Spotlight: employer-sponsored immigration in United Kingdom

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Employer sponsorship

i Recent history

Over the past half century, a variety of routes became available to those who wished to enter the United Kingdom for working purposes or to establish or join a commercial enterprise. In February 2005, the then Prime Minister, Tony Blair, announced that the government wished to dramatically alter the immigration landscape by sweeping away many of the various employment-based immigration routes, reducing them to five categories or ‘tiers’. Persons who fell into any of the five tiers would have their applications determined by an objective PBS linked to specified attributes, such as salary, academic qualifications and skill levels. This structure was intended to remove any element of discretion concerning who was, and who was not, permitted to enter the United Kingdom for work purposes.

This dramatic change was coupled with an intention to make employers themselves responsible for assigning work approvals (to be known as COS), based on the objective application of the number of points achieved by a particular overseas migrant. For compliance checks to be carried out by the Home Office more easily, any employer wishing to employ overseas migrants pursuant to a COS is required to hold a sponsor’s licence permitting it to do so. A complex series of passwords and user IDs are provided to each employer sponsor, and all relevant information about an overseas migrant is held in a central government computer bank called the sponsor management system.

In view of the radical nature of these changes, they took over three years to be implemented. By November 2008, the PBS with its five tiers had been rolled out and since then the most radical changes to the employment categories of the UK immigration process have been operational.

In February 2020, the government announced its plans for a new UK immigration PBS to be introduced at the end of the Brexit transition period. The new PBS was open to applications from 1 December 2020 and came into force on 1 January 2021. The purpose of the new framework is to ensure that the country remains open for business and is attracting the skills and attributes needed by key sectors of the economy and regions of the country while at the same time reducing overall migration numbers and boosting the skills and opportunities of local workers. New categories largely based on the previous tiered system are now in operation, with further reforms coming into effect.

Perhaps the most politically charged part of the new system is that there is no route for ‘low-skilled’ workers, even on a temporary or transitional basis. Instead, the government argues that there will be sufficient labour in the United Kingdom from among the 3.2 million people who have already applied to remain under the EU settlement scheme, as well as non-EU citizens who come as dependants of skilled migrants.

ii PBS – the regime

In January 2021, the five-tiered PBS was replaced by a PBS with stand-alone categories that largely resemble their predecessors. Although some employment routes do not fall within the PBS, the vast majority do.

The PBS includes routes for investors, entrepreneurs, those with ‘exceptional talent’ and graduate entrepreneurs (the entrepreneur and graduate entrepreneur routes are now closed to new applicants, and the exceptional talent route closed on 20 February 2020).

The skilled worker category is applicable to highly skilled employees performing at or above school-leaver level, whereas the intra-company transfer (ICT) category is applicable to highly skilled employees performing graduate-level roles or above, divided into subcategories of ICTs and intra-company graduate trainees.

The PBS, additionally, includes routes for students and temporary work, which further incorporate myriad different categories, including people permitted to come to the United Kingdom under youth mobility schemes (primarily replacing the old working holidaymaker route available to young Commonwealth citizens), government-approved exchanges, those wishing to undertake internships and those of high ability in the arts, sports or entertainment sectors.

In any of the above categories, only those who secure the requisite number of points are eligible to seek entry to the United Kingdom for the purposes of employment or study. Of the employment-based routes, the following are the most prevalent and the most widely used by UK companies that need to employ migrant labour.

iii Employment categories

These applications are sponsored by employers that either wish to transfer their overseas employees to the United Kingdom or to hire a new recruit. Table 1 of the Immigration Rules Appendix Skilled Occupations lists the occupations for which visa applications under this category can be accepted.

In 2020, this category was divided into two primary types: skilled worker for new hires and intra-company for overseas employees of a UK business (either at graduate or established worker levels). In April 2022, the latter category started to be replaced with a new global business mobility category, which is itself subdivided as follows.

Senior or specialist worker

The senior or specialist worker route is nearly identical to the ICT route that it replaced. The category supports inwards investment and trade by allowing multinational employers who are of senior manager level or who are specialist employers in a particular working area to transfer key company personnel from overseas to their UK branch.

