Andrew Osborne Supinder Singh Sian Stephen O'Flaherty Naomi Hanrahan-Soar March 22 2023 Home Office confirms spring updates to Immigration Rules Lewis Silkin LLP | Employment & Immigration - United Kingdom Andrew Osborne, Supinder Singh Sian, Stephen O'Flaherty, Naomi Hanrahan-Soar Employment & Immigration IntroductionUpdates to work routes from 12 April 2023Amendments to visitor rules from 12 April 2023Launch of ETAs from 15 November 2023New innovator founder route and closure of start-up route from 13 April 2023Update and enhancement of youth mobility scheme from 29 June 2023Updates to global talent and prestigious prizes routes from 12 April 2023Qualifying routes narrowed for long residence settlement from 13 April 2023IntroductionOn 9 March 2023 the Home Office published its Spring Statement of Changes in Immigration Rules. The statement contains important updates to employment requirements in work routes. It also introduces the new electronic travel authorisation (ETA) relevant for short trips to the United Kingdom.This article summarises some of the changes that are most likely to be of interest to employers. The changes in HC 1160 come into effect at various points in time and are indicated next to each topic.Updates to work routes from 12 April 2023This includes updates to the skilled worker, global business mobility, scale-up and seasonal worker routes. Although changes take effect on 12 April 2023, sponsors should note that if an application for entry clearance or permission to stay is made using a certificate of sponsorship (CoS) issued before 12 April 2023, the application will be decided in accordance with the Immigration Rules in force on 11 April 2023.The most significant changes include:an increase to the general salary thresholds and hourly rates;amendments to Appendix Skilled Occupations; andclarification on how to assess salaries for irregular working patterns.Increases to general salary thresholdsThere will be an increase to the general salary threshold for each route, which are summarised in the table below.Immigration routeCurrent general salary thresholdNew general salary thresholdSkilled workerOption AOption B (relevant PhD)Options C to F (PhD in science, technology, engineering or maths, shortage occupation, or new entrant to the labour market and health or education sectors)£25,600£23,040£20,480£26,200£23,580£20,960Global business mobilitySenior or specialist workerGraduate traineeUK expansion worker£42,400£23,100£42,400£45,800£24,220£45,800Scale-up£33,000£34,600Seasonal worker If the applicant is being sponsored under occupation code 5431 or 5433 in the poultry production sector only£25,600£26,200Increases in minimum hourly rate for skilled worker and seasonal worker routesThe minimum hourly rates will increase as follows.Immigration routeCurrent minimum hourly rateNew minimum hourly rateSkilled worker£10.10£10.75Seasonal worker£10.10£10.42Changes to salary going rates for skilled worker, global business mobility and scale-up routesIn addition to changes to the general salary thresholds, there is a change to the going rates listed in Table 1 of Appendix Skilled Occupations. The going rate will now be based on a 37.5-hour working week, rather than a 39-hour working week. This will impact the calculations made by sponsors when they pro-rate salaries according to weekly working hours and working patterns.The overall reduction to a 37.5-hour working week does not necessarily mean that the salaries aligned to occupation codes in Table 1 will also reduce. There has been an overall increase to the going rates for many occupations, which have been updated in line with the most recent UK salary data. Employers should review the new Appendix Skilled Occupations in detail once it is published in the Immigration Rules.Changes to salary calculations for those with irregular working hoursAnother significant change is that the skilled worker, senior or specialist worker, graduate trainee, UK expansion worker, scale-up and seasonal worker routes now contain a provision to account for irregular working patterns that result in receiving uneven pay each week.The new rules will allow time in excess of 48 hours worked in some weeks to count towards the salary thresholds, if the average over a regular cycle (which must be no more than 17 weeks) is 48 hours a week or less. Unpaid rest weeks will count towards the average and will not count as absences from employment that may lead to cancellation of permission. This provides sponsors and sponsored workers with additional flexibility regarding working patterns and will be especially relevant for offshore workers and others who perform extended onsite shifts.Requirement to comply with NMWR and WTRSponsors are already required to comply with generally applicable UK laws; however, from 12 April 2023, Home Office caseworkers can refuse an application under most sponsored work and temporary work routes if they have reasonable grounds for believing the job does not comply with the National Minimum Wage Regulations (NMWR) or the Working Time Regulations (WTR).Employers should note that national minimum wage rates are rising from 1 April 2023 and may be above the £10.10 minimum hourly rate for the skilled worker