The changing landscape of UK business immigration law - 2023 update

Earlier this year, the Home Office published its annual Spring Statement of Changes to Immigration.

Essentially, in what is a difficult balancing act, the UK Government is focused on addressing skills shortages created by the end of free movement of workers from the EU post Brexit. At the same time, the Government aims to fulfil the Prime Minister’s recent pledge to bring down net migration which, recent estimates have shown, has hit 606,000 a year - up 24%.

To illustrate the inherent tension between this pledge and the economic imperative to ease visa rules to promote economic growth, in May the Chancellor, Jeremy Hunt, told business leaders he would work with them to overcome immigration barriers that prevent foreign skilled workers from filling jobs in the UK. He further said that the Government was prepared to adapt policy following discussions with business groups to tackle problems in the “short-term”.

At the same time, Mr Hunt emphasised the Government’s focus was to support UK workers unable to join the labour force, citing parents excluded from taking up jobs due to the high cost of childcare and people with medical problems who have taken early retirement.

The Home Secretary has gone further still, championing retraining of the UK workforce in sectors such as logistics and agriculture, where there is a skills shortage rather than relying on migrant labour.

Here we take a look at the key developments arising out of the Government’s changes to the UK business immigration regime which HR and hiring teams need to be aware of for their businesses.

Welcome changes to the operation of the sponsorship licence regime

Updates to sponsorship licence details such as the replacement of the Authorising Officer, the Key Contact and adding a level 1 user will now be fulfilled immediately as long as the postcode matches. This will free a previous bottleneck which caused frustration for businesses when trying to update such details.

Certificates of Sponsorship allocation for A rated sponsors will automatically renew, replacing the manual renewal requirement.

Changes to the Skilled Worker and Senior or Specialist Worker category

Inevitably and post Brexit, there has been a significant uptick in sponsorship license holders (incorporating the Skilled Worker and Senior/Specialist Worker) which is up 65%, with more than 65,000 businesses now holding sponsorship licences.

The minimum salary requirements for sponsorship has now increased as follows:

• Skilled Worker visa, threshold has increased to £26,200 (up from £25,600).
• Global Mobility Senior and Specialist & UK Expansion Worker Visas threshold has increased to £45,800.
• Graduate trainee threshold up to £24,220.

These thresholds are subject to an additional minimal ‘going rate’ specified in the relevant occupational codes for the job in question.

Many have been raised and it is now worked out at 37.5 hours a week (previously 39).

A pro rata calculation needs to be carried out for anyone working in excess of these hours to ensure the correct salary is stated in certificates of sponsorship, thus meeting both new minimum and going rate thresholds.

For those working variable working hours, these are now calculated based on an average over a period of up to 17 weeks.

New Innovator Founder route

This replaces the previous Innovator and Start-up routes for entrepreneurs looking to start a business in the UK. Essentially, the Government is looking to concertina the two categories.

Hence, there is no longer any requirement to demonstrate initial capital investment funds of £50,000 for new business. Under the previous regime, this requirement made it unattractive for entrepreneurs wanting to establish their businesses in the UK.

However, applicants still need to demonstrate that the business or business idea is innovative, viable and scalable by means of a detailed plan to be endorsed by the Home Office. There must also be evidence of structured planning and potential for job creation as well as growth into national and international markets.

Those pursuing this route must have a key role in the day-to-day management and development of the business. Nonetheless, they can now take up outside employment whilst waiting for their business to start generating income, provided it is skilled to RQF Level 3 (A-level and above).

Furthermore, time spent working in the UK now counts towards settlement, making this new route more attractive to entrepreneurs.

Changes to Global Talent visa route

The endorsement criteria and evidential requirements for the Global Talent visa are also undergoing changes, to reflect the feedback and recommendations from the endorsing bodies for the route. The aim of this, once again, is to make the route more accessible and to increase uptake.

Electronic Travel Authorisation (ETA) scheme

The UK is set to phase in a Digital Travel Authorisation system, much like the US’s ESTA to ensure those entering UK, who do not currently need a visa for short stays, have permission to do so. This is particularly relevant for those hiring, using the current Creative Worker route for productions, or with clients visiting and/or international staff attending business meetings in the UK.

The roll out timetable is as follows:

The ETA will allow people two years to visit the UK as many times as they want for up to six months, or for up to three months on the Creative Worker visa concession. The ETA application will be issued electronically and linked to the individual’s passport.

Right to Work checks

The Government has committed to a crackdown on illegal working, which includes an increase of 50% in raids.

To check a job applicant’s right to work online, employers need their:

• Date of birth
• Right to work share code

British and Irish workers do not have a share code so, instead, businesses need to check the workers’ original documents, for example, their passport or passport card - or use an identity service provider instead.

There will be a Government crackdown on the use of Identity Service Providers (IDSPs):

• Some employers use the services of IDSPs to carry out physical and digital identity verification checks of holders of valid British or Irish passports (including Irish passport cards).
• Home Office guidance now warns against use of IDSPs and that such use does not give employers a statutory excuse against liability for a civil penalty where illegal working is found.

High risk sectors such as hospitality, social services and personal services are particularly vulnerable.

Changes for New Zealand nationals under the UK Youth Mobility Scheme

Changes have been made for New Zealand nationals applying for the UK Youth Mobility Scheme (YMS):

• The eligible age range has been increased from those aged 18-30 to 18-35.
• The visa length has been increased from 2 to 3 years.

Next steps for businesses

There are a number of practical steps we recommend for businesses arising out of the latest changes as follows:

 

Comment

As can be seen, the landscape of UK business immigration law is rapidly changing. It is important therefore that businesses employing migrant workers keep up to date with the latest developments and react accordingly.