New Immigration Rules for students give employers an insight into what's to come for workers

Statement of Changes in Immigration Rules HC 707 introduces new Student and Child Student routes. These come into effect at 9 am on 5 October 2020 for non-EEA nationals and EEA nationals making applications from abroad, although EEA nationals will have their entry clearance issued starting from 1 January 2021 at the earliest.

EEA nationals who are already in the UK will not be able to apply until 1 January 2021. This is because EEA nationals who arrive in the UK before 11 pm on 31 December 2020 will still be covered by the Brexit transition period and will be eligible to apply under the EU Settlement Scheme. Those who come to the UK as a visitor will not be allowed to switch their immigration status to a student route in-country. They will have to depart the UK and apply for entry clearance.

Benefits of the new Rules for international students and employers

Under the new Rules there will no longer be an eight-year time limit on postgraduate studies. This means employers will have a greater chance of being able to hire more highly skilled workers in the UK after they have completed their full programme of studies.

When combined with the proposed two-year graduate visa, international students will now have a clearer route to settlement following ten years’ continuous residence in the UK, which means a lower proportion will require sponsorship by an employer. This will provide some administrative and cost savings.

Due to the promised abolition of the resident labour market test under the new Skilled Worker route (which will replace Tier 2 (General)), it will be a more streamlined process to sponsor an international student in circumstances where they have not completed their course in the UK (or have not completed at least 12 months of their course in the case of PhD students).

In some cases, international students may be considered ‘new entrants’ to the labour market, and so may be paid a minimum of 70 percent of the relevant going rate for the occupation they are sponsored to fill as Skilled Worker. This will enable sponsorship to be possible a pay level that is in line with market expectations for those who are at the beginning of their career.

Tips for employers intending to sponsor workers under the new system

The new Rules for students provide some clues about how some aspects of the PBIS will work for employers, and therefore what they need to be on top of. 

Tip 1: Review immigration and nationality considerations for EEA nationals and their family members as soon as possible

The general position is that the EU Settlement Scheme is a much cheaper, more flexible option for EEA nationals and their family members. Entering the UK by 31 December 2020 and applying under this route rather than entering next year under the UK’s domestic immigration system will in most cases be advantageous both for individuals and employers.

Employers should therefore consider bringing start dates forward into 2020, or ensure EEA nationals at least enter the UK by 31 December 2020 so that they and their family members are eligible to apply under EUSS. Potential travel disruptions and self-isolation requirements due to COVID-19 should be factored into the planning process.

Eligibility to apply under EUSS should be considered both for people who intend to be based permanently in the UK, and those who intend to spend significant time here in the foreseeable future, eg senior executives, other employees or contractors who need to undertake frequent business travel or productive work in the UK.

The necessity and timing of EUSS applications, citizenship applications and British passport applications should also be considered, taking into account the following:

• Naturalisation applications for people with a permanent residence document can be submitted 12 months after the date the Home Office has recognised on the permanent residence approval letter, however the Home Office has recently confirmed that individuals who have a permanent residence document will not be able to apply for naturalisation based on this after 31 December 2020 if they have also been granted settled status under EUSS. They must wait until at least 12 months has elapsed since they were granted settled status. Naturalisation applicants also must build in time to prepare for and pass the Life in the UK Test;

• Individuals who have a British citizenship application pending on 30 June 2021 (the main in-country deadline for applications under EUSS) must make an application under the EUSS by 30 June 2020, otherwise they will be considered to be an overstayer; and

• Some EEA national children born in the UK may be British by birth, and should therefore not make an application under EUSS. Instead, they should consider making a British passport application to evidence their British nationality and facilitate their travel to and from the UK after the end of the transition period.

Tip 2: Be ready for new terminology, cross-referencing headaches and teething problems

The Rules have been drafted in a new style, following on from the report the Law Commission published this January on simplifying the Immigration Rules. Although the finished product may be simpler overall, in the interim there will be a need for extensive cross-referencing, bringing with it potential for confusion. The old Immigration Rules will be replaced by new ones on a phased basis, and the Rules still need to be workable overall in the meantime.

The new routes for students and workers will mainly be under the Points Based Immigration System (PBIS), which is how the Home Office has chosen to distinguish the new categories from the previous Points-Based System (PBS) categories introduced from 2008. The terms ‘leave to enter’ and ‘leave to remain’ are replaced with the less technical sounding ‘permission to enter’ and ‘permission to stay’.

The student categories are set out in two new appendices to the Immigration Rules. We can expect a similar approach when the Rules are published for workers, with separate appendices being expected for Skilled Workers and Intra-Company Transfers. It is not clear yet whether there will be multiple appendices for the various temporary worker categories that currently sit within Tier 5.

The appendix for Students includes provisions relating to their dependants. The choice not to centralise the Rules for dependants across a range of immigration categories could turn out to be a headache both for the Home Office and users of the Rules. There is a high chance that the Rules for dependants in different immigration categories will diverge over time, either intentionally or due to drafting errors. This introduces complexity that could trip some users of the system up.

The two student appendices cross-reference to other ones that will cover common issues and will be relevant for work categories as well. These are:

• Appendix ATAS – this covers the requirement for some adults in most immigration categories who are intending to undertake studies in some subjects to obtain approval under the Academic Technology Approval Scheme (ATAS). The main change is that the new Appendix exempts nationals of certain countries from having to get this approval.

