Home Office | Autumn Statement of changes to the Immigration Rules (HC719) | 2022

Changes to Immigration rules | October 2022

The Home Office published its latest Statement of Changes to the Immigration Rules (HC719), on 18 October 2022, announcing various changes to a number of UK immigration routes, as well as the introduction of two new immigration routes. Markedly, the reforms do not include the proposed expansion of the innovator route to partly deal with the gap left by the closure of the tier 1 (investor) route in February 2022. In this update, we look at some of the key changes to the Immigration Rules. Changes came into effect from 9 November 2022, except where otherwise stated.

Skilled workers

An amendment has been made for calculating whether salary requirements are met. For new applications, guaranteed payments other than basic salary will be accepted, only if they are treated in exactly the same way as basic gross pay for tax, pension and national insurance purposes

A clarification is made that entry clearance or permission to stay will be granted for 14 days after the end date of the certificate of sponsorship (CoS), and that a CoS can only be assigned for a maximum of five years.

For specialty registrar doctors at core trainee level, the going rate has been reduced from £56,077 to £51,057. This corrects a previous error.

Reductions in pay (work routes)

A sponsored worker's salary may be temporarily dropped where their hours are reduced due to individual health reasons or a phased return to work. The reduction in hours must be supported by an occupational health assessment. The worker must still be paid at least the hourly rate that applied when their most recent immigration permission was granted.

Creative workers

Standard visitors and visitors for permitted paid engagements are no longer permitted to switch into the creative worker route from inside the UK.

This applies to permission to stay applications made using a CoS issued on or after 9 November 2022 and must be considered by the sector in arranging moves to the UK.

For performers in opera and theatre, the codes of practice are separated out, updated, and made more specific to their respective fields. Sponsors are advised to review the changes for workers they intend to sponsor now.

Seasonal workers – poultry workers

The seasonal worker visa (Temporary Work) now includes specific roles in the poultry sector from 18 October to 31 December each year. This came into effect at 16:00 on 18 October 2022. Applications must be made by 15 November each year.

Permission may be granted to enter and remain in the UK for either the period of sponsorship plus 14 days before and 14 days after or for the period commencing 18 October and ending 31 December, whichever is shorter.

Global business mobility

The service supplier route is updated to enable permanent residents of Australia and New Zealand to qualify under this route to provide services in line with the trade agreements. Individuals applying under the Australian trade agreement will be able to stay in the UK for 12 months. Those applying under the New Zealand trade agreement may stay for a maximum of 6 months.

Minor updates have also corrected previous errors across the global business mobility routes. This includes clarification that only A-rated sponsors can certify the financial requirement under these routes.

Visa nationals list

Citizens of Colombia, Guyana and Peru have been removed from the visa nationals list and will not need a visa to come to the UK for visits of up to 6 months.

English language requirement

The British Overseas Territories have been added to the majority English speaking country list, so nationals of these territories will no longer have to evidence the English language requirements for UK immigration applications.

Visitors

Sports officials are now permitted to support sports tournaments and events in the UK without having to attend the same event as a sportsperson who is carrying out permitted sporting activities. Amendments have also been made to enable visiting sports officials to switch into the international sportsperson route without having to leave the UK.

Midwifery students on overseas degree-equivalent courses can come to the UK to carry out unpaid electives with a UK education provider on the condition that they do not treat patients.

Formal abolition of police registration requirement

Part 10 and Appendix 2 of the Immigration Rules have been deleted, formalising the abolition of the Police Registration Scheme. There is now no requirement for foreign nationals (of specified nationalities, aged 16 or over, usually granted more than six months’ leave in certain migration categories) to register with the police when they arrive in the UK or secure further leave to remain.

Overstayers Applications

Applications for permission to stay may be accepted in certain circumstances where the applicant is an overstayer, under paragraph 39E of the Immigration Rules. This has been expanded to include individuals who have overstayed following the rejection of an application that they made before the expiry of their previous immigration permission. Previously, this only applied to refused applications.

Ukraine extension scheme

The scheme has been extended to include those granted UK immigration permission for any period between 18 March 2022 and 16 May 2023. 36 months' stay is granted to Successful applicants under the scheme.

This option will be particularly helpful to Ukrainian nationals who entered the UK without making an application to one of the Ukraine Schemes and who were granted 6 months’ Leave Outside the Rules at the border. It will also assist Ukrainian nationals who are in the UK, as an alternative to extending their permission under their current route. Note that the Ukraine extension scheme does not currently lead to settlement and cannot be counted towards the qualifying period in other routes.

