The updated Immigration Rules will be available online from 4
April 2024.
You can view the changes to the Rules in the
Statement of Changes in Immigration Rules, HC 590. These only
outline the changes being made to the existing Immigration Rules
rather than showing what they will look like in full. We are happy
to assist with any queries on what the new Rules will be and how to
interpret them.
transitional arrangements for Skilled Workers?
Anyone already on the Skilled Worker route or who is assigned a
CoS before 4 April 2024 (but due to a planned SMS system outage,
the deadline to assign a CoS is brought forward to 19:00 BST on 2
April 2024).
These workers continue to benefit from the transitional
arrangements provided they have continuous permission under the
Skilled Worker route when seeking to extend, change employer
(unless their occupation is listed Appendix Skilled Occupations,
Table 2a because it is below A-level equivalent following
reclassification under SOC 2020) or settle before 4 April
2030.
new arrangements for Skilled Workers?
Anyone not subject to a transitional arrangement, who is
assigned a CoS on or after 4 April 2024. This includes someone
applying for Skilled Worker entry clearance coming to the UK for
the first time or someone switching into the Skilled Worker route
from within the UK for the first time.
visa expires after 4 April 2024, can they use the lower salary
thresholds under the transitional arrangements?
Yes, they will be eligible to rely on transitional arrangements
provided the conditions at Question 2 above are met. Employers
should consider seeking legal advice, if needed, to ensure the
correct salary threshold is applied to the Skilled Worker in
advance of them making their application.
years, do we need to review their salary and occupation code again
before they apply for indefinite leave to remain (to settle) in the
UK? Presumably we would need to consider the most up-to-date SOC
rates, which means it could be significantly higher due to further
inflationary increase etc?
Yes, and the salary threshold applicable may vary for each
Skilled Worker in this position.
Under the changed Rules, if a Skilled Worker is subject to
transitional arrangements (see Question 2 above for further
details), they will need to apply by 3 April 2030 and meet the
higher of £29,000 or the going rate listed in Table 2 or 2a
of the new Appendix Skilled Occupations.
Those who cannot rely on transitional arrangements will need to
meet the higher of £38,700 or the going rate listed in Table
1 of the new Appendix Skilled Occupations.
There are exceptions to the general rule.
Between now and when the worker is due to settle, the Home
Office may decide to increase the applicable general and/or going
rate salary thresholds again.
Employers should consider seeking legal advice, if needed, to
ensure the correct salary threshold is applied to the Skilled
Worker in advance of them making their application.
on a Student visa completes their course, provided they submit the
application for immigration permission within three months? We have
an employee who is finishing their course in May and will benefit
from the transitional arrangements if their CoS is assigned by
19:00 on 2 April 2024.
All Skilled Worker applicants must ensure they submit their
immigration application no more than three months after the date
their CoS is assigned.
Student visa holders who are applying to switch into the Skilled
Worker route from inside the UK must also meet one of the following
additional requirements:
- They must have completed their sponsored course of study;
or - They must be studying a full-time degree or higher level course
at a Student route sponsor with a track record of compliance, and
the CoS must have a start date no earlier than their course
completion date; or - They must be studying a full-time PhD at a Student route
sponsor with a track record of compliance, and the CoS must have a
start date no earlier than 24 months after the start of the PhD
course.
If the Student visa holder expects to complete their course in
May 2024 it should not present a problem for the CoS to be assigned
by 19:00 on 2 April 2024.
However, the start date should be carefully selected. This must be
no earlier than the course completion date, no more than three
months after the immigration application will be submitted, and no
more than six months after the date the CoS is assigned.
for two years, does this mean they can only apply under the new
entrant discount for a further two years?
A person seeking to rely on the new entrant discount is allowed
a maximum of four-years with immigration permission as a Skilled
Worker, Graduate and/or Tier 2 Migrant. This permission does not
need to be continuous to be counted.
It is important to carefully calculate the end date of the CoS to
ensure the immigration permission that would be granted does not
exceed this maximum. The calculation must take into consideration
that immigration permission granted under the Skilled Worker route
will expire 14 days after the CoS end date.
the Graduate route looking to switch at the end the year?
A Graduate visa holder switching at the end of 2024 cannot make
use of the transitional arrangements and will be subject to the new
salary thresholds set at the 50th percentile.
If relying on the new entrant tradeable points option (Option
E), their salary must equal or exceed both £30,960 per year
or 70% of the going rate for the occupation code.
