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New Immigration Rules Published for Post-Brexit Immigration Routes for Workers

on Friday, 30 October 2020.

Last week the Home Office published a Statement of changes to the Immigration Rules providing further detail on the immigration system that will apply to both EU and non-EU nationals after the Brexit transition period ends on 31 December 2020.

While there are few surprises in the new Rules, with many of the key changes having been announced previously, one key detail that was previously missing was the date that the new rules will take effect. We now know that the new rules, including those governing the Skilled Worker category that will replace Tier 2 (General), will come into force at 9am on 1 December 2020.

Skilled Worker - Welcome Changes from Tier 2 (General)

The main routes for foreign-national workers to come to the UK currently require sponsorship by a 'Tier 2' licensed sponsor. The new Immigration Rules replace Tier 2 (General) and Tier 2 (Intra-Company Transfer) with the Skilled Worker and Intra-Company Transfer categories respectively, but the principle of employer sponsorship will continue.

The new Skilled Worker category will look very similar to Tier 2 (General), albeit with some very welcome changes, which include:

  • 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. Sponsors will still be required to demonstrate that a sponsored worker will be filling a "genuine vacancy", but the highly prescriptive RLMT is no more. In considering whether a sponsor is using the Skilled Worker category appropriately the Home Office may consider:
  • whether the sponsor has shown a genuine need for the job as described by the sponsor;
  • whether the applicant has the appropriate skills, qualifications and experience needed to do the job as described;
  • the sponsor’s history of compliance with the immigration system including, but not limited to, paying its sponsored workers appropriately; and
  • any additional information from the sponsor.
  • Tier 2 (General) is currently subject to an annual cap under which some Certificates of Sponsorship are only available through a monthly allocation process. The new Skilled Worker category will not be subject to a cap on numbers, although slightly worryingly the Explanatory Memorandum accompanying the new Immigration Rules describes the cap as 'suspended' rather than abolished altogether.
  • Unlike Tier 2 (General), some of the requirements to be satisfied under the Skilled Worker category will be subject to a tradeable points assessment. These tradeable points 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.

Employers 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". Therefore, existing Tier 2 (General) sponsors will be able to start sponsoring workers under the Skilled Worker category from 1 December onwards. Employers without a current sponsor licence and which believe they may need to start sponsoring skilled workers after the EU's free movement rules no longer apply in the UK are encouraged to consider applying for a sponsor licence as soon as possible.

If you require specialist legal advice in relation to the post-Brexit immigration system, please contact Tom Brett Young in our Immigration team on 07393 148352, or complete the form below.

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