Recent changes to the Immigration Rules intend to make it easier for digital technology sector to access much-needed overseas talent. Responding to evidence that the industry is suffering from skills shortages which if left unaddressed threaten to restrict growth, the Government has introduced a number of reforms which intend to make it easier for established UK businesses to recruit skilled migrant workers where the vacancy in question is a recognised skilled shortage, as well as encouraging entrepreneurs and exceptionally talented tech professionals to join or launch tech start-ups in the UK.
Two different immigration categories are affected by the recent changes, namely:
- Tier 1 (Exceptional Talent)
- Tier 2 (General)
The reforms attempt to achieve the Government’s twin, and arguably contradictory, objectives; making it easier for UK businesses to recruit & retain high-caliber overseas talent and reducing the UK’s net immigration figures.
As ever, the devil will be in the details and it is to be seen whether these changes will encourage the kind of selective, high-skilled migration the Government seeks.
This note provides a brief overview of the reforms and how businesses and individuals can take advantage of these changes.
Tier 1 (Exceptional Talent)
The Exceptional Talent route was first introduced in August 2011, with the aim of attracting exceptionally talented individuals in the fields of science, humanities, engineering and the arts to “enrich the UK’s knowledge economy and cultural life”.
This route should be seen in the context of an ever-more restrictive immigration system. A number of predecessor ‘highly-skilled’ and post-study graduate schemes had been deemed not sufficiently selective and subsequently closed. The Exceptional Talent route was introduced to fill the gap.
To qualify, applicants must be vetted by, and receive the endorsement from a ‘Designated Competent Body’ – initially, the Royal Society, the Arts Council, the British Academy and the Royal Academy of Engineering. With each of the DCB’s given a limited quota of endorsements to be granted to the very best talents in their respective fields, the bar had been set reassuringly high, yet allowed the Government to point to its continued commitment to attracting the ‘best and brightest’ to these shores.
Whether by accident or design, uptake in the scheme has been muted, with less than 200 reported applications being approved since its introduction.
Recognising the limitations of the Exceptional Talent route in its in current guise, the Government have introduced reforms for a) widening the eligibility requirements and b) specifically target proven and promising talent within the digital technology sectors.
Tech Nation Visa Scheme
In October 2015, the Government introduced the ‘Tech Nation Visa Scheme’ which falls under the umbrella of the Tier 1 (Exceptional Talent) category.
The new scheme aims to address the shortcomings of the previous scheme in the following ways:
- Building UK Scale-ups: The new scheme provides a fast-track route to skilled migrant workers being brought in to assist companies attempting to grow towards an initial public offering, including software coding, finance and online security specialists.
- Recognising ‘Exceptional Promise’: The new scheme will now consider applications from individuals that demonstrate ‘Exceptional Promise’, a criterion that aims to open the route to a broader base of aspiring talent from outside the EU. This provision will facilitate companies in recruiting the highly skilled individuals needed to fill specific talent gaps.
- Powering the Northern Powerhouse: The new scheme will now include a fast-track applications procedure for digital businesses in the seven cities under the Tech North remit (Hull, Leeds, Liverpool, Manchester, Newcastle, Sheffield and Sunderland).
- Recruiting Teams from Overseas: Recognising that digital businesses often seek to recruit entire teams of exceptional individuals from outside the EU who have demonstrated success, the new scheme will allow groups of up to five to be able to apply at once for consideration.
Responsibility for the initial vetting of applicants now rests with Tech City UK, the publically funded quango established to promote the interests of the UK technology sector. In its capacity as a Designated Competent Body, Tech City UK will both set the criteria for endorsement and will assess prospective applicants. The number of endorsements that can be granted by Tech City is limited at 200 per year.
The application process for the Tech Nation Visa Scheme is a two-stage process. First, applicants must apply to Tech City for endorsement. To be eligible, the applicant must demonstrate they satisfy one of the following ‘mandatory’ criteria:
- The applicant has a proven record of innovation in the digital technology sector as a director, founder or employee of a digital sector company; or
- Proof of recognition for work outside their immediate occupation that has contributed to the advancement of the sector.
Applicants would be expected to provide evidence of previous businesses in the form of last set of audited accounts and financial projections, evidence of the availability of the business’ products in the marketplace, and previous employment contracts. Proof of the applicant’s contribution to the ‘advancement of the sector’ could be in the form of press articles, recordings of conference talks, or evidence of contributions to an Open Source project.
