Summary

From 1 January 2021, under the new points-based immigration system, EU and non-EU nationals wishing to work in the UK will require a visa (unless they already have pre-settled or settled status).

There are several ways in which to gain the legal right to work within the UK, this article looks specifically at the skilled worker route, which is perhaps the most common route into the UK to work.

 

What is the skilled worker visa?

This visa is to bring in skills from outside of the UK for UK jobs, and is perhaps the most common type of visa for entering the UK for work as it covers a wide range of occupations.

Through this skilled worker route, the job must have a suitable rate of pay and skill level (equivalent to A-level) and fall within the UK’s Immigration rules defining those occupations which qualify.

To recruit under the skilled worker route, employers are required to hold a sponsor licence.   You can read more about a sponsor licence in our article Points Based Immigration System.

 

Will the Resident Labour Market Test apply?

Under the old visa scheme, an employer was required to complete the resident labour market test, which effectively demonstrated to UK Visa and Immigration that there was no “settled” worker available for the role from within the UK and that was why they needed to recruit from outside the UK.  This has been abolished as part of the immigration reform.

In the absence of this test, it means that there is potential for employers to recruit anybody into their post.  To prevent this, the statement of changes in immigration rules, published 22 October 2020, sets out in section SW 5.5 that the job that is being applied for must be a) a genuine job b) is not a sham and c) has not been created mainly so the applicant can apply for entry clearance or permission to stay.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/928751/CCS001_CCS1020373376-001_Statement_of_changes_in_Immigration_Rules_-_HC_813__PRINT_.pdf

 

 

What is the level of skill required?

All skilled jobs as defined by the UK’s immigration rules, have been given a standard occupational classification code (SOC) and each SOC then has a designated skill level which determines whether the job meets the requirements of the skilled worker route.

There are two sources of guidance for employers to help in determining whether their job is at the required skill level.

  1. The Immigration Rules Appendix J: codes of practice for skilled workers lists all occupations that qualify for the skilled worker visa. https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-j-codes-of-practice-for-skilled-work
  2. The Office for National Statistic (ONS) provides an online coding tool which allows employers to then consider whether the job description they are recruiting for, matches against the standard occupational qualifying code (SOC) as defined by the Immigration rules https://onsdigital.github.io/dp-classification-tools/standard-occupational-classification/ONS_SOC_occupation_coding_tool.html 

The ONS coding tool will be key for employers now that the resident labour market test has been abolished.  By determining which SOC code a vacancy aligns too, the coding tool will allow an employer to check whether the description set out in the tool aligns to the description of the vacancy in the job description.

The reason this coding tool is key, is because the Home Office can check visa applications if they suspect a breach of the immigration rules.  They can conduct workplace visits interviewing both employer and employee.  We know that the requirement is to have a job that is genuine, not a sham or not created mainly so the applicant can apply for entry clearance or permission to stay.  Keeping your evidence of how you have determined the appropriate skill level is therefore important.  It could be that you take screen shots of your analysis, which is then attached to your job description.

 

Eligibility

Assuming the job meets the required pay and skill level, job applicants will need to score 70 points in which to work within the UK.  People will be able to earn points by trading characteristics against a lower salary. The Government have announced the following characteristics and points that can be attained:

Characteristic Mandatory or Tradeable Points
Job Offer (approved by Sponsor) Mandatory 20
Job Offer at appropriate skill level Mandatory 20
Speaks English at the required level Mandatory 10
Salary between £20,480 and £23,039 or at least 80% of the going rate for the profession (whichever is the highest) Tradeable 0
Salary between £23,040 and £25,599 or at least 90% of the going rate for the profession (whichever is the highest) Tradeable 10
Salary between £25,600 or above or at least the going rate for the profession (whichever is the highest) Tradeable 20
Job Offer in a shortage occupation Tradeable 20
Education Qualification: PhD in a subject relevant to the job offer Tradeable 10
Education Qualification: PhD in a STEM subject relevant to the job offer Tradeable 20

 

Anybody wishing to work in the UK as a skilled worker will need to demonstrate that:

  1. They have a job offer from a Home Office licenced sponsor
  2. The job offer is at the required skill level (RQF3 or above, which is A level or equivalent)
  3. They speak English to the required standard
  4. The salary must meet the applicable minimum salary threshold which is the higher of either
    a) The general salary threshold set by the Government on advice of the independent migration advisory committee at £25,600 or
    b) The specific salary requirement for their occupation known as the “going rate”.

 

Where the job offer is between £20,480 and the minimum threshold of £25,600, the applicant may still be eligible, but only if:

  • The job offer is for a specific shortage occupation
  • A PhD is relevant to the job
  • A PhD in a STEM subject (science, technology, engineering, and mathematics) that is relevant to the job

 

Associated Fees 

UK Employers must pay to become a sponsor, and all non-UK applicants are required to pay for their visa application.   This section sets out associated fees for the skilled worker visa.

 

Sponsored Licence:

An employer must pay if to be awarded a sponsor licence:

Type of licence Small businesses/charities Medium to Large Businesses
Tier 2 £536.00 £1,476.00
Tier 5 £536.00 £536.00
Tier 2 and Tier 5 £536.00 £1,476.00

 

The definition of a small business is if the annual turnover is less than £10.2 million and you have less than 50 employees.