Within the senior or specialist worker category, the role must be of a suitable level and salary. The applicant must, additionally, be a current employee of the sponsor group and, unless they are applying as a high earner (earning over £73,900 per year), must have worked outside the United Kingdom for the sponsor group for a cumulative period of at least 12 months. Additionally, the salary for the role must meet or exceed the going rate for the role and the general salary requirements for the visa. The previous ICT route required an overseas migrant to earn an annual salary of at least £41,500. This has now increased to £42,000, except where the migrant is applying for permission to stay through transitional arrangements.

Transitional arrangements are available for those falling into certain occupation codes at the appropriate skill level for a senior or specialist worker and will allow them to apply for permission to stay, being sponsored to continue working in the same job for the same employer in that occupation code. It is available for migrants who were previously granted permission as an ICT migrant under the rules in force before 6 April 2011 or who were a work permit holder and who have since then continuously had permission in the current category.

The desire to continue using this category as a way to overcome particular labour shortages is evidenced in the current list of occupations that are eligible to use the transitional arrangements. The occupational codes listed are those in the arts sector, including actors, dancers, designers and authors.

However, migrants who entered the United Kingdom in this category, or any of the category’s predecessors under the Immigration Rules in force after 6 April 2010, are not permitted to obtain ILR. This requirement is intended to discourage overseas migrants from coming to the United Kingdom purportedly to fill temporary labour shortages but whose real intention is to settle permanently in the county.

This restriction was further tightened in April 2011 when rules were introduced that required this category of overseas migrants to leave the United Kingdom after they had lived and worked in this category for five years (or, since January 2021, nine years for those earning in excess of £73,900 a year). The basic premise remains the same, however, as even these highly paid executives will be required to leave the United Kingdom at the end of this extended period, unless they switch to skilled worker status in the meantime. This category maintains a cooling-off period, whereby a migrant is permitted to hold leave in this category for a period of up to five years in any six-year rolling period, or up to nine years in any 10-year period for high earners. The period of leave is calculated as a cumulative total of leave held on the new global business mobility routes and the old intra-company routes.

Global business mobility migrants are exempt from the requirement of having to establish their English language ability but are required to pay the immigration health surcharge for themselves and their dependants. Their employees must pay the immigration skills charge (introduced from April 2017) of £1,000 per year of visa validity (£364 for small or charitable sponsors).

Graduate trainee

The global business mobility graduate trainee route replaces a near identical (but simplified) predecessor, the intra-company graduate trainee route. This category is for graduate trainees within, usually, a multinational company who have been employed abroad for at least three months and who are being transferred to the UK parent, branch or subsidiary of the same organisation as part of a structured graduate training programme. The programme must define the progression towards a managerial or specialist role and will require the UK employer to provide a detailed training programme that meets the requirements of this subcategory.

The role must also be graduate level, and the migrant should be paid the general salary requirements for a job listed in one of the occupational codes, which is £23,100 per year, or the going rate for the job listed, which for a graduate is 70 per cent of the prorated going rate listed in the Appendix. The grant of permission will count towards the migrant’s total of five years’ stay in the United Kingdom under the global business mobility route.

UK expansion worker

The global business mobility UK expansion worker route is for overseas migrants assigned by their sponsors to undertake business expansion work in the United Kingdom. The route is aimed at replacing the sole representative provisions in the representative of an overseas business route. Senior executives or specialist workers of an overseas company can come to the United Kingdom to establish a wholly owned subsidiary or register a UK branch for that overseas parent company. There must be no existing branch, subsidiary or other representative in the United Kingdom, although if the UK entity merely has a legal existence but does not employ staff or transact any commercial activities, the route may still be available.

The new route is also designed to accommodate those overseas migrants who do not necessarily fall into the senior or specialist worker route because their sponsor company has not yet begun trading in the United Kingdom. Therefore, the requirements are much the same as those needed for the senior or specialist worker route. Generally, the UK expansion worker visa will be granted for a period of 12 months or less, and this particular route can be held for a maximum of two years of the total of five available to those overseas migrants with permission to stay in the United Kingdom under the global business mobility routes.

