home Office has provided a non-exhaustive list of documents where this can be demonstrated. These include a Hong Kong national identity card, a Hong Kong medical card, a letter from an employer or education provider confirming the applicant’s employment or enrolment, a voter’s card, a residence permit, tax records, household bills etc.

4. Tuberculosis Screening 

Applicants who have been present in countries listed in Appendix T of the Immigration Rules for a period of 6 months or more are required to undertake a tuberculosis screening prior to the submission of their applications.

Similarly, those who are already in the UK with valid leave for 6 months or less and have been present in countries listed in Appendix T will need to undertake a tuberculosis screening at an approved clinic in the UK prior to the submission of their permission to stay application.

Entering the UK before 31 January 2021

If, however, you are looking to come to the UK before 31 January 2021, BNO holders and their family members may be eligible to apply for leave outside the rules at the border.

To apply for this, the applicant must be an ordinary resident in Hong Kong prior to coming to the UK, which again can be evidenced by their Hong Kong national identity card or utility bills. Upon the successful application, the applicants will be granted leave to enter the UK for a period of 6 months, allowing them to be working and studying and switch to the BNO route from 31 January 2020. 

A Y & J Solicitors is a multi-award winning UK Immigration law firm with a decade of experience recommended by Legal 500 based in Central London. Get in touch with our qualified solicitors to help in reinstating your sponsor licence. For further information about our immigration service, please email us at [email protected] or Whatsapp us / call on +44 7448 5656 70.

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