Immigration Update | February 2022

The UK-India trade deal: the immigration benefits

The UK and India signed new trade and investment deals that aim to pave the way for a future UK-India free trade agreement. Among the details and promises of deals, investments and job creation, there was a separate and specific reference to Immigration.

The migration and mobility partnership agreement will allow young Indians to live and work in Britain for up to two years without needing a job offer in a significant post-Brexit liberalisation of the immigration system. Easier access to UK visas for Indian citizens is likely to be one of the country’s major demands in future trade talks.

The pact will provide enhanced employment opportunities for 3,000 young Indian professionals annually, in return for India agreeing to take back any of its citizens who are living illegally in the UK.

The Tier 5 Youth Mobility visa has been updated to add India and Iceland. The visa will be open to up to 3,000 Indian graduates aged 18-30 to come to the UK each year and seek work, staying for up to 24 months. Young Britons will be able to do the same in India.

By expanding the Youth Mobility visa scheme, it provides great opportunity to hire workers and have a good assessment of skillset, compatibility etc. before committing to the longer-term Sponsorship visas. In addition, while the visa may be for a maximum period of 24 months, holders of the Tier 5 Youth Mobility visa are allowed to change visa status from inside the UK to move onto other routes to permanent residency.

For information, the countries participating in the Youth Mobility Visa Programme and the allocations permitted are as follows:

• Australia: 30,000 places
• New Zealand: 13,000 places
• Canada: 6,000 places
• Japan:1,500 places
• Monaco: 1,000 places
• Taiwan: 1,000 places
• Hong Kong: 1,000 places
• San Marino: 1,000 places
• Iceland: 1,000 places
• India: 3,000 places

While the precise application process may vary depending on country of nationality, it is a visa route that should be used where possible because of the relative simplicity and the benefit to employers looking to hire in an increasingly competitive market.

Home Office rule changes to the shortage occupation list

Since the start of the Covid-19 pandemic, the government has seen an increase in the need for healthcare professionals in the UK.

The shortage occupation list currently has an extensive list of healthcare roles that migrant workers can apply to enter the UK under. However, the Home Office is changing the Immigration Rules to allow for more healthcare roles to be available and more opportunity for migrant healthcare workers to come to the UK.

Pharmacists, laboratory technicians, senior care workers and nursing assistants are among roles that have been added to the list. Health services and public health managers and directors; residential, day and domiciliary care managers; and health professionals not elsewhere classified, such as audiologists and dental hygiene therapists, have also been added, as have modern foreign language teachers.

The new roles have opened up the talent pool from all over the world but also the employee pool for employers.

This also builds upon the new points-based immigration system that the government has introduced. Individuals applying to come to the UK under a skilled worker visa must obtain '70' points to be considered eligible. However, a role on the shortage occupation list is worth 20 points, which means that with the required level of English, employees can easily meet the 70 points. This opening means that the pool of potential employees for employers has become much wider. Potential employers can now look at a larger pool of talented individuals to fill their vacancies. This will also give employers the potential to expand their sectors and the talent that they hire.

New Skilled Worker application system will use the ID checking app for non-EU nationals

Until recently, submission of a Skilled Worker visa application via the UK immigration account was made available to those who hold EU citizenship only. Fortunately, due to the plan for the immigration system to become more digital, this has now been expanded to those of all nationalities who are making an in country Skilled Worker application.

UKVI account submission process

The creation of a UK Visas and Immigration (UKVI) account is required first, and the applicant will be prompted to enter their current biometric residence permit (BRP) card details as well as other personal identification details in the process. The applicant will then have to download the UK Immigration: ID Check app. The applicant's biometrics will be stored and provided on the app, which eliminates the need to attend an in-person appointment.

Once the account has been set up, the application will need to be drafted. Normal procedures for a certificate of sponsorships and other legal documentation requirements remain the same. Once the application is prepared, it can be submitted as per usual procedure. The applicant will then have to upload evidence onto their account, linking it to their application, as per the Immigration Rules.

Pros and cons

There are both positives and negatives that follow the introduction of this system.

One of the main positives is that it removes the need for the applicant to attend a biometric appointment. This saves time for the applicant, as it no longer means that a decision can only be made within the selected processing time from the date of the biometric appointment. Instead, the applicant can submit their supporting evidence as soon as they have it, and provided nothing else causes delay, the processing time will start from then.

Unfortunately, as stated above, this has not been so widely made available to include those who are not of EU nationality and are applying for entry clearance. Furthermore, with regards to those who do have EU nationality, if their EU passport has been issued by a non-EU country, the system will redirect them to the application form that requires that they attend a biometric appointment. Also, if they have a dependent child, an application via the UKVI account and the UK Immigration: ID Check app' is not available. A separate account will have to be created for dependent partners.

