Immigration update: changes to Immigration Rules and Right to Work checks

As the UK stands on the cusp of exit from the European Union, immigration law is facing a period of considerable upheaval.

As the UK stands on the cusp of exit from the European Union, immigration law is facing a period of considerable upheaval.

It still remains to be seen exactly what the UK immigration regime will look like post-Brexit and what timescales will apply to change. Our previous update explains the proposed post-Brexit immigration framework set out in the Government’s recent White Paper.

In the meantime however, a raft of important changes to the existing points based immigration system have been introduced. On 7 March 2019, the Government published a new Statement of changes to the immigration rules, an enormous 296 page document packed with detailed revisions to the current rules. The key changes are summarised below.

Further, in good news for HR practitioners responsible for carrying out pre-employment right to work checks, this process has now started to move to simplified electronic online checks for some EU applications.

Changes to the immigration rules

Many of the changes set out in the statement take effect on 30 March 2019 (which had been planned as the default date of Brexit) with others being phased in later. The most important points to note are:

Tier 2: updated salary rates

The appropriate salary bands for certain job codes under Tier 2 have been amended with effect from 30th March 2019, meaning that the minimum salary a migrant needs to be paid to attract sponsorship under Tier 2 for some jobs has increased for certificates of sponsorship assigned after this date (but only in cases where the minimum salary for the job code is in excess of £30,000). The lower salary threshold of £20,800 for certain exempted professions (originally due to expire in July 2019) has been extended (with no specified end-date). The exemption applies to all nurses and paramedics, medical radiographers, and secondary school teachers in maths, physics, chemistry, computer science and Mandarin.

Tier 2 migrants applying for indefinite leave to remain in the UK will need to earn a minimum salary of £38,800 (if the date of application is on or after 6 April 2023) and £40,100 (on or after 6 April 2024).

Tier 2: changes to the rules for allocation of Certificates of Sponsorship when the immigration cap is full

Changes have been made to the rules for allocating certificates of sponsorship when the immigration cap is full. Currently when the immigration cap is hit, applicants who earn the most are generally given priority – meaning that they go to the top of the queue (subject to certain exceptions). Presently, one point is allocated per £5,000 of salary –which means in times where the allocation is over subscribed, everyone in a batch which attracts the same points (but not enough to meet the quota requirement for that month) are refused.

This is being changed to one point per £1,000 of salary. This should make it easier to differentiate between visa applications based on salary and, the Government hopes, result in fewer refusals of meritorious applications at times where the immigration cap is full.

Full opening of the EU Settlement Scheme 

The EU Settlement Scheme allows EEA and Swiss citizens residing in the UK by 31 December 2020 (or the exit date in the event of ‘no-deal’) to obtain ‘settled status’ in the UK if they have spent a continuous period of five years in the UK (or pre-settled status if they have been resident for less than five years). Currently, the scheme is only open to EU citizens and their family members. However, the Statement of Changes provides for the full opening of the scheme to EEA citizens (from Iceland, Liechtenstein and Norway) and Swiss nationals and their family members on 30 March 2019.

New ‘start up’ and ‘innovator’ Categories

A new ‘start up’ category will replace the Tier 1 (Graduate Entrepreneur) route, which will close to new entrants on 6 July 2019.

The ‘start up’ category is effectively a new, expanded version of the Tier 1 (Graduate Entrepreneur) category, and is aimed at those starting up a business for the first time in the UK. Applicants will not need to be graduates and will not need to have secured any initial funding (although they must be endorsed by a trusted organisation in the UK, demonstrate proficiency in English and show that have a credible business plan). An individual on a start-up visa is not limited to working for their own business (although they are expected to spend the majority of their working time in the UK developing business ventures). The start-up category does not lead directly to settlement in the UK, although an individual may progress to the ‘innovator’ route if eligible.

A new ‘innovator’ category replaces the Tier 1 (entrepreneur) route which closes to new entrants on 29 March. This route is aimed at more experienced business people, who must show that they have substantial funds available to invest in their business. ‘Innovators’ must spend the whole of their working time in the UK developing business ventures and are not permitted to work for any other business. Innovators may be eligible for indefinite leave to remain after three years continuous residence in the UK (subject to certain conditions).

The rules governing the two new entry routes are set out in a new Appendix W to the Immigration Rules.

Tightening of the Tier 1 (investor) route 

Changes are being made to reform the Tier 1(Investor) route to “better protect the UK from illegally obtained funds”. These include a requirement that candidates can demonstrate control of their funds for a longer period prior to the application being made and an obligation on banks to perform rigorous due diligence checks.

Right to work checks: new on-line process

An employer is required to conduct a right to work check before employing someone to ensure that immigration status will not prevent them from carrying out the work in question. Previously, employers have been required to check the status manually and should continue to follow guidance issued by the Home Office to ensure that they are complying with the rules on how and when to conduct a right to work check.

The guidance has recently been updated and since the 28 January 2019 employers have been able to access and use an online right to work check. This online right to work checking service is not compulsory, but can be used instead of the manual checking service for EU nationals who have applied (and been granted) settled or pre settled status. Given that not all EU nationals in the UK will have applied for (or are required to have) settled or pre-settled status at the moment, the online check will not be appropriate for all EU nationals. Conducting either the manual or the online check will provide the employer with a statutory excuse against liability for a civil penalty.

This new system is a way of simplifying the immigration system and helps to safeguard the employer from unintentionally accepting forged documentation.

How do we carry out an online check?

This check can be done using the online service, View a job applicant's right to work details‘ on gov.uk. This service can’t currently be used in all circumstances and will be dependent on individual immigration status. For now, the service is only live for EU nationals who have applied for their settled or pre-settled status.

The online service requires the potential employee to view their own Home Office right to work record and subsequently share this information with their employer by providing the employer with a ‘share code’. The Home Office retains an audit record of all the online checks that have been completed by the employer and the employer must retain evidence of the online check and store this securely for the duration of the worker’s employment (and for two years afterwards).

An employer can still choose to conduct the check manually (and in some cases will be obliged to continue to do the checks manually to benefit from a statutory excuse). This is a 3-step process that involves obtaining documentation from the potential employee, checking the authenticity of these documents and making clear copies. The employer must always see the original documentation. Again, copies must be kept securely throughout the duration of a workers employment (and for two years after employment ends). Employers are recommended to follow the Home Office ‘Right to Work’ checklist to ensure that they have carried out the required steps.

Elaine McIlroy (elaine.mcilroy@weightmans.com) and Erin McLafferty (erin.mclafferty@weightmans.com) are immigration experts in the Employment, Pensions and Immigration team at Weightmans LLP and are based in Glasgow.

If you have any questions about these rule changes, or the impact of Brexit on your organisation please do not hesitate to contact Elaine or Erin, or speak to your usual Weightmans advisor.

 

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