Service supplier

Overseas migrants are eligible for the global business mobility service supplier route where they are undertaking a temporary work assignment in the United Kingdom where such work falls into one of two categories. Either they are a contractual service supplier employed by an overseas service provider to undertake the specific work in the United Kingdom or they are a self-employed independent professional based overseas. The route will replace the contractual service supplier and independent professional provisions in the temporary work – international agreement route in a bid to simplify the PBS immigration routes.

The overseas migrant must have obtained a contract for their work in the United Kingdom, which should be registered with the Home Office and be for a service that is covered by one of the United Kingdom’s international trade agreements. The overseas work requirement will be met where a migrant has worked for the overseas service provider for a cumulative period of 12 months outside the United Kingdom and is currently working for that provider. The migrant should be a service supplier who, in most cases, has a university degree or equivalent-level technical qualification and must have at least three years’ professional experience (holding any relevant professional qualifications required for their role) or at least six years if they are self-employed or supplying chef de cuisine services under the UK–CARIFORUM Economic Partnership Agreement. Additionally, the nationality of the overseas migrant should be the same as the country in which the overseas service provider is based, though there are some exceptions, depending on the service being provided. There is no points-based salary requirement for this route.

Secondment worker

Where a migrant is being seconded to the United Kingdom as part of a high-value contract or investment by their overseas employer, they may be eligible for the global business mobility secondment worker route. This route is the only route in the global business mobility scheme that is not replacing in whole or in part any other PBS immigration options and is a wholly new provision.

The route is similar to the global business mobility service supplier route in that there are no specific points-based salary requirements for this route; instead, it is necessary to demonstrate the overseas work requirement. Asides from this, the general requirements of the route still mirror all other global mobility routes.

Skilled worker

The skilled worker category is the main route for sponsorship for migrants to be employed in the United Kingdom. It replaces the previous Tier 2 (General) category with several significant amendments. There has been a suspension on the cap of the number of migrants who can come to the United Kingdom, and the resident labour market test has been abolished. Further, the skills threshold was reduced from RQF6+ (graduate level to above) to RQF3–5 (A level or equivalent). The general salary threshold has been lowered from £30,000 to £25,600, and the new entrants’ salary rate will be 30 per cent lower than the rate for experienced workers.

Despite changes to the requirements, in 2021, over 90 per cent of skilled worker applications were for roles at RFQ6+ level, and this may be because the cost of hiring a worker from abroad for a lower-level position is not feasible. The move away from free movement and the end of the EU settlement scheme in the summer of 2021 have meant that EU nationals now have to apply for skilled worker visas. Applications from EEA and non-EEA nationals for this visa are almost 50:50.

COS

The route to applying for a skilled worker visa from within the United Kingdom has been widened, and migrants who are in the United Kingdom on a non-temporary visa (i.e., not a visitor visa) are eligible to apply for the scheme from in-country. This is a significant departure from the previous system, where there were very limited routes to an in-country application. An employer that wishes to hire a migrant who is already in the United Kingdom on a residence visa will be able to assign a COS to that individual without Home Office approval.

Defined COS

This ‘defined’ category applies to all migrants wishing to take up skilled worker employment in the United Kingdom and are applying from outside of the United Kingdom. Unlike every other COS, the sponsoring employer is unable to assign a COS to that individual without prior approval from the Home Office. The panel process from the previous system has been removed; approval can now be obtained by submitting a defined COS request at any time via the Home Office’s computer system. These requests are processed by the Home Office and the outcome is intended to be communicated within 24 hours.

Eligibility requirements

There are certain common themes and requirements applicable to all skilled worker and ICT migrants. In addition to securing sufficient points for salary levels and academic skills levels, with the exception of ICT migrants, every overseas migrant must establish English language proficiency. The salary to be paid to any skilled worker migrant must also be no less than the prevailing salary applicable to that role, as specified within the Home Office’s Standard Occupational Classification (SOC) codes. These were revised and simplified in April 2014 and are likely to be reviewed annually.

The April 2014 revisions to the SOC codes were wide-ranging. The number of SOC codes was substantially reduced and for most (although not all) the prevailing salary rates were increased. They were further increased in 2017, and in April 2019 the new salary rates were both increased and decreased to reflect the latest available occupational salary data for each job type. The list of shortage occupations was reduced, primarily by removing a number of healthcare professionals from the previous list, with the exception of nurses, who were reinstated to the list in early 2016. All jobs must now meet the academic qualification RQF3, which applies to A level roles. The latest revisions to the codes took place in October 2019, when a significant number of jobs were added to the shortage occupation list, in particular in the healthcare sector, following a review by the MAC.