route. Employers should ensure they comply with the new national minimum wage requirements for all their workers, and that a CoS assigned from 1 April 2023 complies with both the prevailing hourly rates set out in the Immigration Rules and the NMWR.Employers should also ensure that where a sponsored worker opts out of the average 48-working-hour maximum provided for under the WTR, evidence of this is retained on their human resources file.Absences from employment for jury service and court attendance as witnessJury service and attending court as a witness are added to the list of activities that will be ignored for the purposes of considering whether:permission should be cancelled due to a worker being absent from employment on no or reduced pay; anda 12-month continuous period of employment (which is a requirement for some routes) has been broken.Inclusion of offshore workers in skilled worker route In what the Home Office describes as a "minor amendment", the rules have been updated to confirm that the skilled worker route applies to those who are working in UK waters – that is, any waters within the United Kingdom and the UK territorial sea. The territorial sea extends beyond the UK landmass for 12 nautical miles.This change reflects the provisions of the recently commenced section 43 and Schedule 6 of the Nationality and Borders Act 2022.Minimum weekly hours for seasonal workers in horticultureIn addition to the minimum hourly rate of pay for seasonal workers being increased to £10.42, seasonal workers in horticulture must be employed for at least 32 hours per week. This brings them in line with the current minimum hour requirement for poultry workers.Amendments to visitor rules from 12 April 2023Working as a seafarer is being included in the list of permitted activities for visitors to the United Kingdom. These workers are not affected by the above changes to the skilled worker route for offshore workers.Seafarers will need to demonstrate they are delivering or collecting goods or passengers on a vessel on a genuine international route between a port in the United Kingdom and a port outside the United Kingdom. They may call at no more than 10 UK ports within a 60-day time period before travelling to a port outside the United Kingdom. They may also receive payment from a UK source.Launch of ETAs from 15 November 2023 The ETA is a new requirement that will be applied, through a gradual rollout starting 15 November 2023, to individuals who currently do not need a visa before entering the United Kingdom for short trips, plus Jordan.Scope of ETA schemeNon-visa nationals, citizens of countries currently eligible for an electronic visa waiver and Jordanian citizens will be required to obtain an ETA for:visits to the United Kingdom for up to six months for tourism, visiting family and friends, business or study;visits to the United Kingdom for up to three months under the creative worker visa concession; andtransiting through the United Kingdom.The ETA scheme will not apply to:British and Irish citizens;individuals with the right of abode in the United Kingdom;individuals who are exempt from immigration control;holders of an existing visa;holders of existing entry clearance or permission to stay;holders of a frontier worker permit; andnon-visa nationals who are legally resident in Ireland and are entering the United Kingdom from Ireland, Guernsey, Jersey or the Isle of Man.Application processThe scheme will operate in a similar way to the United States' electronic system for travel authorisation (ESTA), whereby nationals of certain countries who do not need a visa to enter the United States must obtain prior permission to visit.Applications will be made online or via an ETA app. Applicants must have a valid chipped passport, take a digital photo and enrol their biometrics. There will be a short set of suitability questions; applications may be refused:on criminality grounds;if the person has an outstanding National Health Service debt over £500;if they have breached immigration laws by overstaying or breaching a condition of their permission; orif their presence in the United Kingdom is considered not conducive to the public good.This is not an exhaustive list.The cost of an ETA is yet to be announced, but application fees are predicted to be in the region of £10 to £20. The processing time is estimated to be three working days, unless further checks are required.An ETA will have a two-year validity or will expire in line with the passport if the passport expires earlier. It can be used for multiple visits. Employers should note that if an application for an ETA is refused, a visa application is required, which could add up to three weeks to a business travel timeline.If a person who requires an ETA travels to the United Kingdom without one, they may be refused permission to enter.Three-phase rolloutThe requirement to obtain an ETA in advance of travel is being rolled out gradually, starting with nationals of Qatar who wish to travel to the United Kingdom from 15 November 2023 for the above short-term purposes. From 22 February 2024, it will apply to nationals of Bahrain, Jordan, Kuwait, Oman, Saudi Arabia and the United Arab Emirates. It should apply to all