New immigration routes
Sponsorship
Covid-19
Global mobility
EU Settlement Scheme
Right to work
Amendments to family, private life and settlement routes
Visitor visa reform
The coming year includes some welcome pro-immigration reforms which should give businesses and individuals more options and a better user experience than currently. As a general direction of travel, the Home Office continues its post-Brexit programme of policy and operational change, including elements of liberalisation, simplification and technological improvement. There are also some deadlines to be aware of. This article explores some of the main themes that are expected to be seen across the year. To find out about the employment law trends of 2022, click here.
Three new immigration routes of interest to employers are due to launch in Spring 2022.
Global business mobility route
The global business mobility route will incorporate and reform the intra-company routes, the representative of an overseas business route, visitor rules for secondees from overseas clients of UK export companies and the provisions for contractual service suppliers and independent contractors under international agreements.
This route will give global businesses more options for sending personnel to the United Kingdom. One big change is that intra-company transferees may once again be eligible to settle in the United Kingdom, giving employers more flexibility to transfer a group employee quickly without the need to meet an English language requirement, even where this is with a view to settlement.
Overseas businesses will also likely be able to send a team of up to five personnel to set up a branch or subsidiary in the United Kingdom, rather than just one.
The provisions for seconding personnel from overseas clients of UK export companies are likely to be more restrictive than the current visitor provisions, but will allow secondees to be joined by their dependants.
It is not clear yet what changes there may be for contractual service suppliers and independent contractors, but these are likely to be relatively small as this element has not been subject to a full review, and is broadly aligned to the requirements of the United Kingdom's international commitments.
When using the new route, employers should be aware that it is likely to be subject, at least initially, to a high level of Home Office scrutiny and monitoring. This is in part due to previous concerns over potential abuse of skill level, reported salaries and allowances for intra-company transferees. Also, the proposed team subsidiary element of the route is likely to be launched as a trial and will need to be evaluated.
For analysis of the recommendations of the migration advisory committee for the global business mobility route, see "What can we expect from the new Global Business Mobility route?".
Scale-up route
This will be an unsponsored route intended to enable highly skilled and academically elite individuals to move to the United Kingdom to work at a recognised UK scale-up business. The route will lead to settlement.
Eligibility criteria for the route are anticipated to include the following:
a job offer from an approved scale-up business which has demonstrated to the Home Office an annual average revenue growth or employment growth of at least 20% over a three-year period, and a minimum of 10 employees at the beginning of that period;
a UK salary of at least £33,000; and
meeting an English language proficiency requirement.
Although this route will likely benefit a relatively small number of businesses and individuals, it will provide some SMEs with streamlined access to skilled workers to assist with the hypergrowth phase of their development.
High-potential individual route
This route is also expected to be unsponsored and to lead to settlement. Eligible applicants will not need to have a job offer to qualify, so employers will be able to engage holders of this visa without having to participate in the process of securing it.
The criteria for the route have not yet been made publicly available; however, it will be geared towards certain internationally mobile individuals with high potential to contribute to the United Kingdom. Eligibility may be linked to having graduated from a "top global university" but may also incorporate other, and possibly tradeable, points-based factors. It is very likely that an English language proficiency requirement will be included.
Being on top of immigration sponsor requirements, compliance and system changes will be critical for UK businesses in 2022.
Many more employers now need a licence to sponsor European Economic Area (EEA) national workers following the end of free movement, and more generally to fill skills gaps presented by the worker shortages being experienced across most industry sectors. These employers may need assistance to assess and advise on their readiness to become a sponsor, and to check their compliance with sponsorship obligations once a sponsor licence is in place.
Long-standing sponsors are also needing to rely more heavily on their licences. They may therefore benefit from refresher training or mock audits to limit the risk that their licence may be suspended or revoked.
New and established sponsors will also be grappling with the compliance aspects of remote working that have emerged due to the pandemic.
Separately, there is a high level of corporate mergers, acquisitions and other restructuring activity at present. Restructuring may have implications for sponsor licences, including the need to make reports to the Home Office and in some cases a requirement to apply for a new sponsor licence.