Overseas migrants must satisfy the Home Office that, for a minimum period of 28 days prior to applying for their visas, they have access to minimum cash amounts (known as maintenance) held by them in a regulated banking institution. In the case of COS holders, the minimum sum is £1,270. If the applicant has a dependent partner, this figure increases by £285 and then by £315 for the first dependent child (under 18 years old) and by £200 for any other dependent child. In the case of A-rated sponsors (i.e., employers), the relevant maintenance levels for both the employee and dependants can be ‘guaranteed’ by that employer, the effect of which is that the overseas migrant does not personally have to provide evidence of minimum cash savings. B-rated sponsors, however, are not permitted to give such a guarantee, and any overseas migrant wishing to be employed by a B-rated sponsor must evidence the minimum cash savings amounts. Employers of skilled worker migrants are no longer required to write a separate letter to confirm that they will guarantee maintenance for those dependants in circumstances where the dependant is applying for his or her visa at the same time as the primary applicant. Further, where an applicant (either a main applicant or their PBS dependant applying at a different time) has been living in the United Kingdom for 12 months, they are not required to show maintenance.

The resident labour market test was removed in the PBS, although the employer must still be able to demonstrate that the job position is a genuine vacancy. The job must exist, must genuinely be at the appropriate skill and salary level and must not have been created for immigration purposes. Recruiting in a particular way has been indicated as only one of the many factors that may be taken into account by the Home Office. Other considerations can include the job description, whether the sponsor credibly could have a need for that job and the sponsor’s history of compliance with the immigration system.

To qualify for a skilled worker COS, migrants will be required to score 70 points overall across different categories, including a job offer with an approved sponsor at an appropriate skill level, English language proficiency and salary level. Fifty of those points must be earned by meeting mandatory criteria for the application. They can obtain these mandatory points by having an offer of a job by an approved sponsor, a job offer at an appropriate skill level and English language skills at intermediate level. A migrant must then obtain a further 20 ‘tradeable’ points through a combination of points for their salary, a job in a shortage occupation or a relevant PhD – totalling 70 points for the application. Points awarded for salary are tradeable on a sliding scale so that individuals with a salary of £23,040 will still be able to earn points for salary. The job must also meet the ‘going rate’ requirement for the occupation.

Individuals earning £20,480 or more may still be eligible under the scheme through the acquisition of points in other areas, such as working in a sector where there is a skills shortage or having a PhD in a subject relevant to the job. The MAC has been commissioned to produce a shortage occupation list covering all jobs encompassed by the skilled worker route and to keep the list under regular review. The jobs that meet this requirement are all set out within the SOC codes set out in Appendix Skilled Occupations of the Immigration Rules. Jobs in the shortage occupation category may be paid 80 per cent of the going rate for the occupation code, provided that the salary is minimum £20,480 per year.

‘New entrants’ to the UK labour system will continue to benefit from a reduced salary threshold for three years in the new system. A new entrant skilled worker includes those switching from the student or graduate route to the skilled worker route and those under the age of 26, as well as those working towards recognised professional qualifications or moving directly into postdoctoral positions.

Set out below is the current points table applicable to overseas migrants hoping to qualify for a skilled worker job. In this regard, it should be noted that the only salary levels permitted to be taken into account are those that are guaranteed to be paid, and not those that vary, such as discretionary or performance-based bonuses.

The points requirements for ICT migrants are more simplified, and no points are tradeable. Set out below is the current points table applicable to overseas migrants hoping to qualify for an intra-company job. As there is no English language requirement in the intra-company category, a migrant is only required to score a total of 60 points.

Applicants in these categories are required to pay the immigration health surcharge. Additionally, those prospective migrants who are coming from certain countries where tuberculosis continues to be a major health risk (such as China, Hong Kong, India, the Philippines, Russia and Sri Lanka) are required to obtain from an approved medical practitioner a certificate to confirm that they are not suffering from tuberculosis.

