Practice Area: Immigration

The Government’s latest Innovation Strategy was published in July 2021. The proposals focus on the UK’s recovery from the COVID-19 pandemic and the creation of a “robust and agile economy” that will work for everyone and be viable for future generations.

One of the four “key pillars” identified as being crucial to the strategy is “people” and the need to attract global innovators and highly-skilled individuals.

The introduction of two new visa routes for individuals, the High Potential Individual and Scale-up routes, will add to existing routes and could make the UK one of the most accessible countries in the world for global talent.

New immigration routes

The strategy contains details of the following new visa routes for 2022.

The High Potential Individual visa route

Adding to the Global Talent Route, the new High Potential Individual route will see graduates of top global universities able to apply to enter the UK without a job offer. As an unsponsored route, the employer of a “high potential individual” won’t require a sponsorship licence.

The route will offer the visa-holder flexibility to switch jobs and employers, and to extend their visa so they can settle in the UK, thus contributing to the UK economy.

The strategy proposals include scope for the visa route to expand eligibility to additional characteristics of high potential other than university graduation.

The Scale-Up visa route

Skilled migrant workers who have a job offer with the required salary from a qualifying “scale up” business, will be able to enter the UK on the Scale-Up visa route.

The ‘scale up’ business will be able to apply for fast track verifications if they can demonstrate an annual average revenue or employment growth rate over a three-year period greater than 20%, and a minimum of 10 employees at the start of the three-year period.

This new visa route will allow eligible individuals to work, switch jobs or employers, and, if they meet certain requirements, extend their visa in order to settle in the UK.

Global Business Mobility visa

Overseas businesses and companies specialising in innovation will have greater flexibility to come to the UK to grow their businesses and transfer workers to the UK. The Global Business Mobility visa route will streamline a number of existing routes and incorporate various existing provisions.

Updates to existing visa routes

The strategy document also provides details of how existing visa routes for innovators and global talent will be “revitalised”.

The Innovator visa route

This current route allows entrepreneurs and talented innovators to enter the UK from overseas to start a venture-backed business or a business that harnesses innovative technologies based in the UK. The visa holder must operate the business in the UK and create jobs for UK workers.

The revitalised route will simplify the existing requirements by streamlining the business eligibility criteria. Fast-track applications may be available when the business ideas are particularly advanced. Any applicant accepted for the Global Entrepreneur Programme (GEP) will be eligible automatically for this visa route.

The latest proposals would see the requirement for £50,000 in investment funds removed, providing the applicant is able to show they have sufficient funds for business growth. Further flexibility will be encouraged by removing restrictions on work carried out other than for the primary business.

Encouraging globally-mobile talent into the UK

Current visa routes and programmes already create opportunities for global talent to enter the UK, and to work and study here. Tweaks and changes to the various qualifying criteria, extent of the provisions, and the options available to applicants and visa holders are being evaluated and added in response to Government strategy.

The ‘Global Entrepreneur Programme’ is available to high-skilled migrant tech founders who have IP-rich businesses they wish to establish in the UK. The ‘Global Talent Visa’ is open to leaders in the fields of research, arts, culture, academia and digital technology. In May 2021 a fast-track option was introduced for winners of globally recognised prizes.

More flexible Graduate Visa routes will allow international students time to live and work in the UK once their studies have been completed successfully. This gives graduates two years following a degree and three years following a PHD to live and work, doing any job, in the UK. This should mean that they have time to find the best, most suitable use of their talents and to potentially fulfil the UK’s innovation needs.

Specialist immigration solicitors for visa applications and more

The ever changing rules and requirements for UK immigration can make it seem hard to enter the UK or to fulfil your business’s needs for talent.

By instructing Wellers Immigration Service you can eliminate much of the confusion and hassle that is often associated with immigration applications. Take advantage of our vast experience, thorough knowledge and team of expert support staff.

Please call Rosalind Nunoo on 020 8290 7982 or email rosalind.nunoo@wellerslawgroup.com

The deadline for EU nationals to apply for residency under the EU Settlement Scheme (EUSS) has come and gone. If you employ EU nationals in your construction business, there are some important factors to consider now.

Hopefully, your employees all applied under the EUSS and their status has either been confirmed or is in the process of being adjudicated. However, if any of your EU employees have not yet applied and/or you intend to employ EU nationals in the future, there are several issues you should be aware of.

Can EU nationals still apply under the EU Settlement Scheme?

While the EUSS application deadline of 30 June 2021 has indeed passed, this particular date was relevant only to those who were able to apply for ‘full settled status’ due to their having five years of continuous residence in the UK prior to 31 December 2020.

