A statement of changes to the UK’s Immigration Rules was announced on 9 September. Here is a summary of the most relevant changes.
Tier 2 (General)
This category allows UK companies to sponsor non-European Economic Area (EEA) nationals to work in skilled roles in the United Kingdom. It is subject to an annual limit of 20,700 places, divided into monthly allocations. The main changes that employers should be aware of include the following:
Ph.D.-level roles will be removed from the Tier 2 (General) annual quota and therefore will not require a restricted certificate of sponsorship. This will apply from 1 October 2019, and will free up places in the monthly allocation process for other skilled roles that contribute to the economy.
Tier 2 Ph.D.-level migrants undertaking research overseas directly linked to their employment may do so without this absence being “counted” for Indefinite Leave to Remain (ILR) applications. The same applies for dependent partners accompanying them.
The Home Office has expanded the shortage occupation list (SOL) as recommended by the Migration Advisory Committee (MAC) earlier this year to include a range of skilled occupations. Occupations that have been added to the list include veterinarians, architects, and web designers. There is one list covering the whole of the United Kingdom and an additional list for Scotland. People in these occupations coming to work in the United Kingdom will now receive priority in securing a Tier 2 work visa, over occupations not on the SOL list. The new SOL will be in place from 6 October 2019.
Tier 2 migrants will not be penalised if they are absent from work due to sickness, statutory parental leave, assisting in a national or international humanitarian or environmental crisis, or engaging in legal strike action. The changes mean that Tier 2 migrants will not be refused ILR if such absence causes their salary to fall below the required threshold.
EU Settlement Scheme
The EU Settlement Scheme (EUSS) is the immigration category under which EEA and Swiss nationals and their family members will be required to apply in order to stay in the United Kingdom after December 2020. The following changes will take effect from 1 October 2019:
Close family members of UK nationals who had previously been living with the UK national overseas while they were exercising their free movement rights will be able to make an application under the EUSS until 29 March 2022 (where that relationship existed on exit day) or until 31 December 2020 (where that relationship established post-exit day) in both deal and no-deal scenarios.
Non-EEA family members granted EUSS status, whose biometric residence card is lost or stolen overseas, will be able to apply free of charge for a EUSS travel permit to enable them to travel to the United Kingdom where they can apply for a replacement biometric residence card.
Individuals who have had their status under EUSS cancelled at the border by an immigration officer on the basis that they no longer meet the requirements for that status will have the right of administrative review. Administrative review allows an applicant to challenge a decision on their application or in respect of their leave.
Startup and Innovator
The Startup and Innovator categories were introduced in March 2019. They are for individuals seeking to establish a business in the United Kingdom which is supported by an authorised endorsing body. The following changes will take effect from 1 October 2019:
Amendments are being made to clarify the requirements that an organisation must meet to become an endorsing body. It must have support from a core department led by a UK or devolved government minister, or a regionally devolved authority led by a directly elected mayor. Requests to become an endorsing body may be refused due to criminality, actions or behaviour which are non-conducive to the public good. Requests may also be refused due to potential or actual conflicts of interest, or conflicts with the purpose of the categories or with wider immigration policy.
A change is being made to the Tier 4 (General) rules to allow students who have submitted a startup application supported by an endorsing body to commence their business activities while their application is being considered.
An exemption from the requirement for “startup” applicants not to have previously established a UK business is being added for Tier 4 (General) students on the doctorate extension scheme.
Tier 1 (Exceptional Talent)
The Tier 1 (Exceptional Talent) category is for talented individuals in the fields of science, humanities, engineering, the arts, and digital technology to work in the United Kingdom without the need to be sponsored for employment in specific roles. Applicants must be endorsed by a Designated Competent Body. The following changes are being made for individuals applying for endorsement by The Royal Society, The Royal Academy of Engineering, and The British Academy from 1 October 2019:
Expansion of the list of peer-reviewed fellowships to include fellowships awarded by the National Institute for Health Research
Expansion of the criteria to include applicants who have held a peer-reviewed fellowship in the 12 months immediately prior to the date of application
Expansion of the application criteria to allow a wider range of eligible senior academic or research positions to qualify
The following changes are being made for individuals applying for endorsement by Tech Nation from 1 October 2019:
There must be three, rather than just two, letters of support provided by established organisations in the digital technology sector to permit more in-depth consideration of an individual’s skills and the contribution they would make to the sector.
The phrase “product-led” has been added to the requirements to ensure the route is used by migrants with the appropriate skill set.
Other Noteworthy Developments
The Home Secretary has asked the MAC to conduct a review of Australia’s and other similar immigration systems to determine best practices for a post-Brexit UK immigration system as part of its ongoing review into salary thresholds. The MAC is an independent, non-departmental public body sponsored by the Home Office that advises the government on migration issues. (Read more for further details.)
The UK prime minister has announced plans to re-establish a two-year work visa for international graduates to stay and find work in the United Kingdom after they graduate. The visa category is expected to be introduced for students starting in the academic year 2020/2021. During the two-year period, graduates will be able to apply for any role and will not be restricted by skill level or salary threshold, whereas currently graduates must switch into Tier 2 (General) or another immigration category to remain in the United Kingdom.
Morgan Lewis & Bockius LLP – Nicholas Hobson, Jennifer Connolly and Yvette Allen