The Points Based System – is 2021 the year of change?

On 13 July Home Secretary Priti Patel announced further details about the Home Office's new points based system (PBS). This expands on the policy statement initially released in February 2020 covered in our update here.

The New PBS has been described by the Home Office as a welcome simplification of the current system. It ties into the end of the right of freedom of movement for EEA Nationals from 1 January 2021. The system will apply to all European and non-European applicants. The 132 page guidance document can be found here. We have summarised the key points for employers and applicants below.

The new Skilled Worker Visa

The Tier 2 General route will be re-branded as the Skilled Worker route. Applicants will need a job offer skilled at A-level or equivalent from a licenced sponsor, and they will need to speak English to an approved level (50 points). They will then need another 20 points from tradeable categories based on prior education, higher salaries and shortage occupation roles. See our above e-alert for more details. Current holders of Tier 2 General visas will in future extend their visas under the Skilled Worker route.

Significant changes which will be introduced on 1 January are:

Removal of the Resident Labour Market Test. Employers will welcome the removal of this complicated and time consuming requirement to advertise roles to the UK resident workforce prior to sponsoring a visa. This simplification will speed up the visa application process for sponsors by a month. Sponsors will still need to fill a genuine vacancy, and met the skill and salary thresholds required for that role.
Removal of the Tier 2 General Restricted Cap. A key change is the removal of the monthly cap on the number of restricted Tier 2 General visas issued by the Home Office (restricted visas are typically issued to new hires to a business). This means there will be no limit on the number of skilled workers who can come to the UK under the New PBS. This change will again speed up the visa process by up to a month enabling quicker recruitment in this area.
More flexibility for in-country switching between visa routes. From 1 January the Home Office will allow most migrants to apply to switch from one immigration route to another category from within the UK if they meet the criteria of the new routes. This welcome change will assist sponsors and visa holders alike - it will save costs, minimise disruption and enable visa holders to continue to work for their sponsors from within the UK during the application period. This switching concession will not be available to visitors to the UK.
Tier 2 General sponsor licences will be automatically converted to Skilled Worker licences. Sponsors' Tier 2 General licences will be automatically switched by the Home Office to a Skilled Worker licence which matches the conditions of their existing licence. Sponsors will not need to take any steps to do this.
Removal of the "cooling off period". The cooling off period (which prevents most Tier 2 visa holders from returning to the UK in this category for 12 months following the termination of their visa) will no longer apply to Skilled Worker Visas. This will allow Skilled Workers visa holders to apply to return to the UK immediately after their visa expires. This will be welcomed by all users of the PBS.

The continuation of Tier 2 ICT Visas

Tier 2 ICT visa transfers enable businesses to transfer existing skilled employees to the UK for a time limited basis. This route will not change substantially under the New PBS. Roles still be required to be skilled at degree level with the existing minimum salary requirements of £41,500 or the SOC code level (if higher) applying. Unlike under the Skilled Worker visa applicants will still not be required to demonstrate that they can speak English as part of the application and the route still will not lead to permanent residency in the UK.

Applicants require 12 months prior group service. In a change to the current rules, the released guidance suggests that all applicants, including those who will earn over £73,900 a year, will need to have 12 months prior service with a group company immediately before applying. This removal of the service requirement for higher earners will be problematic for newer hires. They will instead need to look to the Skilled Worker route.
Change to cooling off period. Whilst the 12 month cooling off period will still apply to Tier 2 ICT visa holders it will be relaxed and more flexible for shorter-term assignments. The rules will instead allow ICT visa holders to hold entry clearance or leave to enter or remain for up to five years in any six-year period, without the cooling off period applying. This concession is good news for sponsors who want flexibility for shorter term transfers to return to the UK for assignments in future without the cooling off period applying.

European Nationals

Don't forget the EUSS scheme. All EEA nationals who arrive in the UK before 31 December 2020 need to register under the EUSS to preserve their rights to remain in the UK. This application must be made by 30 June 2021 but we recommend it is submitted as soon as possible.
The position from 1 January 2021. From the start of 2021 all EEA nationals will need to apply for a visa under the New PBS to come and work in the UK.
The end of in person biometric appointments. From 1 January most EU applicants will not need to attend a visa application centre to enrol their biometrics but will provide face scans via a smartphone app. This is part of the longer term strategy to move to self-enrolment for most applicants for most visa routes.

Other changes

Omission of some routes from the guidance. The guidance does not cover certain routes including the Tier 1 Investor and Sole Representative Visa. Whilst this is to be clarified, it is understood that these routes will not be impacted by the new PBS and will continue to operate in their current way.
New Highly Skilled Worker route. The Home Office has said that a standalone route outside of the New PBS will be opened for a small number of highly skilled workers without a job offer. This route will not open on 1 January 2021. Whilst the devil is in the detail, this route may offer the flexibility of the historic highly skilled migrant programme and complement the new Global Talent, Start-up and Innovator visa routes which have not been well used since they were introduced due to their complexity. We await the details with interest.
New Graduate Route – summer 2021. The graduate route will allow international students to remain in the UK to work for two years (or three years for PhD students) after graduating. This route resembles the former post study worker visa. Graduates will not need to be sponsored. This will be a very attractive and flexible route for employers who will not be required to pay the fees linked to Tier 2 visas under this route.
Introduction of the Electronic Travel Authorisation (ETA). Following in the footsteps of other countries such as the USA, the UK will introduce an ETA in stages through to 2025 for those who do not need a visa to come to the UK. It will be a light-touch process.
Increase to the Immigration Health Surcharge (IHS). From 1 October the IHS will increase from £400 to £624 per visa year per applicant. The guidance has announced an exemption from this charge for those under 18 or NHS, care workers and wider health workers.

This guidance note sets out useful additional information about the New PBS. Further detailed information will be released later on this year and will hopefully fill in some of the gaps in the current guidance. If you have any questions about the New PBS and how this will apply to your workforce please contact your current immigration adviser.