EU employees with ‘pre-settled status’ (that’s around 2.3 million EU nationals who had not achieved five years of continuous residence by 31 December 2020) now have up to five years to accumulate the required amount of time in the UK to apply for full settled status. So there is likely to be a steady flow of applications up until mid 2026 for those who wish to live permanently in the UK.

What is the difference between pre-settled status and full settled status?

EU workers who had been living and working in the UK before 31 December 2020, and wanted to continue to do so, had until 30 June 2021 to apply under the EU Settlement Scheme. What type of status they could apply for depended on their employment status and the evidence they were able to supply to the Home Office.

Pre-settled status applies to EU citizens who had lived in the UK for at least one day in the six months until 31 December 2020. It is a temporary status of up to five years and allows limited leave to remain (meaning that if the applicant does not apply for full settled status they will be required to leave at the end of the applicable period).

Full settled status was available to individuals who had lived and worked in the UK for at least five years prior to the deadline and fulfilled the continuous residence criteria. It provides indefinite leave to remain.

Valid reasons for late applications under the EU Settlement Scheme

If your employees have yet to apply for settled status, it will be their responsibility to prove to the Home Office that they had a genuine reason for failing to apply during the application period if they wish to remain living and working in the UK.

If the applicant can prove that an application should reasonably have been made on their behalf, such as by a parent, guardian or local authority, this may be seen as reasonable grounds. Typical scenarios are likely to include the EU parents of a child born in the UK not realising they needed to apply within three months of the birth of the child, and EU parents who applied themselves but did not realise the requirement to apply separately for their children.

The following are also possible valid grounds for late application to the EU Settlement Scheme.

• The applicant has diminished physical or mental capacity and/or specific care or support needs.
• The individual has a serious medical condition or was undergoing significant medical treatment including, in certain cases, hospitalisation with COVID-19.
• The applicant has been a victim of modern slavery.
• The individual is in a controlling, coercive or abusive relationship.
• Other compelling compassionate reasons including a lack of permanent accommodation which prevented them from applying, complex needs that meant they were not aware of the support available to help them apply, they were hampered in accessing the support available to help them apply by restrictions associated with the COVID-19 pandemic.

When an EU citizen is attempting to prove they have a valid reason for late application under the EU Settlement Scheme they will benefit from the assistance of an experienced immigration solicitor who can help them build their case. Without sufficient evidence an EU worker who has does not have settled status will no longer be able to live or work in the UK and could be removed by the Home Office.

What do construction employers need to do?

There are many EU workers employed in the construction industry and UK employers now have a duty to ensure that all new non-UK citizens they employ have the right to work in the UK. Employers who do not check the right to work status of all new hires may face fines of up to £20,000 per illegal employee with no limit on the number of employees that could incur fines. In the worst cases, employers may face a custodial sentence.

Employers who carried out applicable right to work checks prior to the end of the EU Settlement Scheme application period will have fulfilled their legal duties to ensure employees have the right to work. As long as EU employees’ passports and national id cards proved their right to work prior to 30 June 2021, EU construction workers employed prior to the deadline will still be eligible to work in the UK from 1 July onwards. If they have received full settled status they have indefinite leave to remain in the UK and if they have achieved pre-settled status, they will need to apply for full settled status once they achieve the five years of continuous residence in the UK.

Home Office guidance makes it clear that employers are not obligated to check whether existing employees have secured settled status under the EU Settlement Scheme, and that employees have no obligation to prove their settlement status.

How to stay compliant with ‘right to work’ obligations while avoiding discrimination

The application deadline created a fine line for employers between discriminatory behaviour and ensuring the ongoing stability of their workforce. During the application timeline, new hires from the EU could volunteer their status under the EU Settlement Scheme but were not compelled to do so. Thus creating a conundrum for the employer regarding the applicant’s long-term commitment to working in the UK. However, discriminating against employees who had not applied under the EUSS could contravene UK Employment Law.

In order to ensure the future stability of your construction workforce you may wish to carry out retrospective settlement status checks, but this must not lead to discriminatory action against employees who have not applied. Employers may wish to hold informal meetings with EU employees and contractors to make sure they understand the rules around ‘right to work’ following Brexit.

New EU hires, after 1 July 2021, must provide their prospective employer with evidence of their status under the EU Settlement Scheme or prove they have the right to work through another source, such as sponsorship under the new points-based-visa system or via a partner visa.

The introduction of the points-based visa system for EU workers has created a new layer of costs involved in hiring overseas staff, including the need for many more businesses to seek sponsor status.

