New Immigration Rules came into force in the
UK on 4 April 2024 which affect employers who sponsor workers under
the Skilled worker or Global Business Mobility: Senior or
Specialist Worker routes.
SKILLED WORKER CHANGES
Broadly, the main changes are:
- The minimum salary threshold for this route has been increased
from £26,200 to £38,700 per year; - The way that the minimum occupation-related going rate salaries
are calculated has been amended. Instead of being calculated by
reference to the 25th percentile of all wage earners in a
particular occupation, it is now being calculated by reference to
the 50th percentile (median) of all wage earners in a particular
occupation. This means that those being sponsored under the Skilled
Worker route will now need to be paid an annual salary of more than
either £38,700 or the bottom fifty per cent of all those
working in the relevant occupation, whichever is the higher; - The Standard Occupational Classification (“SOC”)
codes used for determining whether a role meets the required skills
threshold and the salary that must be paid to someone being
sponsored to work in an occupation covered by that code have been
updated to SOC 2020 from SOC 2010. Transitional provisions have been
put in place to enable individuals who are currently sponsored
under the deleted occupation codes to be able to extend or apply
for indefinite leave to remain (“ILR”) in the UK; - The Shortage Occupation List (“SOL”) has been
replaced by a new Immigration Salary List (“ISL”). This
is significant as there are currently fewer jobs on the ISL than
were included on the SOL; - The supplementary employment provisions have been liberalised.
Skilled Workers are now permitted to undertake supplementary
employment in any occupation that is eligible under the Skilled
Worker route.
TRANSITIONAL ARRANGEMENTS
Where an individual is sponsored under a Certificate of
Sponsorship (“CoS”) assigned before 4 April 2024, they
will continue to be able to benefit from a minimum salary threshold
and going rate salaries calculated by reference to the 25th
percentile while they continue to remain in the UK under the
Skilled Worker category. However, in order to take account of
inflation since the original thresholds were implemented, the
minimum salary threshold is being raised to £29,000, which
will apply when a CoS is assigned to these individuals on or after
4 April 2024. The minimum occupation-related going rate salaries
are also being adjusted in line with the most recent salary data,
which has resulted in a significant increase in the salary levels.
Again, these will apply where an individual who currently has
immigration permission to remain in the UK on the basis of a
Skilled Worker CoS assigned before 4 April is then issued with a
new CoS after this date.
It is important to note that these changes will only apply to
Skilled Workers when they come to submit applications to extend
their stay or change employment in the UK, or apply for ILR.
Furthermore, those in the UK under the Skilled Worker category will
only be able to rely on salaries calculated by reference to the
25th percentile if their applications are submitted before 3 April
2030. All those applying under the Skilled Worker category after
this date will have to comply with the new, 50th percentile, salary
requirements.
GLOBAL BUSINESS MOBILITY: SENIOR OR SPECIALIST WORKER
CHANGES
Broadly, the main changes are:
- The minimum salary threshold for this route has been adjusted
for inflation and has therefore increased from £45,800 to
£48,500 per year; - The minimum occupation-related going rate salaries will
continue to be calculated with reference to the 25th percentile,
again adjusted in line with the most recent salary data.
The High Earner threshold has been maintained at
£73,900
Transitional provisions will apply to those already in the UK
under the Senior or Specialist Worker category, or who make their
initial applications on the basis of a CoS assigned before 4 April
2024, provided the application is made before 3 April 2030. These
work in a similar way to the transitional provisions for the
Skilled Worker route, including allowing individuals in the deleted
occupation codes to be able to extend their stay in the UK.
WHAT THIS MEANS FOR UK EMPLOYERS
IMMIGRATION CONSIDERATIONS
In the short term, UK employers do not need to take any action
in relation to their workers who are currently sponsored under the
Skilled Worker or Senior or Specialist Worker routes. For those UK
employers sponsoring individuals under the Senior or Specialist
Worker route, they simply need to be aware that the minimum salary
thresholds for this category have been increased in line with
inflation.
However, in the medium term to long term, UK employers will need
to ensure that, where they are looking to extend the stay of a
current sponsored worker, to sponsor a worker who is already in the
UK under the Skilled Worker category or to assist a Skilled Worker
with their application for ILR, they take into account the
inflation-adjusted minimum salaries.
Where UK employers are looking to employ migrant workers who are
being sponsored under the Skilled Worker category for the first
time, they will need to ensure that the salaries that they are
offering meet the significantly higher minimum salary thresholds
for the Skilled Worker category.
EMPLOYMENT CONSIDERATIONS
Employers should also ensure that, if they do sponsor a worker
under the Skilled Worker category on the basis of these new salary
thresholds, this does not inadvertently lead to discrimination
issues caused by a sponsored worker being paid more than a local
worker.
This is because, if the only reason a local worker is paid less
is due to the fact that they are not a sponsored worker subject to
the minimum salary thresholds, the local worker could bring a claim
in the Employment Tribunal for direct race discrimination. Whilst
it is not possible to defend a direct discrimination claim on the
basis of “objective justification”, employers may be able
to succeed in defeating any such claim on the basis that the
difference in treatment is due to the requirements of the UK
Immigration Rules and not due to a specific race or nationality. It
remains to be seen whether an Employment Tribunal would accept that
argument.
There is also the potential for equal pay issues to arise if
employees of different genders are paid different salaries for the
same work, although we believe that such a claim could be defended
in this scenario if the only reason for the difference was
compliance with the UK Immigration Rules.
In reverse, if an employer decides not to hire someone because
they require a sponsor licence and would need to be paid more than
the local workforce, this would create a discrimination issue
without an obvious defence.
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comprehensive treatment of the subject matter covered and is not
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