After that, if they are not eligible to rely upon another
tradeable points option that attracts a salary discount, the
minimum salary for their extension will be £38,700 or the
going rate for the occupation code.
As a reminder, it is important to ensure the maximum four-year
period allowed for new entrants is calculated correctly. See
Question 7 above for further information.
is it strictly under 26?
application.
occupations are based on a 37.5-hour working week. Can we offer a
35-hour working week if the salary still equates to the relevant
going rate, or threshold?
than 37.5 hours, provided the salary offered is at or above the
general threshold or the going rate, whichever is higher. The
general threshold cannot be pro-rated, however the going rate
can be pro-rated based on the number of hours the applicant will
actually work. For example, if the relevant going rate in Appendix
Skilled Occupations is £45,000 for a 37.5-hour week, then the
pro-rated going rate figure for a 35-hour week will be
£42,000.
worker visa, if the individual is renewing after 4 April 2024,
would we need to now meet that new salary, £23,200 if, for
example, they were renewing in October?
Eligible Health & Care workers will apply using tradeable
points option K.
Under this tradeable points option, the salary must equal or exceed
both £23,200 per year and the going rate for the occupation
code.
sponsorship from one employer to another. If after 4 April 2024,
would we need to meet the £23,200 for those on the Health and
Care visa?
Tradeable points option K will be applied to all eligible Health
& Care workers whose CoS is assigned on or after 4 April
2024.
threshold AND the going rate threshold that have to be met, or one
or the other?
The requirement is for the salary to equal or exceed both
£30,960 per year and 70% of the going rate for the occupation
code. The higher threshold must be paid.
We were in the process of deciding whether to apply to become a
Skilled Worker sponsor, because we have two Graduate visa holders
working for us that we would like to retain. Now it looks like the
cost and burden of becoming a sponsor will be too high.
Can we terminate their employment contracts with notice at the
expiry of their Graduate visas? They knew from the start that we
did not have a licence to sponsor, but we did say we would look
into obtaining a licence. We made no guarantees.
You should ensure you ask whether the employees may be eligible
for, or have obtained, any other type of visa that would enable
them to work (e.g. dependant or partner) before proceeding to
termination.
Termination of employment based on sponsorship considerations
(as here) may generate the risk of an indirect race discrimination
claim in the employment tribunal. There may also be the risk of an
unfair dismissal claim if the employees have the requisite level of
continuous service.
Whether your decision to terminate is actually indirectly race
discriminatory will turn on whether you can persuade a tribunal
that your decision to terminate was “objectively
justified”. You would be relying on the cost and burden of
becoming a sponsor to underpin your justification arguments.
Unfortunately, the law in this area is underdeveloped. What little
case law we have is not favourable to employers that attempt to run
costs-based arguments. The leading case on this topic is old (and
long predates the current, costly sponsorship system), but the case
and its principles remain binding on tribunals. Accordingly, there
is arguably more scope for success in running costs-based arguments
than there once was, but absolutely no guarantees of success.
I have an employee who has a wet ink stamp in their passport
confirming that they indefinite leave to remain in the UK. How do
they apply for a UKVI account?
The Home Office has recently updated its
eVisa information guidance. It confirms that if a person has a
wet ink stamp in their passport confirming a grant of indefinite
leave, they should make a
‘no time limit’ application. Assuming the
application is successful, they will get a BRP. Once they have
their BRP, they can create their UKVI account.
The Home Office plans to stop issuing BRPs before the end of
2024. It is not yet clear what process the Home Office may put in
place to set up a UKVI account for individuals who have immigration
permission but no BRP by the time BRPs are phased out. On
the
eVisa information guidance webpage, there is an option to
sign up for updates.
remain in the UK if they don’t qualify for an extension under
the transitional salary threshold?
When a Skilled Worker’s sponsorship comes to an end, the
sponsor is required to submit a report on the Sponsor Management
System within 10 working days of their last day of employment.
After the report is made, the Skilled Worker’s
immigrations status will be cancelled if, at the time cancellation
is considered, the individual has more than 60 days remaining on
their immigration permission. Otherwise, it will simply expire. The
Home Office will issue a cancellation notice, usually by email or
by post to the Skilled Worker’s last known address. The
cancellation notice will normally state that the individual’s
permission will be cancelled so that it will expire 60 days from
the date of the cancellation notice.
The individual should either submit a fresh immigration application
or leave the UK before their immigration permission expires.
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