Unlike ICT migrants, overseas migrants employed in the United Kingdom with the benefit of a skilled worker COS (whether defined or undefined) are permitted to apply for ILR once they have lived in the United Kingdom and worked in a skilled worker category for five years (time spent in the Tier 2 (General) category can be combined with time under the skilled worker category to meet the five-year eligibility period). They will, however, be required to establish at that time that they still meet all the criteria applicable for continuing approval of their skilled worker employment, including confirmation from their employer that they are still required for the job. This requirement was introduced on 6 April 2011.

In addition, from April 2016, all Tier 2 (General) – now skilled worker – ILR applicants must meet a minimum pay threshold as well as the prevailing wage for their particular job. This amount was lowered under the new PBS, and for applications submitted from January 2021, the minimum threshold to be met is £25,600 per annum. This threshold is a decrease of nearly £10,000 from the previous system.

The maximum permitted period of stay under the previous system for Tier 2 (General) has been removed, and a skilled worker migrant can extend their permission to remain in the United Kingdom indefinitely if they do not apply for ILR. Skilled worker migrants can obtain a maximum initial period of leave of five years.

The cooling-off period under the old system has also been largely abolished. There is no cooling-off period for skilled worker migrants, although the restrictions remain for ICT migrants in a different configuration.

A final point on procedural matters is that if skilled worker migrants are in the United Kingdom and fail to apply to renew their stay before their visa expiry, there is a 14-day ‘grace period’ given to them so that there will be no adverse effect on their immigration history, provided that they apply to renew their status (in country) within that 14-day period with persuasive reasons for the delay.

When applying for ILR, overseas migrants are permitted to spend as many as 180 days in each year out of the United Kingdom during the prescribed five-year period without continuity of stay being broken. The effect of this is that, provided that the overseas migrant does not spend more than 900 days out of the United Kingdom during the five years leading to eligibility for ILR, and provided that these absences do not exceed 180 days in a year and are all work-related, approved annual leave or for compassionate purposes, ILR can be approved. This requirement was first introduced in December 2012 to correct inconsistencies in approach by Home Office caseworkers when considering ILR applications and whether discretion on length of absences should be exercised or not. For periods of leave granted after January 2018 that will contribute to the qualifying period for ILR, the 180-day absence limit is calculated on a rolling basis, and the absences will be taken from within any 12-month period rather than a given year. Leave issued before this date will still be calculated in consecutive 12-month periods. The same also applies to PBS dependants if applying after January 2018.

These changes are part of the government’s continuing wish to separate the historical link between temporary employment and permanent residence. Whether or not any additional changes in this regard will occur is subject to ongoing consultation.

From April 2017, the requirement to provide a criminal record certificate was extended to include Tier 2 (General) entry clearance – now skilled worker – applicants coming to work in the education, health or social care sectors; partners of the main applicants as above; and partners applying overseas to join an existing skilled worker migrant working in one of those sectors. Certificates must be provided for any country in which the applicant has resided for 12 months or more (whether continuous or in aggregate) in the past 10 years prior to their application while aged 18 or over. Certificates from the applicant’s most recent country of residence will normally only be considered valid if they have been issued no earlier than six months before the application date. Certificates from countries prior to the applicant’s most recent country of residence must normally cover the entire period of residency (up to 10 years prior to the application date) but will otherwise be considered valid indefinitely.

At a later stage, the government also intends to create a ‘broader unsponsored route’ within the PBS to run alongside the employer-led system. Qualifying individuals will be able to come to the United Kingdom without a job offer. The government plans suggest that a cautious approach is being taken in the development of this route, presumably to maintain the integrity of its policy to take back control of immigration numbers. The plans suggest that the route will be capped and monitored carefully during an implementation phase. Example characteristics for which points could be awarded include academic qualifications, age and relevant work experience.

Health and care worker

A new category specifically for skilled migrants working in the healthcare sector was introduced in August 2020, assuredly in response to the contributions of health and care workers in the United Kingdom during the covid-19 pandemic. The health and care visa currently exists within the purview of the skilled worker visa. It allows medical professionals to come to or stay in the United Kingdom to do an eligible job with the NHS or an NHS supplier or in adult social care. A migrant intending to apply under this category must meet the requirements of the skilled worker visa and must, additionally, be a qualified doctor, nurse, health professional or adult social care professional working in an eligible health or social care job.

