The new immigration system for the UK
Authors: Louise Haycock, Jennifer Simpson and Aisha Shahid, Fragomen
The Brexit transition period is due to end on 31 December 2020, with no indication that this will be extended in light of the coronavirus (COVID-19) pandemic. European nationals who arrive in the UK from 1 January 2021 will require immigration permission to work here.
A new immigration system will apply from the new year, and this will be used by Europeans and non-Europeans alike. It is set to be tested in late 2020.
What do the changes mean in practice?
From January 2021, free movement rights will end for European nationals travelling to the UK and vice versa. New European and non-European entrants to the UK will be treated equally and subject to the same immigration rules.
This means that European entrants will need to pay the same government application fees paid by non-European migrants at present, and they will need to factor in visa processing times prior to travel.
In line with the Migration Advisory Committee's (MAC) recommendations, the Government is proposing two main points-based routes for permission to work in the UK:
- A skilled worker visa for people with a job offer (in essence, an amended tier 2 (general) category).
- A highly skilled work visa for people without a job offer, which could potentially allow self-employment. UK Visas and Immigration intends to consult on this during 2021 and it is not anticipated that this category will be in force until at least 2022.
No significant changes are proposed for the tier 2 (intra-company transfer) category, although it may become a less popular choice in light of the amendments to the tier 2 (general) category.
Skilled worker visa: How will the new points-based system work?
Under the new system, EU and non-EU citizens who want to live and work in the UK from 1 January 2021 must gain a minimum of 70 points to be eligible for a UK visa.
Two-stage test
The new system involves a two-stage test.
Test 1
If an applicant meets all the requirements under test one, they will receive the maximum 50 points.
Test 2
Applicants must then score at least 20 points under test two to receive a minimum total of 70 points. The benefit of this stage is that it allows applicants to trade characteristics to benefit from a salary that is lower than the minimum threshold or potentially the "going rate" in their field.
The criteria in detail
Some criteria are mandatory while others are "tradeable".
| Criteria | Points | Tradeable? |
|---|---|---|
| Test 1: All of the following criteria must be met to be eligible to apply for a visa (so the individual needs to score all 50 points) | ||
| Job offer by an approved sponsor | 20 | No |
| Job at the appropriate skill level of recognised qualification framework (RQF) level 3 or above (equivalent to A-level) | 20 | No |
| English language ability (at the required level) | 10 | No |
| Test 2: The following criteria are tradeable and applicants must score at least 20 points | ||
| Salary of £20,480 (minimum) - £23,039 | 0 | Yes |
| Salary of £23,040 - £25,599 | 10 | Yes |
| Salary of £25,600 or above | 20 | Yes |
| Job in a shortage occupation (as designated by the MAC) | 20 | Yes |
| PhD in a subject relevant to the job | 10 | Yes |
| PhD in a science, technology, engineering and mathematics (STEM) subject relevant to the job | 20 | Yes |
All job roles have a corresponding Standard Occupational Classification (SOC) code. The SOC categorises the skill level of a particular role (eg RQF 6) and gives a "going rate" salary for the role. Currently, only roles at RQF level 6 can be sponsored, but under the new system, this is reduced to RQF level 3 (which roughly corresponds to a skill level that would require completion of secondary education). Employers select the SOC code that most accurately reflects the role.
The UK Government website provides a list of the current SOC codes.
While the minimum general salary threshold to achieve the required 20 points under stage two will be reduced to £25,600 (from £30,000 as it stands currently), if a role pays less than £25,600 (but at least £20,480) it may still be eligible for sponsorship if the individual can "trade" points. In other words, the individual might still meet the stage two test by gaining points under the other categories under test two.
Where the individual is an "experienced worker" they still must meet the "going rate" for the role as identified in the SOC, or £25,600, whichever is higher (unless they can trade points). For example, an experienced worker civil engineer would be classified under SOC 2121. The going rate identified in the SOC for this role is £33,000. Therefore, some jobs will continue to have a higher salary threshold.
For "new entrant" workers (under the current system, applicants who are aged under 26 with a visa duration of no more than three years and one month), the Government has set the "going rate" at 30% lower than the rate for "experienced workers". However, it is important to recognise that, given the reduction in the RQF level required, it is possible that there will be a change in the definition of "new entrant".
Skilled worker case studies
Computer games design university researcher
Test one: Job offer (20 points) + Job at appropriate skill level (20 points) + English language ability (10 points) = 50 points
Test two: Salary of £22,000 (0 points) + PhD in a STEM subject relevant to the job (20 points) = 20 points
Total points scored = 70 points
This role would be eligible for a visa.
Automotive engineer
Test one: Job offer (20 points) + Job at appropriate skill level (20 points) + English language ability (10 points) = 50 points
Test two: Salary of £35,000 (20 points)
Total points scored = 70 points
This role would be eligible for a visa.
Project coordinator in fashion retail
Test one: Job offer (20 points) + Job at appropriate skill level (20 points) + English language ability (10 points) = 50 points
Test two: Salary of £23,010 (0 points) + Job not in a shortage occupation (0 points) = 0 points
Total points scored = 50 points
This role would not be eligible for a visa.
Lecturer in moral philosophy
Test one: Job offer (20 points) + Job at appropriate skill level (20 points) + English language ability (10 points) = 50 points
Test two: Salary of £25,000 (10 points) + PhD in a subject relevant to the job (10 points) = 20 points
Total points scored = 70 points
This role would be eligible for a visa.
Care worker
Test one: Job offer (20 points) + Job at appropriate skill level (0 points) + English language ability (10 points) = 30 points
Test two: Salary of £26,000 (20 points) = 20 points
Total points scored = 50 points
This role is not recognised to be at RQF level 3 or above, so would not be classified as a "Job at appropriate skill level" required in test one. Irrespective of meeting the salary threshold, as the role does not meet the requirements for test one, the individual would not be eligible for a visa.
Nurse
Test one: Job offer (20 points) + Job at appropriate skill level (20 points) + English language ability (10 points) = 50 points
Test two: Salary of £22,000 (0 points) + Job in a shortage occupation (20 points) = 20 points
Total points scored = 70 points
This role would be eligible for a visa.
What else do we need to know about the new immigration system?
There are a number of other aspects to the new immigration system of which employers should be aware:
- There will be no regional salary thresholds or different arrangements for different parts of the UK, which is in line with the MAC's recommendations.
- The cap on the number of people who can come to the UK on the skilled worker route will be suspended.
- The current requirements for a resident labour market test will fall away, thereby reducing the lead time for a tier 2 (general) visa by one to two months.
The Home Office may consider including additional attributes that can be "traded" against a lower salary in the future. This might include factors such as experience of studying in the UK or age, which have been used in other countries such as Australia.
The shortage occupation list
Employers should note that the MAC asked businesses to respond to a call for evidence to enable it to expand the shortage occupation list for roles at RQF levels 3-5. The deadline to respond to the consultation was 24 June 2020. The MAC will report on the outcome of the consultation in September 2020.
What about those who sit outside this system?
There will not be an immigration category for workers deemed to be low skilled. This is a sensitive policy, particularly during the current pandemic; some of these roles are considered to be occupied by "key workers", such as jobs in food production, retail and care (as per some of the above examples).
The Government's response is that "Employers will need to adjust", and it points to the 3.2 million applications to the EU settlement scheme received from EU citizens, which opened in March 2019. According to the Government, this will provide employers with the flexibility to meet labour market demands.
