Points-Based Immigration System - What’s in Store For Universities?

Most universities have significant numbers of international staff and students, so many in the sector will have been anxious to see what further information about the future immigration system this document contained. Therefore, it was quite disappointing to see that there were very few new details contained in the statement.

However, when taken with the drip-feed of briefings, announcements and policy statements over the last nine months or so, we now have a pretty good idea of what the new immigration system will look like.

EEA Nationals

Most universities will already be used to navigating the complexities of the Immigration Rules and Home Office Guidance and so – as we’ll see below – universities will be amongst those struggling to identify many revolutionary changes from the existing system.

However, the new rules represent a huge change for citizens of European Economic Area countries (other than Ireland) who, from 1 January 2021, will need to be granted permission to come to the UK to work, study or join family here.

According to the latest Higher Education Statistic Agency figures, 18% of academic staff and 7% of non-academic staff in universities have an EU nationality, so while the rules and processes involved won’t be radically different, the volume of work required by university HR teams is likely to increase significantly.

A couple of points to note regarding grants of immigration to EEA nationals under the new system:

• EEA nationals granted status under the EU Settlement Scheme are only able to formally prove their status via an online service. This will also be the case for EEA nationals granted status under the new system who will not be issued with physical documents or endorsements in their passports.
• Employers, landlords and public service providers will be permitted to continue accepting EEA national passports and identity cards as evidence of their immigration status until 30 June 2021. However, we do not yet know whether Tier 4 sponsors will be permitted to accept those documents in order to satisfy their duty to conduct 'right to study' checks on their students. From 1 July 2021, any EEA national who needs to be prove their status in the UK will do so via an online service.

Changes to the Student Rules

Under the new system Tier 4 will be no more, but apart from a change in name, not much is expected to change. There is welcome confirmation that there will be no limit on the number of international students who can come to the UK, and that the Government will actively "seek to increase" international student numbers in higher education.

The new student route will "build on" the current Tier 4 arrangements which – we are told – are working well. We are promised improvements which will make the route "more streamlined for sponsoring institutions and their students, creating clearer pathways". Similar promises have been made previously, but we still don’t have much detail.

The period of time in which students can submit their initial visa applications before their course commences will be increased from three months to six months, bringing that period in line with the validity of the Confirmation of Acceptance for Studies they are issued.

Another welcome change is that the limit on the period of time a student can study at postgraduate level is to be removed, although it appears that an academic progression requirement will still apply in those circumstances.

The current attendance monitoring duties for higher education providers (HEPs) are to be replaced by requirements to monitor and retain records in relation to the academic engagement of their students. It remains to be seen whether this will result in any meaningful changes to the ways universities are expected to monitor their international students.

EEA students will be added to the list of students benefitting from the 'differentiation arrangements', whereby students from some countries do not need to submit as many documents with their visa applications.

Additionally, higher education providers with a track record of compliance will be able to self-assess academic and English language ability, which should result in even greater numbers of students not needing to submit as many documents with their visa applications.

Under the heading "short-term study", the statement explains that the Government "will permit study of up to six months under the standard visit route", bringing study on courses of six months or less within the visitor rules. The existing short-term study route will therefore just cover study on English language courses lasting between six and 11 months.

Graduate Route to Be Introduced Next Year

We already knew that the Government planned to re-introduce a post-study work visa, something that was formally announced way back in September 2019.

We now know that that new category will go by the name of 'Graduate Route'. The Further Details Statement confirms that bachelor’s and master’s degree graduates will be able to apply for a two-year extension of stay that will allow them to work and look for work at any skill level.

For PhD students the extension of stay will be granted for three years. Unsurprisingly, the existing Doctorate Extension Scheme will be closed at the point the Graduate Route is introduced.

The route will apparently be 'points-based' (as will the student route), although it appears that points won’t be tradeable making the points requirement rather pointless.