Migrants and their dependants in the health and care worker category pay lower application fees and are exempt from paying the immigration health surcharge. The application process for this category is also intended to be streamlined, with a dedicated team handling applications, providing decisions more quickly than other working categories.

The end of free movement has had a significant effect on the health and care sectors, and investigations were published by the MAC in 2022, which highlighted the exact impact of the changes. In the meantime, care worker jobs have been made eligible for the heath and care visa and placed on the shortage occupation list. The rate of applications for senior care workers has risen through 2021 to between 400 and 500 a month.

Scale-up

From April 2022, a new scale-up route has been made available in order to allow overseas migrants with a job offer at the required skill level from a recognised UK scale-up organisation to qualify for a fast-track visa.

The premise behind this route is that overseas migrants apply to obtain entry clearance as a scale-up worker before arriving in the United Kingdom. To be granted this leave, the requirements are similar to those for a skilled worker, including sponsorship.

Permission will initially be granted for a period of two years, after which an individual may make an unsponsored application from inside the United Kingdom. Instead of providing evidence of sponsorship for their extension, applicants will have to show that their Pay As You Earn earnings were at least £33,000 per annum or the going rate for their position (whichever is higher) for at least 50 per cent for their time in the route. Such an extension will be granted for three years, and settlement can be reached on the same grounds after this five-year period.

Overseas migrants on this route will be able to enter the country by being employed by a sponsor company.

High potential individual

After being announced in March 2021, from April 2022, a new points-based route has been introduced for recent graduates of top global universities, called the high potential individual route with the aim of continuing to attract the best and brightest to the United Kingdom so that the country maintains its status as a leading international hub for emerging technologies. Work, including self-employed work, is permitted on this route without the need for sponsorship.

Applicants for this route must have a qualification equivalent to either a UK bachelor’s or postgraduate degree qualification from one of the top global universities outside the United Kingdom, as decided by the Home Office in a list published online annually. The Home Office will use three ranking systems to extract their list of universities, with the criteria being that the university must be listed in the top 50 universities in at least two of the following three ranking tables: the Times Higher Education World University Rankings; the QS World University Rankings; and the Academy Ranking of World Universities. The degree should have been awarded within five years of an application being submitted.

English language and financial requirements (for those applying for permission to enter or who have been in the country for less than 12 months) will also have to be evidenced when submitting an application.

Migrants on this route will be granted permission for a period of two years if they are relying on qualifications equivalent to a UK bachelor’s- or master’s-level degree and for three years if they are relying on qualifications equivalent to a UK PhD.

T5 temporary workers

The old Tier 5 route has remained intact and is now called T5 temporary workers. This route is divided into several categories, and its purpose is to enable individuals to enter the United Kingdom for short periods to take up temporary work before returning to their home country. No immigration cap has been imposed on these routes; in most instances, it would be futile to do so, in view of the temporary nature of the roles that overseas migrants will fill. The categories are as follows.

Youth mobility scheme

This largely mirrors the (now defunct) working holidaymaker scheme, which permitted young Commonwealth citizens to enter the United Kingdom for up to two years for the purposes of temporary employment and taking an extended holiday. The requirements under the new scheme remain much the same, as it enables applicants between the ages of 18 to 30 from certain countries to enter and work in the United Kingdom for two years. However, the requirement that such applicants also ‘take a holiday’ no longer applies. The countries that benefit from this scheme are currently limited to Australia, Canada, Hong Kong, Japan, Monaco, New Zealand, South Korea, San Marino and Taiwan, along with British overseas citizens, British overseas territories citizens and British nationals (overseas). The scheme was extended to include San Marino from January 2021 following the end of free movement.

The number of applicants from each country is limited as follows: Australia 30,000; New Zealand 13,000; Canada 5,000; and the remaining countries are allocated 1,000 places each. The selection process in Taiwan is a lottery-based scheme split into two ballots in January and July each year. There is no allocation restriction for British citizens or nationals mentioned above.

