Migration Advisory Committee commissioned to report on Intra-Company Transfers

The commission provides further confirmation from the Home Office that initially, the provisions for ICT workers should be broadly unchanged under the new immigration system when it launches from 1 January 2021. This is likely to be due to a lack of time and resource at the Home Office and MAC to be able to reform and launch both routes simultaneously rather than a view that the current structure of the ICT route remains fit for purpose.

What factors should employers take into consideration when thinking about using the ICT route in 2021?

Initially, although the new ICT route will continue to allow businesses with international operations to temporarily transfer existing senior or specialist employees to a group business in the UK, it will become less attractive than the new Skilled Worker visa for the following reasons:

• One of the current main advantages of the ICT route, ie no requirement to conduct resident labour market testing, will fall away as this will not be a feature of Skilled Worker applications

• Applicants under the ICT route will still need to be filling jobs at bachelor degree equivalent level or higher, rather than at A-level equivalent or higher for the Skilled Worker route

• The general minimum salary threshold of £41,500 for skilled workers under the ICT route will be higher than for the Skilled Worker route (which will be between £20,480 and £25,600)

• The general minimum salary threshold of £23,000 for graduate trainees under the ICT route will in some cases be higher than for the Skilled Worker route

• Applicants under both ICT and Skilled Worker will also need to meet the going rate for their occupation if this is higher than the general minimum salary threshold, however under Skilled Worker the going rate can be discounted for shortage occupations, holding relevant PhD qualifications, certain health or education occupations and new entrants to the labour market, whereas under ICT it cannot

• The ICT route does not lead to settlement, whereas Skilled Worker does

• The Home Office has indicated in recent stakeholder presentations that there will be no cooling off period for the Skilled Worker route, whereas this is expected to be retained for the ICT route

The ICT route may be the preferred or only option in following situations:

• Where the applicant cannot meet the English language requirement for Skilled Worker

• Where the applicant’s remuneration will include guaranteed allowances such that their overall remuneration package will meet the salary requirements for ICT, but their basic salary without allowances will not meet the salary requirements for Skilled Worker

• For some graduate trainees whose salary will not meet the requirements for Skilled Worker, up to a maximum of 20 per sponsor per financial year

What is the scope of the MAC’s commission regarding ICTs?

The Home Secretary has asked the MAC to consider each of the following points:

• The salary threshold for entry to the ICT route

• What elements, if any, beyond base salary should count towards meeting the salary requirements

• Whether different arrangements should apply to the very highly paid

• What the skills threshold for the route should be

• The conditions of the route, in particular those where it differs from the Skilled Worker route

As part of its consideration, the MAC has been asked to ensure that the commitments made to the Mode 4 provisions of free trade agreements concerning ICTs are fully implemented under the Immigration Rules.

What has the MAC been asked to consider beyond ICTs?

The Home Secretary has confirmed an intention to expand the provisions for overseas businesses to allow them to transfer a team of workers to the UK to establish a UK branch or subsidiary (currently they can only transfer one senior executive), and to send teams to the UK to work on a high value goods or services contract. The MAC has been asked to make recommendations on the eligibility criteria for the workers and for the sending organisation.

What will the MAC’s approach be for working on this commission?

In accepting the commission, Chair of the MAC, Brian Bell, notes that as the ICT category is used by a limited number of companies, the MAC’s approach to engaging with stakeholders may be in a slightly different format than usual. There will still be a Call for Evidence (CfE) and a series of engagement events with key stakeholders, due to start in early 2021. Employers with offices in the EEA who have not previously needed to use the UK immigration system may wish to ensure they respond to the CfE or contact the MAC directly to ask to be included in stakeholder engagement events.

We will be providing an overview of the key elements of the new immigration system at our Immigration Law Academy on 23 and 24 November. If you have any specific queries about the new system or the MAC ICT commission, please get in touch with a member of the immigration team.