New Scale-Up visa to launch in spring

In the Home Office's "New plan for immigration: legal migration and border control strategy statement", it confirmed that a new unsponsored visa route will be introduced to attract the brightest and best to the UK.

The new Scale-Up visa category launches in spring 2022 and is intended to assist businesses to access talent from around the world. The government hopes that the visa will attract the elite and the best talent in academia, science, research and technology, as part of its efforts to draw the brightest individuals to the UK. This new route will differ from the Skilled Worker visa in that sponsorship for this category will not be required.

Who can apply?

The Scale-Up visa will be available to individuals with a high-skilled job offer from a "qualifying scale-up business" who pass the language proficiency requirement and have a salary offer of at least £33,000.

Qualifying scale-up businesses need to demonstrate that they have over a three-year period an annual average revenue or employment growth rate of more than 20% and, at the start of the three-year period, have a minimum of 10 employees.

Qualifying individuals will be able to apply for the fast-track process and due to the nature of the route, individuals will also have the benefit of moving between employers.

Questions and answers

What is the difference between a scale-up visa and the skilled worker visa? The main difference between a scale-up visa and a skilled worker visa is that a scale-up visa does not require sponsorship and therefore there is no requirement for a sponsor licence.

What is the purpose for the scale-up visa? The government's aim is to attract top talent from around the world to the UK in an efficient process.

Does the scale-up visa lead to settlement? This is yet to be confirmed.

What do we know about the proposed global mobility visa?

The Home Office has announced that a new Global Business Mobility route will launch in Spring 2022. In essence, the route will combine the Intra Company Transfer (ICT), the ICT Graduate, the Sole Representative of an Overseas Business visas and the Temporary Work–International Agreement visa into a single route. This new Global Business Mobility route will enable overseas businesses to temporarily send workers to the UK in order to establish and expand their businesses.

Overseas businesses

This new route will be opened to overseas businesses wishing to send employees to the UK. The Skilled Worker visa will remain open to UK businesses that wish to hire a migrant worker to fill a vacant role in the UK.

The Global Business Mobility route will have five different categories which are defined by the nature of the UK assignment:

• Senior or specialist workers. These individuals will be required to work at a UK office of an overseas business;
• Graduate trainees. These are individuals who are undertaking a UK placement as part of a structured training programme;
• Service suppliers. These are individuals travelling to the UK to deliver a service in line with a UK trade commitment (for example, the General Agreement on Trade in Services or GATS);
• Secondment workers. These are individuals who are on secondment to a UK business for a specific reason; and
• UK expansion workers. These are individuals who will be specialist or senior employees who are on assignment as part of the UK expansion of the overseas business.

New rules

While specific immigration rules have not yet been published for this route, according to Migration Advisory Committee (MAC): “The Global Business Mobility route will include the existing provisions for intra-company transferees, subject to this report’s recommendations; the existing arrangements implementing the UK’s trade commitments in respect of contractual service suppliers and independent professionals; any new provision to accommodate import and export-related secondments; and finally (and most importantly for this section), any arrangements for employees of an overseas business assigned to the UK to establish a branch or subsidiary of that business. Existing rules which restrict the route to a single representative per sending business will be relaxed depending on, for example, the size of the investment in the UK.”

If the UK Visas and Immigration take into consideration MAC's recommendations on the new route we could likely see the following slight changes;

Intra-company transferees

The Intra-company Transfer visa route temporarily enables an overseas business to send employees to their UK entity or branch.

As under the current route, the role will need to be highly skilled, meeting the RQF (Regulated Qualifications Framework) Level 6 requirement. Applicants also need to have worked for their employer (who is linked to the UK sponsor) for at least 12 months, unless they will earn £73,900 or more in the UK.

There will continue to be no English-language requirement, but applicants will need to be paid at least £42,400 per annum – this is an increase on the current minimum salary requirement of £41,500. This subcategory will still be subject to the Immigrations skills surcharge.

An interesting assumption is that, following a recommendation by the MAC, the "senior or specialist worker" category of the Global Business Mobility visa route could lead to settlement, without the need to switch to another route (like the Skilled Worker visa). Similarly, time spent in the senior or specialist worker category of the Global Business Mobility visa route should count towards settlement even if the worker switches to another route.

Graduate trainees

This subcategory is unlikely to change in relation to requirements. It will be rebranded as the "graduate trainee" category of the Global Business Mobility visa route.

The employment period abroad (of three months) remains the same. However, interestingly, the salary requirement could reduce to £20,480 (currently £23,000).

Contractual service suppliers

This subcategory is used by workers who are contracted to do work in the UK that is covered by international law or treaty and is likely to remain unchanged. The route will be rebranded as the "service suppliers" category of the Global Business Mobility visa route.

Existing arrangements implementing the UK’s trade commitments in respect of contractual service suppliers and independent professionals travelling to the UK to deliver a service will remain.

