Q&A from What’s happening in immigration law webinar – 7 December 2023

This will depend on what transitional arrangements are included in the Rules, when published next year. The Home Office has released a factsheet confirming that the scope of any transitional arrangements is yet to be determined. The increase in the threshold is very high so it is to be hoped that there will be transitional arrangements so that people part-way through the process are not excluded from extension/settlement.

The new general salary threshold is expected to apply for Skilled Worker immigration applications made from April 2024. So, if a sponsor licence is in the pipeline, it will depend on when this is granted and when the Certificate of Sponsorship allocation (for in-country applicants) or defined Certificate of Sponsorship (for entry clearance applicants) is available. These must be in place before an application can be made.

We need to wait for the Immigration Rules to be published to know exactly what transitional arrangements will be applied, however it is conventional for new Rules of this nature not to be applied to applications submitted before the date the Rule change takes effect, even if the application is decided after this. There may also be further transitional arrangements put in place for people who already have immigration permission that was approved under the relevant current threshold, and who need to make an extension or settlement application in the future. 

The details of a specific proposed internship would need to be reviewed on a case-by-case basis, however usually the most appropriate route for internships is the Government Authorised Exchange route.

The Skilled Worker route may come into consideration if, for any reason, the proposed engagement is not appropriate for the Government Authorised Exchange route. This could be the case if the post will in fact fill a vacancy in the business’s workforce. If the Skilled Worker route is identified as the appropriate option, the individual would need to fulfil the criteria for that route, including salary thresholds.

Should we be waiting on processing new Skilled Worker visas until the government has updated the details regarding the increased salary details?

An assessment may need to be made of whether it is possible and desirable to sponsor a person for the full five years at the current salary levels.

We need to wait to see what transitional arrangements in the Immigration Rules when they are published.

This can be a tricky issue for employers because excluding a person from a recruitment process based on their immigration status carries the risk of an employment tribunal claim being made for indirect race discrimination.

Historic employment tribunal case law says that recruitment decisions should be based on who is the best candidate for the job, and sponsorship considerations should not be assessed until a late stage in that process.

While there is nothing stopping an employer from asking about an individual’s right to work status during the recruitment process (whether at the start of the application, or during the interview stage, or at the offer stage), it is important that:

(a) the question is asked of all candidates; and

(b) the employer is aware that a policy of automatically rejecting candidates based on their need from sponsorship may prompt an indirect discrimination claim.

Holders of physical immigration documents including Biometric Residence Permits (BRPs), Biometric Residence Cards (BRCs) and passport stamps and stickers (vignettes) will need to register for a UKVI account to access the View and Prove service from the end of 2024.

The full duration of visas and any work limitations for BRP and BRC holders are already available for employers to view online, however this is on a legacy system that will be replaced by View and Prove. It is not yet clear whether this system will remain in place for a short period into 2025 while individuals are in the process of registering for UKVI accounts, or if it will be switched off by the end of 2024.

We would suggest that employers consider doing online checks on BRP and BRC holders now/throughout 2024 using the current system to spread out the administrative burden of doing a large volume of repeat checks at the end of 2024, and to ensure that the expiry date of permission is correctly flagged. See our article here for further information.

Holders of other physical immigration documents will need to ensure they obtain a UKVI account before these cease to be accepted for right to work checks.

Employers were not required to check the UK immigration status of EEA or Swiss nationals whose employment started before 1 July 2021. A right to work check could be performed based on an EEA or Swiss passport or national ID card. For non-EEA family members of EEA or Swiss nationals, checking UK immigration documents issued under the EEA Regulations was also sufficient before 1 July 2021.

No right to work check expiry will have been recorded for EEA or Swiss nationals whose employment started on or before 30 June 2021, and who had or went on to obtain pre-settled status under the EU Settlement Scheme. This is because the employer will have had a permanent statutory excuse against liability for an illegal working civil penalty, with no follow-up right to work check required.

For non-EEA family members employed on or before 30 June 2021 however, an expiry reminder will have been recorded as those who would have been eligible for pre-settled status will have held documentation under the EEA Regulations with an expiry date attached to it.

No it will not. It will only apply to individuals who do not have any other visa in place and who are seeking to enter the UK for visitor purposes (including short-term study up to 6 months), non-visa national entering the UK for up to three months as a Creative Worker or for transiting the UK.

The current visit guidance states that visitors are permitted to undertake activities relating to their employment overseas remotely whilst they are in the UK, such as responding to emails and answering phone calls. However, the main purpose of the trip must be for a ‘permitted activity’. How are you advising your clients to manage this conversation with the business? Also, does this apply to both visa nationals and non-visa nationals?

All visitors (visa nationals and non-visa nationals) must restrict their activities to permitted activities. In addition to recreational and family visits, there are a range of general activities permitted for business visitors, and more specific permitted intra-corporate activities. The full range of activities is set out in the Immigration Rules at Appendix Visitor: Permitted Activities.

The visit guidance you mention is being incorporated into the above Appendix for visa applications or non-visa national visitor entries to the UK from 31 January 2024. The new Rule simply states that a visitor may ‘undertake activities relating to their employment overseas remotely from within the UK, providing this is not the primary purpose of their visit’.

This new wording is helpful for individuals, as it confirms they are allowed to carry out any aspect of their overseas job remotely, provided they are primarily in the UK for another permitted activity.