Brexit: One year on

Led by legal director of immigration, Rachel Harvey and principal associate, Sian Hoare, this webinar provided a post-Brexit recap, outlined general trends and looked at what is on the horizon for immigration law in 2022.

Free movement in the UK for all EU citizens ended on 31 December 2020. As a result, there have been significant changes to the UK immigration rules and it looks likely that further changes are still to come in 2022.

Post-Brexit recap

On 1 January 2021, a new points-based immigration system replaced the old visa scheme. The points-based system applies to EU citizens and involved amended threshold criteria, as well as the introduction of some new routes. The main change is that, for the first time in decades, EU citizens not already living in the UK before this date are now to be treated in the same way as the rest of the world.

Other changes included the introduction of the Skilled Worker visa which replaced the Tier 2 (General) work visa, as well as a new Graduate visa route which was introduced in July 2021. The Global Talent scheme was also introduced and this allows highly skilled scientists and researchers to come to the UK without a job offer.

Further, it has been announced that physical BRPs are to be phased out by 31 December 2024. The Home Office has been progressing its plans to digitalise immigration status information, with the aim of making information available via the ‘view and prove your immigration status’ service online.

Right to work checks

In order to obtain a statutory excuse against civil penalties, employers need to carry out checks in accordance with UKVI guidance before an employee commences employment. There have been two updates to employer right to work (RTW) guidance in the last six months – the first being on 2 July 2021 and the second on 31 August 2021. The most recent guidance provided more temporary protection for applicants to the EU Settlement Scheme and included further amendments to the List A and B documents. This guidance can be found here - however, it is likely that we will see a further update in Spring 2022.

Since 30 June 2021, RTW checks should be carried out on new EEA or Swiss nationals as an EU passport or national identity card alone is no longer valid proof of someone’s right to work in the UK. There has also been a further extension to the COVID-19 temporary adjusted RTW checking process which allows for checks to be carried out over video call until 5 April 2022.

The Government has confirmed there is no requirement to carry out retrospective checks on those whose checks were carried out using the COVID-19 adjusted RTW checks. In addition, there is no requirement to carry out retrospective RTW checks on EU nationals who commenced employment before 30 June to check their settled status.

Shortage occupations

The pandemic, combined with Brexit, has created the perfect storm for staff shortages in some UK sectors – particularly in relation to food processing and haulage. Other factors such as IR35 and an ageing workforce have also contributed. Low-paid jobs are bearing the brunt of this and are most impacted as they do not meet the salary requirement for sponsorship under the Skilled Worker route.

The government have temporarily relaxed the Immigration Rules to assist the food processing and haulage sectors in the run up to Christmas. However, these temporary measures may be too short-term to attract workers from EU countries and the government must also consider what the long-term solution might be. For further commentary on the introduction of temporary visas, please see our article on this topic here.

Skilled Worker visa and the intra-company transfer route

We have seen an increase in clients using the Skilled Worker route and obtaining sponsorship licences. This in large is because EU nationals now require a visa for entry into the UK. The government has reported that the Skilled Worker route accounts for 61% of work-related visas granted this year and saw the largest increase in visa numbers (up 57%).

However, employers and applicants should be aware that EU nationals are now required to undertake English language tests (like the rest of the world) if they do not possess a degree taught in English or have a GCSE/A-level (or the Scottish equivalent) taught in a UK school. English language tests must be sat with an approved provider at B1 level (speaking, listening, reading and writing) and the availability of these tests varies across Europe. The pandemic has also caused test centre closures and may continue to create disruptions with the emergence of the Omicron variant. TB tests are also required from specified countries and in many countries these have been delayed due the backlog of medical appointments.

The webinar also looked at the Intra-company Transfer visa (ICT) and the reduction in applicants to this route. This is because the ICT route is now less advantageous when compared to the Skilled Worker route. A ‘Call for Evidence’ consultation was launched by the Migration Advisory Committee on 23 March 2021 and it was found that the main remaining advantage of the ICT route is the lack of English language requirement. A new sponsored route (the Global Business Mobility route) is set to be introduced by Spring 2022 which would replace and consolidate the ICT route and the current framework. It would be available to overseas businesses wishing to send employees to the UK or establish a UK presence.

New visa routes for 2022

The UK government have announced their intentions to introduce new visa routes in 2022. These are as follows:

• High Potential Individual route - this route is aimed at attracting highly academic migrants who are seeking to contribute to the UK economy. Successful applicants will be able to enter the UK without a job offer provided they have graduated from a top global university. Further guidance is expected in due course which will shed some light on the criteria needed to enter under this route.

• Scale-up route - Successful applicants must:

• meet the salary requirements;
• demonstrate an annual average revenue or employment growth rate over a three-year period of at least 20%; and
• have a minimum of 10 employees at the start of the three-year period.

The Innovator visa will also be revitalised to introduce greater flexibility and streamline eligibility criteria. As well as this, the Global Talent Network is due to launch in 2022 for talented individuals to work in key science and technology sectors. There are also plans to digitalise the UK border for visitors by 2025 through use of electronic travel authorisations.

We work closely with organisations to understand their requirements and provide advice on the best route to bringing individuals into the UK to suit their needs and those of their overseas workers as well as supporting them with their ongoing immigration needs. Please do get in touch if you would like assistance with your business or personal immigration matters.