COVID-19 adjusted measure checks

Despite the global health pandemic, it remains a statutory obligation for employers to carry out ‘right to work’ checks for all new hires. Temporary COVID-19 adjusted check measures were introduced on 30 March 2020 and have been extended until 5 April 2022. These measures include:

• Using video calls to carry out checks rather than face-to-face meetings.
• Allowing scanned documents or legible photographs of documents, sent via email or suitable messaging platform, to be provided by job applicants or existing workers instead of sending originals.
• The provision of the online Employer Checking Service for instances when a prospective or existing employee is not able to provide the accepted documentary evidence.

There are a number of rules that apply in order to ensure the right to work check is valid including:

• During the right to work check video call, the employer must see the original documents and check them against the digital copies. The date of the check should be added to the copy and marked “adjusted check undertaken on [date of check] due to COVID 19”
• If the worker has been granted the right to work under the EUSS or via the points-based-visa programme, or if they have a current Biometric Residence Permit or Biometric Residence Card, the employer can use the online Right to Work checking service during the video call so long as they have the applicant’s permission to view their status details.

Wellers Law Group immigration services for business

Post Brexit immigration is a hot topic and despite the guidance about post-Brexit changes to freedom of movement and right to work being available in plenty of time before the deadlines expired, many businesses had not fully comprehended how the changes might affect their workforce.

If your construction firm hires migrant workers, you will need to ensure that you have carried out the relevant right to work checks and have applied for the right level of sponsorship if you are going to employ EU workers on a points-based-visa in the future.

For assistance on all business immigration matters, contact Rosalind Nunoo on 020 8290 7982 Ros provides expert support which can help you understand and uphold your legal obligations as an employer of EU and all overseas workers.

How does the UK points-based visa system work?

A new points-based immigration system came into force in the UK on 1 January 2021.

The system requires non-UK citizens to apply for and be granted an appropriate work-related visa in order to enter the UK for work purposes. (There are exceptions for Irish citizens, British National Overseas passport holders, and certain other groups.)

The role must be with an approved employer (sponsor) and must be on the eligible job list.

Visa applicants must meet specific requirements relating to the job role they are going to fulfill and each requirement will provide a number of points relating to their visa application. If the applicant gains enough points, they will be eligible for the visa (subject to other immigration checks).

Skilled worker requirements

All persons coming to the UK to work must demonstrate the following:

• they have the required standard of spoken English
• they have a job offer from a licensed sponsor who is registered with the Home Office
• they are a designated ‘skilled worker’ and can fulfill the job offer requirements

These and other criteria will help the visa applicant reach the required 70 points for the new points-based system.

From 15 February 2022, new immigration rules were introduced so that care worker and home carer roles could be fulfilled by overseas workers. The Health and Care Worker visa route is a sub-category of the Skilled Worker route.

What is a ‘skilled worker’?

Being a ‘skilled worker’, in terms of immigration applications, is less about the person and more about the job they will be doing. All ‘skilled worker’ roles are defined by Home Office criteria and relate to the skill level required to fulfill the job role.

For instance, a doctor with a medical degree and postgraduate diplomas is certainly a skilled worker, but if the role he or she applies for in the UK is for something unrelated and of a lower skill level, perhaps working as an administration assistant in a bank, the role would not gain ‘skilled worker’ status and the doctor would not be eligible to apply for a ‘skilled worker visa’ in relation to this role.

What is a ‘skilled worker’ role?

All job roles in the UK have a Standard Occupational Classification (SOC) code and each code carries a skill level. The Home Office sets out what level is required for a role to be classified as ‘skilled’.

The classification of a ‘skilled worker’ role involves looking at the day-to-day activities that will be carried out by the employee and the amount they will be paid for this work. An important-sounding job title alone will not be sufficient to achieve ‘skilled worker’ status for immigration employment purposes.

The government list “Skilled Worker visa: going rates for eligible occupation codes” states the required salaries/payment rates for each role, from chief executives to shopkeepers, chemical scientists to sheet metal workers.

According to the Gov.UK website, the immigration rules will be updated to expand the number of occupations which are eligible for the ‘skilled worker’ visa entry route.

There are different salary rules for some healthcare, and teaching and education leadership roles in the UK because they are governed by national pay scales which vary by geographical location.

What has changed in respect of ‘skilled worker’ visas?

Previously, applicants with a bachelor’s degree or an NQF Level 6 qualification or above would have fulfilled the entry requirements for a Tier 2 visa.

However, the points-based system opens up the entry requirements so that a number of job roles that previously wouldn’t have been eligible now fall under the ‘skilled worker’ category.