non-visa nationals by the end of 2024.Implications for employersThis is a significant development for employers whose employees visit the United Kingdom for business activities, or who invite individuals for permitted paid engagements under the visitor rules. In readiness for the rollout of the scheme, employers may consider:allocating a budget for ETA application costs;amending their policies and process outlines for supporting business visits and permitted paid engagements to the United Kingdom; andencouraging intending visitors to apply early for their ETA, to avoid timing issues where an ETA is refused.New innovator founder route and closure of start-up route from 13 April 2023The innovator founder is a new immigration route that replaces the innovator route. It implements the government's strategy for innovation published in July 2021.The new route is a revamped version of the innovator route, but with the added advantage of no requirement to have £50,000 minimum funds to invest. There is also a relaxation of the restricted work requirement, which means that new applicants on this route have permission to work in skilled roles (at Regulated Qualifications Framework level three – ie, A-level equivalent) outside of the running of their business.There will be three new endorsing bodies for the route, and, among other things, they will need to assess whether an applicant is a "fit and proper person". The Home Office will also be able to refuse an application or cancel immigration permission if there is reason to believe an applicant is not a fit and proper person, or other grounds relating to corruption, financial crime or financial misconduct apply.A partner or child of an innovator founder will not be eligible to obtain entry clearance or permission to stay as an innovator founder dependant where the main applicant has already settled or become a British citizen. They will need to apply under Appendix FM or in their own right under an alternative route instead.As the requirement to have funds of at least £50,000 has been removed, it is no longer necessary to have a separate "start-up" route for entrepreneurs. As a result, the start-up route will close, other than for applications supported by endorsement issued before 13 April 2023 and submitted by 12 July 2023.Update and enhancement of youth mobility scheme from 29 June 2023If an application is made before 29 June 2023, it will be decided in accordance with the Immigration Rules in force on 28 June 2023.The quota for each participating country in the youth mobility scheme is included when the rule changes take effect. Australia will have an additional 5,000 places, bringing their quota to 35,000 places. Canada will have an additional 2,000 places, bringing their quota to 8,000 places. The other participating quotas remain the same at between 1,000 and 13,000 places.Nationals of New Zealand applying under this route will have more flexible requirements. Applicants aged 18 to 35 will be eligible (currently they must be between 18 to 30) and the total period of stay will increase from two to three years. New Zealand applicants will also be eligible to extend any existing permission they have under the route so that they can take advantage of the longer three-year period of stay.Updates to global talent and prestigious prizes routes from 12 April 2023Changes are made to the endorsement criteria and evidential requirements. This will impact new entry clearance applications and applications for permission to stay.A notable welcome change is that time spent in the United Kingdom as a representative of an overseas business can be combined with time spent in the global talent route as part of the three or five-year continuous residence period towards settlement.There is currently no information on endorsement arrangements for digital technology applications following the anticipated closure of the current endorsing body, Tech Nation, on 31 March 2023.Qualifying routes narrowed for long residence settlement from 13 April 2023An individual may qualify for settlement in the United Kingdom once they have accrued at least 10 years' continuous lawful residence.For applications submitted under this route from 13 April 2023, the following will not be eligible to be counted towards the 10-year qualifying period:time spent on immigration bail; andtime spent as a:visitor;short-term student (studying an English language course for up to 12 months); orseasonal Worker.The effect of this change is to defer the earliest date some applicants will be eligible to apply for settlement. The practical impact for employers is that some employees may now require sponsorship or another alternative grant of temporary immigration permission in the interim.For further information on this topic please contact Andrew Osborne, Supinder Singh Sian, Stephen O'Flaherty or Naomi Hanrahan-Soar at Lewis Silkin by telephone (+44 20 7074 8000) or email ([email protected], [email protected]m, stephen.o'[email protected] or [email protected]). The Lewis Silkin website can be accessed at www.lewissilkin.com.Pip Hague, Senior Practice Development Lawyer, and Kathryn Denyer, Managing Practice Development Lawyer, assisted in the preparation of this article.