The Home Office has confirmed its "sponsorship roadmap" (for further information, see "Home Office releases Points-Based Immigration System Sponsorship Roadmap"). Sponsor compliance visits will remain a priority as it reforms the sponsorship system over the next few years. Onsite visits have resumed after being discontinued during the early phases of the pandemic, and greater activity is expected in this area following additional compliance officer recruitment.
Lastly, a rolling programme of IT transformation changes is also planned in the sponsorship sphere up to at least the first quarter of 2024. A new service, "Sponsor a Visa", will launch in mid-2022 and will allow visa applicants to access a partly populated online application form once the details of their role have been approved. Employers will need to be aware of this change and will likely need to adjust their internal processes accordingly.
With the pandemic continuing for the foreseeable future, the Home Office will need to adjust its immigration policies in response to prevailing conditions affecting international travel and processing of immigration applications.
Although the Home Office has wound back immigration-related concessions and returned to business as usual as much as possible during 2021, the likely emergence of coronavirus variants during 2022 means it is possible that remaining concessions will be extended, or new ones introduced.
For updates on how the pandemic is impacting UK immigration, click here.
The covid-19 pandemic has undoubtedly encouraged businesses to look closely at possibilities to work and do business meetings remotely (for further details of some of the issues associated with remote working abroad, see "Home and away: when working from home means working abroad"). However, ongoing international skills shortages combined with tax, social security, employment law and regulatory requirements mean that being able to recruit and mobilise international talent will remain key for businesses worldwide in 2022.
To ensure compliance with immigration laws in EEA countries, UK employers also need to keep pace with the evolution of how these countries are regulating the entry and stay of British nationals post-Brexit.
Although the main EU Settlement Scheme application deadline was 30 June 2021, in 2022 applications will still need to be made for joining members, and to convert pre-settled status to settled status.
Making a late application for inclusion in the scheme may also be needed where it is identified that an eligible person has failed to apply on time. This may arise during a right to work check, or where a business is in the process of considering immigration routes for a new hire to enter the United Kingdom.
For further details of some of the action points and considerations associated with using the EU Settlement Scheme, see "Home Office confirms important information for EU Settlement Scheme participants".
The Home Office's temporary adjusted right to work check process that was introduced to address the logistical issues created by the covid-19 pandemic is scheduled to end on 6 April 2022 (for further information, see "Changes to right to work checks from 6 April 2022"). Online checks for those with biometric residence cards, biometric residence permits and frontier worker permits will become mandatory from the same date. Employers will need to think about appropriate changes to internal processes to be able to manage right to work checks in a compliant manner.
In addition, employers must continue to be mindful of the appropriate steps to take on discovering that a prospective or existing employee failed to apply for status under the EU Settlement Scheme on time, despite being entitled to do so (for further information, see "Further right to work check changes and how to avoid some pitfalls").
Amendments to family, private life and settlement routes
The independent chief inspector for borders and immigration is undertaking an inspection into the processing of family visas, which is due to be delivered in 2022. The Home Office has also confirmed that simplification of the family, private life and settlement routes is planned, which will likely be timed to take the inspection findings into account. Although no clear date has been identified for the amended rules to come into effect, engagement with stakeholders suggests it is likely to be in Autumn 2022.
Simplification and reform of these routes may be beneficial for employers as it may provide a more streamlined, flexible and cost-effective option than employer sponsorship for some individuals. It may, in some cases, be an alternative option where a prospective employee is not eligible for sponsorship.
It is possible that the Home Office will review visitor visa arrangements during 2022, in line with a recommendation from the migration advisory committee to consider accommodating time-limited essential work travel to the United Kingdom within these (for further details, please see "What can we expect from the new Global Business Mobility route?")
For further information on this topic please contact Andrew Osbourne, Supinder Singh Sian, Stephen O'Flaherty or Kathryn Denyer at Lewis Silkin by telephone (+44 20 7074 8000) or email ([email protected], [email protected], stephen.o'[email protected] or [email protected]). The Lewis Silkin website can be accessed at www.lewissilkin.com.