The main points to note about the new category are:

• Applicants must have valid leave as a student (or Tier 4 (General) Student) at the point of application.
• Applicants must have successfully completed a degree at undergraduate level or above with a UK Higher Education Provider.
• Only graduates from Higher Education Providers with a track record of compliance (under the Tier 4/Student sponsorship rules) can apply.
• Applicants must have completed the entirety of their degree in the UK except for permitted study abroad programmes or when distance learning has been necessary due to coronavirus.
• There will be no additional maintenance or English language requirements for this category.
• Time spent in this category will not lead to indefinite leave to remain.

Welcome Changes to the Sponsored Worker (Tier 2) Route

The overwhelming majority of the Further Details Statement is devoted to the new Skilled Worker category, which will effectively be a continuation of the current Tier 2 (General) category, albeit with some very welcome changes:

• The minimum skill level requirement will be reduced from level 6 on the Regulated Qualifications Framework to level 3, opening up sponsorship to a far wider range of roles.
• The Resident Labour Market Test (RLMT) will not be a feature of the new route. The statement advises that "sponsors must still be seeking to fill a genuine vacancy", but does not elaborate on how this will be assessed. At this stage we might speculate that sponsors will simply self-certify that the vacancy is genuine, but further guidance is needed from the Home Office on this point.
• Tier 2 (General) is currently subject to a cap on the number of new migrants who can be sponsored under that category each year, although since the cap was first introduced in 2010, various exemptions have been introduced, including an exemption for all roles at PhD-level. The new Skilled Worker category will not be subject to any cap on numbers.
• As with Tier 2 (General), some of the requirements of the Skilled Worker category will be subject to a points assessment, but unlike under the current system some of these points will be tradeable. The only tradeable points though will relate to the minimum salary requirement, where a lower salary threshold will apply if the individual holds a relevant PhD, and an even lower threshold will apply if they hold a relevant STEM subject PhD, or the job in question is on the Shortage Occupation List, or the applicant is a new entrant to the labour market.

Universities which already hold sponsor licences covering the Tier 2 (General) category will "automatically be granted a new Skilled Worker licence […] with an expiry date consistent with their current licence, and receive an appropriate allocation of Certificates of Sponsorship".

Other Routes and Changes Applying to All Routes

One change to the immigration system which is clarified in the Further Details Statement and which will be welcomed by employers and migrants alike will be the relaxed rules on 'switching' immigration categories from within the UK. For example, at present someone here with a Tier 5 (Youth Mobility Scheme) visa cannot switch into Tier 2 or any other work-based immigration category and so even if a UK-based employer was prepared to sponsor them they would need to leave the UK in order to apply for the required visa in order to take up that job. The Government has now confirmed that switching out of the Youth Mobility Scheme will be possible under the new rules.

The Immigration Skills Charge will continue for the Skilled Worker category and the statement confirms that this and the other high costs borne by users of the immigration system will continue to apply as they do now. The Government continues to aim for an overall reduction in net migration (although thankfully have not attached a specific target to that ambition) and their view appears to be that the best way to achieve this is to price some employers and migrants out of the equation. An increase to the Immigration Health Surcharge from £400 per year to £624 (£470 for students) will take effect on 1 October.

Changes to the Tier 1 Exceptional Talent (relaunched as Global Talent), Start-Up and Innovator categories have already been implemented and no further substantive changes to those categories are expected when the new system launches. It does not appear from the statement that there will be any significant changes to the arrangements for sponsored researchers under the Tier 5 Government Authorised Exchange category.

In line with recommendations made by the Migration Advisory Committee in their report on the points-based system and salary thresholds, the Government will introduce a capped unsponsored worker route aimed at a small number of the most highly skilled workers. There is no timescale given for the implementation of such a category other than it being introduced "beyond January 2021" – but the absence of detail suggests it is probably some way off.

On the whole most of the changes are to be welcomed, although whether they warrant being packaged as a 'new immigration system' is somewhat debateable. Certainly, universities will be grateful for any reduction in the bureaucratic burden when sponsoring workers and students, because there is bound to be an increase in the amount of sponsorship activity as a result of EEA national staff and students requiring visas.

A version of this article originally appeared in University Business in August 2020.

For further information about immigration issues facing Higher Education Institutions please contact Tom Brett Young of our immigration team on 07393 148352, or fill out the form below.