 

Immigration Skills Charge 

In addition to paying fees for having a sponsor licence, there is also an immigration skill charge that employers must pay when recruiting from outside of the UK.

The fee will be charged when employing foreign nationals through the skilled worker and intra company transfer routes.  It is understood that the fee will be £1,000 per skilled worker for the first 12 months with an additional £500 charge for each subsequent six-month period.  Charities and small businesses will be able to pay discounted rates.

 

Visa Application Fee

All job applicants will be required to pay a fee to apply to work in the UK.  

 

Avoiding Discrimination

All employers have a legal duty to prevent illegal working in the UK by carrying out document checks before employing someone.  Carrying out right to work checks only on people believed not to be British because for example, of their colour or ethnicity, then this would be discriminatory.

To ensure discrimination does not occur, then all job applicants must be treated fairly and in the same way at each stage of the recruitment process, including the right to work checks.

You can read the Government’s Code of Practice on avoiding unlawful discrimination while preventing illegal working here.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/311665/Code_of_practice_on_avoiding_unlawful_discrimination_while_preventing_illegal_working.pdf

 

Transition period between free movement and using a points-based system

In order to transition to the new points based immigration system, employers will be given six months to continue to accept passports and national identity cards of EU nationals in the usual way as evidence of their right to work in the UK.  They have until 30 June 2021 to be able to use current forms of evidence.

EU nationals may opt to provide their evidence through the Government’s online right to work checking service rather than providing original paper documents as part of a manual check.  When using this method, the employee will need to provide a share code either directly themselves, or via the online service which will then send a notification email to the employer.

An employer should give employees every opportunity to demonstrate their right to work but should not discriminate based on whether an individual is able and/or willing to demonstrate their right to work using the online checking service. To do so may result in you breaching the law.

So whilst employers may choose to encourage the use of the online check and may support the applicant in doing so (for instance, by providing access to hardware and the internet), then an employer is not permitted to mandate online checks.

Where an individual does not wish to demonstrate their right to work using the online service, an Employer must conduct the check manually.

Given that this transition period ends 30 June 2021, it means that from 1 July 2021, an applicant will need to have either a visa or settled/pre settled status to have the legal right to work in the UK moving forward.

 

How does this work alongside the EU Settlement Scheme?

EU, EEA and Swiss nationals and those who are a family member of an eligible person of Northern Ireland who currently work for a UK based organisation can apply to stay in the UK after Brexit under the EU settlement Scheme.

Provided they have entered the UK by 31 December 2020, they will be permitted to live and work in the UK after Brexit.  A grace period has been given to EU nationals to allow them until 30 June 2021 to apply to the settlement scheme.

For those employees who have indefinite leave to enter or remain, they can continue to live in the UK without applying to the EU Settlement Scheme.  However, if they spend more than 2 years in a row outside the UK then they lose their settled status.  They can avoid this by applying for the EU Settlement Scheme and if granted, they will get settled status meaning that they can spend up to 5 years in a row outside the UK without losing their settled status.

Furthermore, if an employee has lived in the UK before 1973, they will have been given indefinite leave to remain status. In which case, they do not need to apply for the EU Settlement status.

The deadline for applying for the settlement scheme is 30 June 2021 however the employee must already be in the UK by the 31 December 2020.  It will be the EU nationals own responsibility to apply, meaning that if you already employ them or they are going through your recruitment processes, you are not able to require them to do it.

If your employee is granted a settlement status then they will be given either settled status or pre-settled status based upon how long they have lived in the UK at the point of applying and the rights gained will differ depending on which status is granted. However, regardless of the type of status granted, the individual will be able to work in the UK as well as access public funds such as benefits and pensions, where eligible.

 

Further Information

For further guidance and immigration advice, we recommend:

 

Legal Considerations

All employers are required to confirm that all new recruits are entitled to work in the UK before they commence employment, by requesting the sight of an approved document. Failure to do this is a criminal offence under the Immigration, Asylum and Nationality Act 2006. The checks should be carried out for every prospective employee prior to starting work, irrespective of the job or position.  https://www.legislation.gov.uk/ukpga/2006/13/contents

The Immigration (Employment of Adults Subject to Immigration Control) (Maximum Penalty) (Amendment) Order 2014 increased the maximum civil penalty for each illegal worker.

The Immigration Act 2014 introduces a non-refundable charge for the National Health Service for temporary migrants. This will be payable when migrants apply for their UK entry visa or extend their existing UK visa, and will enable the worker to access the NHS free of charge in the same way as a UK resident. Employers should bear this additional cost in mind when recruiting temporary migrant workers. Note that this may also be applied to students.  https://www.gov.uk/healthcare-immigration-application

As from 6 October 2016, the Immigration (Variation of Leave) Order 2016 will mean that an overseas domestic worker who has reasonable grounds to believe he/she is a victim of modern slavery, may have his/her limited leave to enter the United Kingdom extended until 28 days after a competent authority has notified the individual of its decision as to whether or not he/she is such a victim.