Legal briefing | Brexit, Immigration, Employment |

Post-Brexit Points-Based Immigration System to open 1 December 2020

Overview

The Government's new points-based immigration system was widely expected to take effect from 1 January 2021, following the end of the Brexit transition period. However, the Government has now announced that the new system will open for applications on 1 December 2020.

What are the key impacts of the new regime on employers?

In summary, the key impacts for employers are:

  • The current employer-sponsored Tier 2 visa routes will be replaced by the new Skilled Worker and Intra-Company Transfer (ICT) routes with effect from 1 December 2020.

  • Under the new regime, employers will need to hold an immigration sponsor licence to sponsor the visas of new EU employees who arrive in the UK from January 2021 onwards. A licence will also be needed for existing EU employees who transfer to the UK from January 2021 and, in some cases, for EU employees coming to work in the UK for short periods. This will result in significantly increased costs and administration for employers.

  • Businesspeople will no longer be able to travel as freely as they do now between the UK and the EU. While short business trips will be permitted, these will be subject to strict restrictions and, in some cases, a sponsored work visa will be required. As set out above, this will require the employer to hold an immigration sponsor licence.

  • Employers will need to ensure that existing EU national staff already working in the UK as at 31 December 2020 register under the Government’s EU Settlement Scheme by 30 June 2021 to be able to continue doing so.

When can employers apply for a sponsor licence?

Employers can apply for sponsor licences now and any licences granted under the current rules will remain valid in the new regime. Employers who do not already hold a sponsor licence are encouraged to apply as soon as possible to avoid future delays with recruitment.

When can employees start to apply for visas under the new regime?

Under the new regime, the key new work visas are the Skilled Worker and the ICT routes. These will open from 9am on 1 December 2020. EEA and Swiss nationals will continue to be able to rely on their free movement rights until 31 December 2020 so will only be granted status with effect from 1 January 2021 under the new regime.

EEA and Swiss nationals who arrive by 31 December 2020 are covered by the EU settlement scheme which is already open. Applicants can apply now for settled or pre-settled status and must do so by 30 June 2021.

Existing Tier 2 visas obtained under the current rules will remain valid but extension applications submitted from 1 December 2020 onwards will be considered under the new regime.

How will employer-sponsored visas change?

The new Points-Based Immigration system will cover both non-EEA and EEA nationals going forward with new routes replacing the existing Tier 2 (General) and Tier 2 (ICT) visa routes from 1 December 2020.

New Skilled Worker route: the Tier 2 (General) visa category will be replaced by a new Skilled Worker visa category, which will cover individuals coming to the UK with a job offer from an approved sponsor employer. Employers will need to be paying a minimum salary of at least £26,500 or the "going rate" for the particular role set by the Home Office.  Employers familiar with the Tier 2 (General) route will note the following helpful changes:

  • the resident labour market test requirement to advertise for a minimum of 28 days will be removed;

  • the 20,700 annual cap on numbers will also be removed;

  • the 12-month 'cooling off period' requiring applicants to wait 12 months outside the UK before reapplying under Tier 2 will no longer apply;

  • the maximum six-year cap on the time spent in the UK under the Tier 2 (General) will be lifted and there will be no limit on the time an employee can spend on a Skilled Work visa; and

  • employees in the UK on an ICT visa will be able to switch to a Skilled Worker visa without having to leave the UK.  

New ICT rules: the ICT route allows companies to transfer staff from linked overseas offices to work in the UK temporarily. This route will remain under the new regime but with some key changes:

  • the 12-month cooling off requirement will be removed and replaced with a new cap of up to five years in any rolling six-year period or up to nine years in any 10-year rolling period for high earners;

  • the high earner threshold under the ICT route will change to £73,900, a reduction from the current rate of £120,00; and

  • individuals may be able to switch to the new ICT route within the UK if they hold a Tier 5 or Tier 2 (General) visa – this is currently not permitted.

See also our briefing: Post-Brexit immigration – the new points based system for more details of the new regime.

How can you prepare?

If you are not already a licenced sponsor, consider whether you need to apply for a licence under the new regime. If you are already registered, it is worth reviewing your licence to ensure the licence is fully up-to-date and also covers all linked entities across Europe, which is necessary to facilitate transfers from those linked entities in future.

We have been working with clients to help them prepare including assisting with new licence applications, updates to existing licences, mock compliance audits as well as strategic advice on budgeting and planning towards the increased costs and administration associated with having to obtain visas for EU nationals.

If you would like to discuss the impact on your business, please get in touch.