• Appendix English Language – this now provides that where an applicant has met the English language requirement in a previous UK immigration application under any category, they will not be required to meet it again unless the current application requires English language ability at a higher level. Malta and Ireland have now been added as majority English-speaking countries

• Appendix Finance – this covers maintenance requirements

Although the number of cross-referenced appendices will be lower than under the current PBS, there will still be a need to look in multiple places to find out what the full requirements of an immigration route are.

Alongside revisions to the Immigration Rules, the Home Office will also have to update all its related website content and application forms, as well as its guidance for sponsors, applicants and case workers.

All in all, this amounts to a mammoth undertaking, and errors will inevitably be made. It will be a considerable time before the nuances of the new order are fully understood, and any unintended issues are ironed out. Users of the system will need to be vocal about raising issues, and will likely need to be persistent to get them satisfactorily resolved.

Tip 3: Pay attention to validity requirements

One of the notable features of the new student Rules is that in addition to the existing requirements to apply on the appropriate application form, to pay application fees and the Immigration Health surcharge and to provide biometrics and a passport or travel document as proof of identity, some requirements that are currently considered to be eligibility requirements will become application validity requirements. For Students, these include:

• The age of the applicant

• The immigration category or status the applicant is allowed to switch from

• Having a Confirmation of Acceptance for Studies reference number at the date of application

• Having the consent of a government of international sponsorship agency where the applicant has been sponsored in the 12 months before the date of application

The benefit of this change is that if an application is deemed to be invalid, the application fee will be refunded, whereas currently it would not be.

The much larger pitfall however is that for in-country applicants, an invalid application will mean that no application will have been considered to have been made at all. This can have severe implications for people who attempt to make an application for further permission to stay immediately before their current permission runs out, because a statutory extension of their leave will not arise.

If such a person only finds out their application is invalid after their immigration permission has expired and resubmits their application after the expiry of their permission, they will be doing so as an overstayer. This introduces significant complexity and uncertainty into the application process. Also, without a statutory extension of leave, the person would have no immigration conditions, so would not be able to work, study or rent private accommodation during the consideration of their application, even if they were allowed to do so under their previous expired leave.

The Home Office may still provide an applicant with a single opportunity to correct issues that would render their application invalid. However, it remains to be seen what the mechanism will be to enable consideration of an application outside the Immigration Rules where a validity requirement is not met, eg where an applicant is asking for a switching requirement to be waived.

Tip 4: Get any sponsor licences in order and stay on top of CoS allocations

Having a Confirmation of Sponsorship (CoS) on the date of application will almost certainly be a validity requirement for an application under a sponsored work route. Employers will need to make sure they get the timing right for any sponsor applications and requests for CoS allocations so that immigration applications are not unnecessarily delayed. In some cases, timing issues around this could break the continuity of leave of sostme migrants, re-setting the clock for indefinite leave to remain.

Employers should review their sponsor licence and CoS allocation needs regularly. They should be aware that sponsor licence applications can take around eight weeks to process and standard requests for revised CoS allocations can take up to 18 weeks. These timelines can be longer if a sponsor visit is required. They could also change if a priority consideration process is resumed or the overall consideration process is revised under the new system.

Tip 5: Pay attention to switching requirements

The new Rules for students make good on the Home Office’s stated intention to liberalise and simplify the situations where a person will be able to switch from one immigration category or status into another without the necessity to leave the UK and apply for entry clearance.

For Students, switching will only be prohibited from the following types of permission:

• Visitor

• Short-term student

• Parent of a Child Student

• Seasonal Worker

• Domestic Worker in a Private Household

• Outside the Immigration Rules

The list is likely to be broadly similar for applicants in work categories. As noted above, failure to meet the switching requirement will ordinarily make an application invalid, and clarification will need to be sought on how a request to waive a switching requirement ought to be made. Another point that is not yet resolved is whether the Home Office will consider applications currently being approved under the COVID-19 concessions to have been granted outside the Immigration Rules or not.

Tip 6: Consider certifying the financial requirement if possible

For students, it will no longer be necessary to provide evidence of maintenance funds (which will be known as meeting the financial requirement under the new system) if they have been in the UK with immigration permission for at least 12 months already.

We will need to wait and see what the financial requirements (the maintenance requirement under the present system) will be for the Skilled Worker, Intra-Company Transfer and other work-related immigration categories, however it is likely that a similar provision will be made.

Assuming employer certification is still possible under the new system, it may be a good way to minimise the risk that an application will be refused due to the financial requirement not being met. Currently, there is a published list of financial institutions that are or are not deemed to satisfactorily verify financial statements. However, the recently published Rules show that the financial requirement will not be met if, amongst other things, the Home Office is unable to make satisfactory verification checks with the financial institution. The potential problem is that individual applicants will not know in advance whether or not the Home Office will be able to do that.

Conclusion

Whilst the new Immigration Rules for work routes will not be published until later in the Autumn, the new Rules for students do provide some significant pointers on the Home Office’s general thinking and flag some areas where further policy clarifications will be needed.

We will be exploring the new system, along with the updated position on COVID-19 arrangements and right to work in our  Immigration Law Academy on 23 and 24 November 2020. If you have any specific queries on the new system and how it may affect you, please get in touch with a member of the immigration team.