If the above are satisfied, the applicant would then need to demonstrate they meet at least one of the following ‘qualifying’ criteria:
- The applicant has made significant technical, commercial or entrepreneurial contributions in the digital technology sector as either a director, founder, or employee of a digital technology company;
- The applicant has been recognised as a world leading talent in the digital technology sector;
- The applicant has undergone continuous learning / mastery of new digital skills (commercial or technical) throughout their career;
- The applicant has demonstrated exceptional ability in the field by making academic contributions through research.
The applicant would be expected to provide personal reference letters, previous contracts of employment, published articles, CV etc. as evidence of satisfying the above.
If any of the relevant fast-track concessions apply, the applicant would need to provide evidence from the UK company that the applicant satisfies the criteria.
If an endorsement is granted by Tech City, the applicant will be given a reference which can then be included with an application for a Tier 1 (Exceptional) visa to be submitted to the British Consulate in the applicant’s country of origin or to the Home Office in the UK.
The usual background checks will be made at this stage – the UK Immigration Authorities will check that the applicant has no criminal convictions or previous immigration offences, and if satisfied that there are no public policy grounds for refusal, will issue a visa for up to 5 years.
Once the visa has been granted, the applicant will be able to start working in the UK. There are relatively few restrictions on the type of work that the visa holder can engage in in the UK. Both salaried employment and self-employment is permitted, and unlike most types of work permits, Exceptional Talent visa holders are not tied to a particular employer or business. However, working in the digital technology sector in some capacity will be essential to secure an extension of leave or indefinite leave to remain in the UK.
After 5 years continuous residence in the UK under the Exceptional Talent scheme, the applicant will be eligible to apply for indefinite leave to remain. To qualify, the applicant will need to satisfy a number of criteria including the requirement to show that during his most recent period of leave as a Tier 1 (Exceptional Talent) visa holder, the applicant has earned money in the UK as a result of employment or self-employment in his expert field as previously endorsed by Tech City and that Tech City has not withdrawn its endorsement of the applicant.
Tier 2 (General) – Shortage Occupation List
The recent changes also recognize that not all of the skilled workers needed by the Digital Technology sector will be able to satisfy the strict criteria of the Tier 1 (Exceptional Talent) route. The ability for UK tech businesses to sponsor migrant workers under the Tier 2 (General) category has been made easier.
Acting on the advice of the Migration Advisory Committee (MAC), the Government has expanded the shortage occupation list to include certain jobs which are badly needed by the tech industry. These include:
- IT product manager
- Systems engineer
- Senior developer
- Cyber security specialist
The inclusion of these job titles on the shortage occupation list allows licensed employers to be able to sponsor migrant workers in the above roles without having to undertake a resident labour market test, the usual prerequisite for Tier 2 (General) applications. A resident labour market test involves undertaking a genuine recruitment exercise and demonstrating that a suitable resident worker could not be found for the vacancy. By exempting these roles from the RLMT requirements, the sponsorship process becomes much easier to satisfy and streamlines the process for employers.
However, wishing to restrict the benefit of this concession to those UK businesses that need it most – namely smaller start-up/scale-up digital technology companies – the Government will restrict the ability to take advantage of these changes to those companies which:
a) have between 20 and 250 employees (or have fewer than 20 employees and have included the letter from UK Trade and Investment (UKTI) confirming that UKTI have been working with the company and support the application in relation to the company’s trade or investment activity); and,
b) not be more than 25% owned by a company which has one or more other establishments in the UK, and one or more of those establishments employing more than 250 employees; and,
c) not have been established in the UK for the purpose of supplying services exclusively to a single company or company group in the UK.
Qualifying companies can only sponsor a maximum of ten migrants at any one time in these shortage occupation roles across all four occupations.
In addition, where the sponsor employer wishes to take advantage of one of the above shortage occupations, they will only be permitted to do so where the role requires a person with a minimum of five years’ relevant experience and demonstrable experience of having led a team. Appropriate evidence of the worker’s previous experience would need to be retained and provided to the Home Office on request.
Whether the above changes adequately address the skills shortages faced by the digital technology sector is to be seen; however, any steps taken to make it easier for skilled migrants to come to the UK are welcome.
Employers and entrepreneurs are encouraged to review their recruitment strategies to see whether these changes can be used to their advantage.