Import and export-related secondments

A new subcategory under the Global Business Mobility route will include the "secondment workers" category that can be used by overseas businesses to send teams of workers to undertake a secondment in relation to a high-value contract with a UK firm for goods or services. It is likely there will be a maximum of 12-months initial grant of visa with the possibility of a single renewal.

It should, however, be noted that MAC has recommended the contract value will need to be in excess of £50 million and the overseas business will need to have been operating for at least 12 months.

Employees of an overseas business assigned to the UK to establish a branch or subsidiary in the UK

Business wishing to send a senior employee to the UK in order to establish a commercial presence for the company in the UK have the option to use the sole representative of an overseas business route. The sole rep will be rebranded the "UK expansion worker" category of the Global Business Mobility visa route.

The current requirements remain the same in relation to this subcategory. However, the MAC's view is that the new individual subsidiary visa will be limited to a two-year period, with subsequent entry to the UK using alternative routes for visas (and allowing in-country switching to such routes). Justification of this change is the fact that the aim of the route is to allow for the legal establishment of a business in the UK which should take no longer than 2 years. MAC stated (page 97): “Allowing people to stay for more than 2 years raises the concern that the route could be abused as a way for people to obtain UK residence and work authorisation, despite not making progress towards setting up a viable business.”

While the sole rep route was limited to one individual per company, the new route allows for a business to send a team of workers to establish the subsidiary under a new sponsored Team Subsidiary visa that is to be trialled over a two-year period. It is suggested that the overseas company will need to apply for a type of sponsor licence that will evidence their overseas presence, etc. and will be used to sponsor the team members coming to the UK to establish their subsidiary in the UK. The Team Subsidiary visa is to be limited to a two-year period, with the ability to switch to another route. The team can be one to five members and at least one member of the team will need to meet the criteria of the current sole Representative of an Overseas Business visa route, while the other team members will, at a minimum, need to meet the criteria of the Skilled Worker route.

2022 promises to be a year of change with the UKVI set to bring in new categories, update existing categories as well as look at digitising their processes and decisions. Please do get in contact if you have any questions or concerns in relation to UK immigration or the upcoming changes.

Fundamental changes to right-to-work verification will be critical for all employers

All employers in the UK have a legal obligation to ensure they are not employing individuals who do not have the right to work (RTW) in the UK. This legal obligation is set out in Section 15 to 25 of the Immigration Asylum Nationality Act 2006, Section 24B of the Immigration Act 1971 and Schedule 6 of the Immigration Act 2016.

A right to work check previously consisted of checking an original document that is deemed acceptable for demonstrating permission to work or conducting an online right to work check (for certain individuals).

A RTW check must be done before the individual is employed to ensure they are legally allowed work in the UK. At the latest this should be the morning of their first day of employment. From 6 April 2022 right to work checks will change. Employers will no longer be able to accept physical documents (save for British nationals, but more on this below) as evidence of the RTW and must instead use the new online verification process for anyone with a visa.

From 6 April, to conduct an online check, an individual will need to give you their prospective employer an access code by providing their details online. On receipt of this code, an employer will need to input the code and individual's date of birth here. The share code is valid for 30 days and, if the check is not completed within this time, a new code will be required. Employers should take a clear copy of the online profile confirming they have the right to work in the UK and make sure the photograph resembles the individual being hired (at present, they can do this via a video call, if the office is still closed, but this concession is due to end in April 2022, at which point the check will need to be carried out in person). Businesses will not need to undertake retrospective checks for anyone employed prior to 6 April 2022 using physical documents.

British and Irish nationals

In addition, changes are being implemented regarding RTW checks for individuals who do not have visas, such as British nationals. The Home Office will now enable employers to use certified identity service providers (IDSPs), once available, to carry out digital eligibility checks on behalf of British and Irish citizens who hold a valid passport (including Irish passport cards).

The introduction of the use of identification document validation technology (IDVT), from 6 April 2022, will allow for British and Irish citizens who hold a valid passport (including Irish passport cards) to be able to upload images of their personal documents via a certified IDSP to verify their identity remotely and prove their eligibility to work or rent, instead of presenting physical documents or the need for employers to examine these documents.

The Home Office and Disclosure and Barring Service are working with the Department for Digital, Culture Media and Sport (DCMS) as it develops proposals for new legislation to establish the UK Digital Identity and Attributes Trust Framework (UKDIATF). This framework will set out the rules and standards for organisations to follow in order to carry out secure, trustworthy, and consistent digital identity checks.

On 17 January 2022, DCMS made an announcement that sets out in detail the next step in the development of the UKDIATF. At the time of writing, there are currently no certified providers and, therefore, employers are not able to use this service, but this will change in the near future and so employers should be aware of these forthcoming changes in RTW verification for British and Irish nationals, but continue to take physical copies of documents in the meantime. It is anticipated that organisations certified to carry out the checks for employers will charge a fee for this service, which is something of which employers should also be mindful.