Immigration Rules updated with effect from July and August 2023

This article summarises some of the changes in HC 1496 that are most likely to be of interest to employers.

Student-related changes

Significant reforms have been made on switching from Student into work routes in-country, and on Students being accompanied by dependants.

Students switching into work routes (including as a dependant)

With effect from 15:00 BST on 17 July 2023, Students are only allowed to switch into work routes (including but not limited to the Skilled Worker, Global Business Mobility, Global Talent, Scale-up, Government Authorised Exchange and Creative Worker routes) if one of the following applies:

• The Student has completed the course of study they are sponsored for; or
• The Student is studying a degree level or higher course and their Certificate of Sponsorship shows a start date no earlier than their course completion date; or
• The Student is studying a PhD and their Certificate of Sponsorship (CoS) shows a start date no earlier than 24 months after the start of the PhD course.

Students must also meet similar requirements if they wish to switch into being a dependent partner of someone already on a work route. This change appears to recognise that the already very restrictive Rules on student dependants mean that some partners may come to the UK on separate Student visas. It is now more logistically difficult for such partners to transition into a work route in-country if either of them has not completed their course. A partner who defers becoming a dependant in a work route that leads to settlement will have their eligibility for settlement delayed, however they will have to weigh this up against the disruption and cost of obtaining fresh entry clearance.

On the question of how to evidence course completion, updated sponsor guidance simply states that the sponsor must ‘carefully check’ if a proposed applicant is eligible to switch in-country. However, updated caseworker guidance suggests that the submission of a results transcript or letter from the institution confirming course completion should clarify the position if the caseworker is unsure whether the switching criteria are met. For PhD students, caseworkers will use the course start date listed on their Confirmation of Acceptance for Studies to check whether there is at least 24 months between the start of the course and the start date stated on the CoS.

The practical impact of the switching restrictions for work route sponsors is that they will either need to defer an affected applicant’s start date until they can meet one of the three conditions above, or make arrangements for the applicant to depart the UK and apply for fresh entry clearance. Students who are eligible to become a partner dependant of a person on a work route but are ineligible to switch would also need to make a fresh entry clearance application.

The Home Office does have discretion to waive switching criteria outside the Rules, however this is normally reserved for exceptional circumstances.

The Student switching policy is stated to be aimed at reducing net migration. Certainly the cost and inconvenience of international travel and the requirement to obtain a defined CoS for Skilled Worker applicants may have some effect, particularly when combined with the recently announced immigration fee rises. However, a previous Home Office review has found that demand for immigration to the UK is inelastic when cost rises.

The policy also creates otherwise-unnecessary international travel for applicants who opt to go abroad to apply for entry clearance, so its appropriateness may also be questioned on environmental grounds.

New restrictions on Student dependants

For students on postgraduate courses starting from 1 January 2024 (and subject to exceptions for government-sponsored Students and children born in the UK), dependants will only be allowed if the Student is on a PhD or other doctoral course, or is a post-graduate course confirmed by the sponsor as being a research-based higher degree.

A definition of ‘research-based higher degree’ has been added to the Immigration Rules, and means ‘a postgraduate programme comprising a research component (including a requirement to produce original work) that is larger than any accompanying taught component when measured by student effort’. What this means in practice is that taught Masters students will no longer be eligible to be accompanied by dependants.

These changes have been incorporated into the Immigration Rules from 15:00 on 17 July 2023, but will only affect the dependants of students whose course starts on or after 1 January 2024.

Note that partners and minor children who are excluded from eligibility as dependants under the Student route will also be ineligible to apply as dependants under the Graduate route. This, combined with the effect of the planned application fee increases may mean that more Students will push for sponsorship under the Skilled Worker route directly after their studies.

Timing of Student-related changes

Immigration Rule changes are normally published at least 21 days before they are implemented. Although the changes to student switching were made with immediate effect to prevent a surge of applications, it was originally announced on 23 May 2023. The change restricting the eligibility of Student dependants was included in the same announcement. The Government’s view is that the announcement provided sufficient advance warning.

Skilled Worker

Additions to shortage occupation list

An expansion of the Shortage Occupation List (SOL) has been made, covering immigration applications submitted on or after 7 August 2023.

The following construction industry occupations are added to the list:

• 5312 Bricklayers and masons
• 5313 Roofers, roof tilers and slaters
• 5315 Carpenters and joiners
• 5319 Construction and building trades not elsewhere classified
• 5321 Plasterers (including classifying dryliners as plasterers, enabling them to be eligible for sponsorship)

Two fishing industry occupations are also added:

• 5119 Agriculture and fishing trades not elsewhere classified – fishing industry jobs only
• 9119 Fishing and other elementary agriculture occupations not elsewhere classified – deckhands only, working on fishing vessels nine metres long or more, and where the job requires at least three years’ full-time experience as a deckhand, and the experience must have been gained while working lawfully

The Migration Advisory Committee (MAC) is currently undertaking a full review of the SOL and anticipates publishing its report in Autumn 2023. The Home Office will then consider the MAC’s recommendations, with updates to the SOL likely to be made in Autumn 2023 or Spring 2024.

Longer immigration permission for GPs for speciality training

GPs for speciality training will be granted immigration permission expiring four months after the end date of their Certificate of Sponsorship, to enable them time to obtain further immigration permission as a GP with a licenced sponsor.

EU Settlement Scheme

Various changes to the EUSS are in effect from 9 August 2023. The two changes of most interest to employers are outlined below.

Automatic extension of pre-settled status

Provision is made to allow pre-settled status to be extended automatically without the need for a valid application. This change is intended to be the first step in implementing findings of the successful legal challenge mounted by the Independent Monitoring Authority.

The new Immigration Rule simply states that the pre-settled status of an individual may be extended, regardless of whether the person has made a valid application to the Home Office for it.

A press release issued by the Home Office provides further detail, confirming that an automatic two-year extension will be granted to individuals with pre-settled status who have not applied for settled status. They will be notified of the extension directly and their digital status will be updated. Amongst other things, this means they will be able to prove their status to an employer using an online right to work check.

There is no confirmation in the press release about whether a visa national who holds pre-settled status as a family member of an EEA/Swiss national will automatically receive a new physical Biometric Residence Card confirming their extended permission. They may have to apply for one to be able to continue to prove their immigration permission to an airline or other carrier when travelling to the UK.

Although this is not yet provided for in the Rules, the press release confirms that the Home Office intends to put a process in place to automatically convert pre-settled status holders to settled status if they are eligible for it. The Home Office states that safeguards will be in place to prevent grants to individuals who are not eligible, which flags that an appropriate process has not been finalised yet.

The proposed settlement conversion process will use automated checks. Presumably these will include checks on HMRC and DWP records, as well as Passenger Name Record data to identify instances of international travel. This raises a question around what the consequences will be for individuals who are assessed to have broken the continuity of their residence in the UK and are therefore not eligible for settled status.

The Home Office’s position on this is not yet known and may have an impact on employers. If an affected individual will be required to regularise their status under another route or leave the UK, then employers may be approached for sponsorship or other assistance, or may need to consider recruiting a replacement worker.

Grounds for making a late application to be assessed at validation stage

Whether an applicant under the EUSS has reasonable grounds for making a late application will become an application validity requirement rather than eligibility requirement. This will mean that some applications will not proceed to full assessment if the grounds for making a late application are not accepted. A potential impact of this for employers is that where an existing employee has an EUSS application assessed as invalid, they may need to apply for alternative immigration permissionor leave the UK. Depending on the circumstances, they may not have permission to work while an alternative application is considered.

If you have any queries about these developments, please get in touch with a member of our Immigration Team.