A ‘skilled worker’ will hold minimum qualifications of either NQF Level 3 or above and A-Levels (in England and Wales), or Higher qualifications (in Scotland). This means that a more diverse set of job roles can be fulfilled by non-UK citizens who qualify as ‘skilled workers’.

The points-based visa system – how to accumulate ‘points’

The points required to be able to apply for a ‘skilled worker’ visa will comprise of a set of mandatory and tradeable points.

Mandatory points – 50 required: The applicant must have a job offer from a Home Office licensed sponsor (20 points), the job must be at an appropriate skill level (20 points), and they must have the required level of spoken English (10 points).

Tradeable points – at least 20 required: Further points are awarded in relation to the salary (minimum salary to gain points is £23,040) and must be at least 80% of the going rate for the role. Tradeable points are also awarded for those with a PhD in a subject relevant to a job (10 points) or a PHD in a STEM subject relevant to a job (20 points).

Immigration lawyers for the ‘skilled worker’ route

If you need legal advice on immigration issues and visa applications, the team of immigration professionals at Wellers Law Group are here to help. We have appointments available for confidential fixed-fee consultations in which we can answer your questions and explain the immigration processes applicable to your individual situation.

To book your appointment call Rosalind Nunoo on 020 8290 7982.

 

In what may well turn out to be one of its last meaningful acts before a possible snap election, the government has announced that it has accepted the recommendations of the Migration Advisory Committee (MAC) which called for an expansion of the Shortage Occupation List (SOL). Here, Wellers’ immigration solicitors in London take a look at the recommendations and what they mean for employers in the UK.

What is the Shortage Occupation List?

The shortage occupation list is the government’s official list of occupations that cannot be sufficiently staffed by UK residents. In order to appear on the list there are three key requirements of a job:

• there is a level of skill required for the job
• there is a shortage of people employed at the job in the UK
• there is sense in reducing the shortage through immigration

The Migration Advisory Committee carries out regular evidence-based reviews of the list and then makes recommendations which the government examines before deciding whether to ratify any suggestions for addition.

UK employers who wish to fill a vacancy for a position featured on the SOL with a person from outside the European Economic Area (EEA) and Switzerland must issue a Tier 2 certificate of sponsorship (CoS) and this can be done without any need to demonstrate that the Resident Labour Market Test (RLMT) has been met. In contrast, employers wishing to recruit a worker from overseas for a position which does not feature on the SOL list, must ensure that the person meets the Resident Labour Market Test.

The updated list

Prior to the latest MAC recommendations being accepted, the SOL list was most recently updated in 2013. However, in their most recent review the Migration Advisory Committee looked at potential changes to the British labour market which are likely to occur after Brexit and has, against this background, now provided an updated list of SOL occupations.

This updated list adds many roles, including those in the following sectors:

• Medicine
• Engineering
• Teaching
• Technology
• Architecture
• Science
• Web design

The government has also said that it will look into another important MAC recommendation to pilot a scheme in which the SOL would be extended to meet some of the challenges faced by remote communities. Currently there is a Scotland-only SOL to accompany the UK list, and a 2018 White Paper made calls for SOLs to be drawn up for Wales and Northern Island. However, Professor Alan Manning, Chair of the committee, said that while the MAC recommends keeping the option open for additional lists, most of the shortages identified appeared to be occurring across all nations of the UK.

A parting gift

On 23 July 2019, Home Secretary, Sajid Javid told the Houses of Common in a statement, “The MAC recommended a number of changes to the main UK-wide SOL, expanding the list to cover a range of high-skilled occupations, including a number of health and social care, engineering and digital technology occupations…The Government is happy to accept all of the MAC’s recommendations on the composition of the SOL and the necessary amendments will be made in the autumn immigration rules changes.”

What this means for employers

The expanded SOL list is good news for employers as it means that they will no longer need to carry out the Resident Labour Market Test (RLMT) advertisement process for Tier 2 applications for those job roles newly listed under the SOL. Furthermore, occupations on the SOL will attract lower visa and application fees. The move should also lead to reduced sponsorship timescales.

Although the SOL changes have not yet taken effect, it is likely only a matter of time before the new home secretary makes the necessary announcement of changes to Immigration Rules in this respect.

Wellers Lawyers’ Immigration Services

Wellers Law Group can help you ensure that you are fully compliant with all the immigration rules that affect your business and your ability to employ foreign workers. Please call Rosalind Nunoo on 020 8290 7982.

We provide an immigration service UK wide and our immigration solicitors in London offer pragmatic assistance with the Points Based System (PBS), Tier 1 visas, Tier 2 visas, the Resident Labour Market Test (RLMT) and more.

For more information, contact our immigration lawyer team today.