First published in the International Employment Lawyer.
Another year sees yet more changes to the UK's "new" points-based system which was only introduced in December 2020. Is this simply a Home Office re-branding exercise or are the changes more substantial?
Right to Work – 6 April 2022
In a further shake-up of the UK's right to work rules, from 6 April 2022 companies will need to carry out online right to work check on new hires or employees who apply for a visa extension where those employees hold a biometric residence permit (BRP) card, biometric residence card or frontier worker permit. From 6 April manual (physical inspection of documents in-person or by video under the COVID concession in place until 30 September 2022) provides no defence to illegal working or a company’s compliance with its sponsor duties. Manual checks for everyone else (including British nationals) will continue. If you haven't done so already, do review and update your onboarding policies accordingly.
The ICT visa becomes a Global Business Mobility visa – 11 April 2022
This appears to be a rebranding exercise. The new GBM visa, enabling transfers of group employees into the UK to a UK trading company holding a sponsor licence still, in most respects remains the same (e.g., no English language requirement, no settlement, no advertising and minimum skills at graduate level). The main change is a raise in mandatory base salary for transfers from £41,500 to £42,400. This salary can continue to include some allowances. If you are a user of the ICT route, you should review the salary change alongside your existing salary banding and consider whether you need to alter salaries more broadly.
The introduction of new routes
The Home Office has introduced some new visa routes you should be aware of:
- High potential visa – 30 May 2022: A personal visa for graduates from the 50 top ranked "elite" universities with degrees awarded in the last five years. The visa will be granted for 2 years and allow flexible work including self-employment and moves between employers. It requires a minimum level of English and maintenance funds. Beneficially for companies, it will not attract sponsorship costs (including the immigration Skills Charge of up to £1,000 a year). The main downside is time spent on the visa will not lead to settlement. In an increasingly competitive global job market, will graduates be happy with this or push for a visa under a sponsored route, allowing them to settle permanently in the UK after five years?
- Scale up visa – 22 August: Applicants need a skilled job offer from a "scale-up" business which has registered as a scale-up sponsor. To qualify, the company will need revenue or headcount growth of at least 20% over three years and a minimum of 10 employees at the start of that period. After six months sponsorship the employee becomes unsponsored. Whilst an appealing looking route, it remains to be seen how many companies will meet these strict conditions in the current economic climate. Even if you do, would you want to invest time and money into someone who, after six months, could freely move to your competitor?
The Home Office continues to move online
After two years of pandemic delays and impact on visa processing, the Home Office continues to digitalise its service. For example, European nationals now have the chance to apply for their visas using the IDV App rather than at an in-person appointment. This has understandably proved popular given the restrictions on travel we have seen across Europe.
From an employer's perspective the IDV App does lead to two important changes. Firstly, it does not issue a BRP card – right to work (or rent) is checked through a Home Office portal. Secondly, the applicant is not automatically issued with a national insurance number. This means that your payroll team will need to arrange this when onboarding.
We expect the Home Office to continue to expand the use of the App to other routes over the next 12 months.
Increased use of claw back
A further trend is the increased use of clawback clauses for visa costs through which employers try and discourage sponsored employees from moving sponsors. These must be carefully drafted, for example, excluding company only costs such as the skills charge and COS fee, and with an eye to reducing the payback obligation over time so that they are not considered to be a penalty clause (which is unenforceable). With Home Office fees alone adding up to £20,000 or so for a five year visa for a family of four, this is a trend we are sure will continue.
Vikki Wiberg is a Senior Counsel in Taylor Wessing's Employment, Pensions and Mobility Team.