There is a new requirement for applications to be made by 16 November 2023. This deadline is to encourage individuals to apply for leave under the Ukraine extension scheme to ensure they maintain a lawful immigration status.

Hong Kong BN(O) Household Member Route expansion

The Hong Kong British National (Overseas) (BN(O)) Household Member Visa is a route for adult children (aged 18 or over) of a BN(O) Status Holder or a BN(O) Status Holder’s partner, born on or after 1 July 1997, to live, work and study in the UK.

From 30 November 2022, eligible adult children will be allowed to apply independently (along with their partner, dependent children, and adult dependent relatives) from the Hong Kong BN(O), without having to form part of their parents’ household or apply at the same time as them.

Sponsor guidance updates | November 2022

On 9 November 2022, the Home Office updated its Worker and Temporary Workers Sponsor guidance in line with the Autumn Statement of Changes to the Immigration Rules (HC719), as discussed in our earlier update.

The updated guidance includes various changes that are relevant to sponsors, the main points of which are summarised below.

New Immigration Skills Charge exemption

Part 2 of the sponsor guidance has been updated to include a new exemption from paying the Immigration Skills Charge (ISC), due to come into force on 1 January 2023.

The ISC of £364 (small companies) or £1,000 (medium/large companies) per year is a considerable amount, which must be paid by the sponsor and cannot be passed onto the sponsored worker.

In some cases, the sponsor may be exempt from this charge, including where a worker:

• Is applying for entry clearance and will be sponsored for less than 6 months.
• Is sponsored in an ISC exempt occupation code as listed in the Immigration Rules.
• has previously been assigned a Certificate of Sponsorship (CoS) by the same sponsor, and the new CoS will not exceed their current period of permission.
• is switching from a student route, including when a further CoS is assigned, provided they remain within the same role.
• was assigned a CoS before 6 April 2017 and was granted permission to enter or stay and undertook and continued the same role.

There is a new exemption from the ISC for Global Business Mobility – Senior or Specialist Workers who are EU nationals and are transferred to the UK by an EU company on or after 1 January 2023 (note that this is subject to Parliamentary approval).

Changes to a worker’s start date

The guidance has been updated to provide some important clarifications on what sponsors must do if a sponsored worker’s work start date is delayed by more than 28 days, or if a worker is absent without pay for more than 28 days.

Also, where a worker’s start date was delayed, the sponsor previously had to notify the Home Office and confirm a revised start date within 10 working days. The revised start date could not be postponed by more than 28 days, otherwise, the sponsor could no longer sponsor the worker. Sponsors no longer need to notify the Home Office if the late start date is delayed by less than 28 days.

Sponsored workers can now start working as soon as they have permission to enter the UK, even if this is before the start date recorded on their CoS. The sponsor does not need to report this earlier start date.

Unpaid leave

Sponsored employees are now permitted to have periods of unpaid leave of over 4 weeks, where there are “compelling or exceptional circumstances”. This must be reported via the Sponsorship Management System (SMS) and the reasons for such period of unpaid leave will be considered. Previously, sponsored workers could not take more than 4 weeks of unpaid leave in any calendar year, unless there was an exemption such as maternity, paternity leave, sick leave etc. Unless an exception applies, sponsors must normally stop sponsoring a worker who is absent from work without pay for more than 4 weeks in total in any calendar year.

Calculating salary

In determining the minimum salary for a role, the Home Office will now only consider guaranteed basic gross pay (before income tax and including employee pension and national insurance contributions, and other guaranteed payments which are treated the same as basic gross pay for tax, pension and national insurance purposes). Other allowances, pay or benefits will be disregarded, even if they are guaranteed.

Defined Certificate of Sponsorship applications

DCoS applications are normally granted within 24-48 hours of application. However, there can be delays where further information is requested.

Now, under the updates, the Home Office aims to consider DCoS applications within 20 working days.

Sponsors must now include the number of working hours in any application for a Defined Certificate of Sponsorship (DCoS). This should be included in the summary of job description text box.

A message in the SMS informs sponsors:

“Your attention is drawn in particular to the amendment to the note at paragraph SK12.12. If applying for a Defined Certificate of Sponsorship (DCoS), you must include information about the sponsored worker's working hours. Failure to provide this information is likely to result in your DCoS application being rejected. We will also reject a DCoS application if we have good reason to believe the salary or working arrangements do not comply with UK employment law, such as National Minimum Wage or the Working Time Regulations”

Sponsor compliance

Sponsors must log into the SMS regularly to ensure they are up to date with any important updates and messages such as the above.

This guidance contains detailed information about licensed sponsor duties and the action the Home Office can take if sponsors fail to meet these duties.