Home Office publishes Immigration Rules for the new UK immigration system

HC 813 contains 514 pages of detail, however only some of it is aimed at creating new criteria for entry and stay in the UK.

It will be possible to make applications under the new Rules from 9 am on 1 December 2020 in most cases, so we anticipate that guidance on how to do this will be published in the very near future.

EEA nationals will not be able to apply in-country under the Rules until 11 pm on 31 December 2020, unless they are applying under the EU Settlement Scheme as an S2 healthcare visitor or a service provider from Switzerland. Those who apply for entry clearance (other than under the same categories) will have this granted from 1 January 2021 at the earliest.

General changes

These include:

• In-country switching will be allowed from most immigration categories other than visitor, short-term student, parent of a child student, seasonal worker, domestic worker or a person with leave outside the Immigration Rules – a notable exception being that it will not be possible to switch into the UK ancestry route

• Expanded application validity requirements, which we comment on in this article

• Re-named and restructured appendices for cross-cutting topics including the Academic Technology Approval Scheme requirement, English language requirements for limited stay, the Knowledge of Language and Life requirement for settlement, meeting financial requirements for limited stay and the continuous residence requirement for settlement in work and business categories

Skilled Worker route

This category will replace Tier 2 (General) and is for individuals coming to the UK to work in a skilled job with a licenced sponsor.

We have previously analysed the main features of the Skilled Worker route here, however the statement also confirms that no cooling off periods will apply to the route, and there will be no six-year total length of stay.

Controversially, no changes have been made to the shortage occupations that will be accepted initially under the Skilled Worker route, other than the removal of quantity surveyors, which was previously included in error. This means that skilled chefs will still be recognised as a shortage occupation initially despite the Migration Advisory Committee (MAC) recommending their removal, but that all of the other occupations recommended for inclusion will not be reflected at the time the route launches. We have commented on the MAC’s recommendations here.

The reason given by the Home Office for taking this approach is that it wishes to assess how the labour market develops following the pandemic, and in response to the new system being introduced. It seems more likely however that there has simply been insufficient time to properly consider and implement the recommendations in the MAC’s report. It is foreseeable that there will be calls for the shortage occupation list to be revised swiftly to limit the negative impact that delay may have on resourcing, particularly in the health and social care sector.

Intra-Company Transfer routes

The main intra-company transfer provisions for established workers being transferred from their employer abroad to work at a related business in the UK, as well as for graduate trainees are both preserved.

Substantive changes include:

• Amendment to the 12-month cooling off requirement so that it will only apply to those who have already held leave under the route for five years in any six-year rolling period, or nine years in any ten-year rolling period for high earners with a high earner salary of at least £73,900

• There will only be one high earner salary of £73,900 for this route, which will enable the individual to access the cooling off provision mentioned above, and also will exempt them from having to be employed abroad for at least 12 months before their application to transfer to the UK

• Relaxed switching requirements, except that it will still be necessary for an applicant to have the relevant 12 months experience abroad (or three months for graduate trainees) unless the applicant is a high earner

The Intra-Company Transfer routes will be subject to a review by the MAC in 2021, with the MAC’s report due by the end of October 2021. Further reform of these routes is therefore expected at the end of 2021 or early 2022. Our commentary on the review is here.

Visitors

The Rules for visitors will be simplified. The changes to the route are modest, and it remains to be seen if the route will be further reformed in the medium-term to better facilitate business travel following the end of the transition period.

Changes include:

• Allowing Standard visitors to study at an accredited institution for up to six months

• Making a correction to state that drivers on international routes may collect as well as deliver goods and passengers

• Removing the requirement for volunteering to be ‘incidental’ to the main purpose of the visit

• Allowing academic visitors who are experts in their field to extend their stay in the UK to a total of 12 months

New extension route for Turkish workers and businesspersons

This route will become available from 11 pm on 31 December 2020 under a new Appendix ECAA Extension of Stay. The aim of this appendix is to enable Turkish workers, businesspersons and their existing family members to proceed to settlement on the broadly the same criteria as currently, with the exception that domestic criminality thresholds will apply for considering conduct taking place after the end of the transition period.

New immigration route for British Nationals (Overseas) and their family members

The new route will launch from 31 January 2021. New fee regulations also laid on 22 October 2020 confirm that the application fee for each main applicant and dependant will be £180 for a 30-month visa and £250 for a five-year visa.

Unchanged categories

Categories that have been simplified but are not intended to contain changes to immigration policy include:

• Tier 2 Minister of Religion

• Tier 2 Sportsperson

• UK ancestry

• The Tier 5 Temporary Worker routes for seasonal workers, youth mobility, religious workers, charity workers, creative and sporting workers, and those coming to work in the UK under international agreements or government authorised exchange schemes

• Start-up

• Innovator

Expedited sponsor licence processing

In a separate announcement, the Home Office has confirmed it will be introducing a new £500 fee from 12 November 2020 for the priority processing of sponsor licence applications.

We will continue to provide updates on the roll-out of the new system as further details become available. There are still places available on our Immigration Law Academy on 23 and 24 November, and we are also able to offer tailored advice and training on the new system through our Immigration Solutions for HR. Please contact a member of our Immigration Team for further information.