Post-Brexit work visa system

Six things that we did (and didn’t) learn from the Home Office’s “Further Details” document on the post-Brexit work visa system.

On 13 July 2020 the Home Office published its 130-page “Further Details” document for the UK’s post-Brexit points-based immigration system. It was a release hotly anticipated by stakeholders, not least because of the amount of detail we are waiting on. Here’s a run down of what we did, and didn’t, learn. These are draft proposals, but most if not all of them are likely to translate in to final outcomes.

The system of sponsorship will remain largely the same as the current one

We had been promised a more streamlined and user-friendly sponsorship system for employers, but delivery of this seems a long way off. Short of confirming that employers will not need to advertise for four weeks or get an approval to sponsor an individual from a monthly allocation (which we already knew), there is nothing to indicate the system will be meaningfully different to now, come January 2021.

That’s a shame, as it means employers new to sponsorship will need to get to grips with an online interface that is unlikely to feel either intuitive or familiar, and existing sponsors won’t see the improvements we were hoping for. Not yet, anyway.

Rebranding, and the automatic transfer of sponsor licences

It’s now official. The current Tier 2 (General) and Tier 2 (Intra-Company Transfer) sponsored work visas will be rebranded as “Skilled Worker” and “Intra-Company Transfer” visa routes.

Any employers already licensed to sponsor Tier 2 (General) and/or Tier 2 (Intra-Company Transfer) visas under the current system will be automatically granted licences for the new/re-branded visas. There’ll be no bonus of an extended licence period though. Expiry dates will remain four years from the date the most recent/current licence was granted.

Pay remains fundamental

As with now, and notwithstanding the emphasis placed on ‘skills’ as being the key driver for sponsored work visas, it’s still the money that really talks.

The minimum skill level for the sponsored ‘Skilled Worker’ visa will, in fact, be dropping (from graduate, to A-level or equivalent). Unchanged though will be the requirement for a sponsor to demonstrate that a worker will be paid at or above a minimum level. This will be the higher of the applicable “going rate” for the job, and the visa’s own “general threshold”. In the vast majority of cases the latter will be £25,600, and things get complicated when you start to delve in to trading points, and other eligibility criteria, that allow for a salary of less than the two applicable standard minimums (more on that immediately below).

Pay gets complicated

Unfortunately, given its overall importance, identifying whether the salary you will pay for a job will be sufficient to get a visa could get very complicated indeed under the reformed system.

For a Skilled Worker visa, the minimum will never drop below £20,480. This is the floor below which the Home Office will not grant the visa. And £20,480 will be far from the norm. For someone to qualify for a Skilled Worker visa for a job paying between £20,480 and the usual £25,600 minimum, they will need to demonstrate some pretty specific attributes.

New entrants

One route is by demonstrating that they are a ‘new entrant’. This is another expression that employers new to sponsorship will need to get familiar with. It’s not a new concept, but there is an important new requirement to show that the individual will be working towards a ‘recognised profession’ in the role they are to fill.

PHDs

Holding a PHD in a subject relevant to the job is another way. The devil is in the detail here though, as it is the employer/sponsor that has to assess the relevance of a given PHD to a job, and they must be ready to have this scrutinised by the Home Office later.

Shortage Occupations

Another familiar concept under the current system, but one which becomes increasingly important when free movement ends on 31 December 2021. In essence, the job to be sponsored will either be on the (likely short) list, or it won’t.

Listed health and educations jobs

A new concept, which will involve demonstrating that the job to be filled is on the specific list. This triggers a requirement to pay at least the relevant national pay scale rate for the job, to meet the ‘going rate’ requirement.

Percentages headache

This is where it gets tricky, because in addition to the fact that the above criteria provide differing levels of points with which to top up a (up to 20 point) deficiency in the score for salary, the actual deficit (as a percentage of the standard pay minimum) can differ, depending on which of the two pay measures (‘going rate’ and ‘general threshold’) you are looking at. You have to satisfy both, by the way.

Here’s an, all too plausible, example. You wish to sponsor an individual for a job for which the stipulated ‘going rate’ for a visa is £28,000. Your job only pays £20,000 a year. Before you lose all hope, you spot that the person you wish to sponsor qualifies as a ‘new entrant’. This means she just has to be paid at least 70% of the ‘going rate’. That’s £19,600 and so your £20,000 salary is sufficient on this measure. However, when you come to look at the ‘general threshold’ pay requirement things go awry. This is because a ‘new entrant’ still has to be paid at least 80% of the ‘general threshold’. That’s the £20,480 (80% of £25,600) floor below which the pay for a Skilled Worker visa holder cannot drop. So your salary for the job is ok for the ‘going rate’ test, but about £500 short for the ‘general threshold’, so the candidate/job won’t qualify.

Things get even more complicated for part-time roles, but we’ll save that for another day.

Who will benefit from the “Health and Care” Skilled Worker visa?

Given its political importance, this newly announced subset of the Skilled Worker visa route was presented with much fanfare. It promised fast-track processing, reduced fees, and dedicated support, for workers in eligible roles in the health and social care sector. However, we don’t yet have clear details as to who will qualify for it from 2021. For now the list of qualifying jobs in the document is very limited, as the Home Office have opted to base it on the current graduate skills level requirement that will not apply under the new system (see “Pay remains fundamental” above). The reason for this became clear on the day after the document was published, when the Home Office announced that this visa would in fact be available from early August 2020 (seemingly only for those jobs which meet the graduate level skill requirement that will remain until the end of the year). We have to wait for confirmation of what the expanded, A-Level or equivalent, list will look like for 2021 and beyond, but clearly even that may leave out many frontline care roles that will still need to be filled from somewhere over the coming years.

Under what rules will visa applications need to be made?

Again, this remains to be seen. So while employers do now have a clear basis on which to start planning and preparing for 2021 (and with only a few months left they should be) there is a whole raft of information and rules that we do not yet have and which are required in order for the system to function correctly. We can but hope that the, substantial, “further detail” will be provided very soon.

Listen to Adam Williams on Bloomberg Radio discussing the new points-based system here.