Temporary worker

This category was created to enable overseas migrants to take up temporary employment or an internship or to enter the United Kingdom as part of a graduate training programme. Applicants need to be issued with a COS by an ‘overarching body’ that has previously been approved by the Home Office. There are currently approximately 50 registered overarching bodies permitted to assign COS to suitably qualified applicants, all of which must be independent from the employers with whom the overseas migrants will work or undertake their internship programme.

Government authorised exchanges (GAEs) come under this broad category. The maximum period of stay permitted to applicants coming for a work experience programme under Tier 5 (GAE) is 12 months. Work experience programmes that fall within this category will be work experience and internships run by the Bar Council, BUNAC, the Commonwealth Exchange Programme, Fulbright UK/US Teacher Exchange Programme and Tier 5 intern schemes generally.

However, when applicants are seeking entry for GAE research and training programmes, they will continue to be permitted to stay in the country for up to 24 months. Programmes that benefit from the longer period of stay include Chatham House overseas visiting fellowships, Commonwealth scholarship and fellowship plans, sponsored researchers, UK–India education and research initiatives and the US–UK Education Commission (also known as the US–UK Fulbright Commission).

Under the PBS, from January 2021, new categories for religious workers and charity workers to enter the United Kingdom for a short-term period were set up.

The Tier 5 temporary worker visa also has a seasonal worker category. The route was originally available for edible horticulture, poultry production work and specific pork butchery work, though there have been some changes to the eligible occupations in 2021 and 2022. Such occupations initially came under the seasonal workers pilot scheme launched in 2019, but seasonal workers can now apply under the broad temporary worker category. Towards the end of 2021, the government agreed to some temporary visas for various occupations such as heavy goods vehicle drivers and poultry workers, which formed part of a balancing act between maintaining the general principles of the skilled worker route and applying flexibility in the face of employment shortages and other challenges that could have substantial consequences for the economy, particularly in the wake of Brexit.

As of 28 February 2022, haulage drivers transporting food goods no longer have access to this route. Limitations have also specifically been put on pork butchery roles. Applicants could be granted permission for a maximum period of six months if their application was submitted before 6 April 2022, when this route closed for pork butchers. It should be noted that butchers can also use the skilled worker route to remain in the United Kingdom on a more permanent basis. In April 2022, the category was also extended to include roles in ornamental horticulture and a new minimum hourly pay requirement of £10.10 per hour (equal to the minimum hourly rate for skilled workers).

Creative route and sporting route

The routes for creative or sporting individuals have been separated in the new PBS, although the requirements remain similar for each category. This enables artists, entertainers and sportspeople to enter the United Kingdom to perform at a particular event, which may not necessarily be a one-off situation, as it also includes actors taking part in theatrical productions that may last for a considerable period. The visa can be issued for a period of up to 12 months. In the case of sportspeople, they must be internationally established at the highest level, and their presence in the United Kingdom must be regarded as making a significant contribution to a sports event or series of events. In each instance, the employer, or even a management company, agency or promoter, can assign the COS. Where the artist or sportsperson intends to stay in the United Kingdom for less than three months, that individual may be exempted from obtaining a visa or entry certificate before coming here, unless that individual is a visa national (i.e., the citizen of a country for which a visa must be secured before entry to the United Kingdom is permitted for any purpose). Sportspeople seeking to come to the United Kingdom on a temporary basis – 12 months or less – are not subject to an English language requirement.

iv Sponsor obligations

Since the introduction of the Immigration, Asylum and Nationality Act 2006, employers have been subject to an increasing range of obligations, including the requirement to ensure that an overseas migrant has correct work authorisation (through the legal right to work checks), in addition to compliance with numerous sponsorship duties. Along with the 2006 Act, civil penalties were introduced for employers, with fines of up to £20,000 for each unlawfully employed worker, and unlimited fines and up to two years’ imprisonment for knowingly employing illegal workers.

Employers are required to check eligibility to work in the United Kingdom for each new overseas migrant before employment commences, and for those with limited entitlement to remain in this country (i.e., everyone except for UK citizens, EEA citizens and those who are settled here), annual checks were required on their continuing ability to work here. EEA citizens joined this group of migrants on 30 June 2021. Employers now need to check the eligibility of those migrants to work in the United Kingdom as any other overseas migrants. However, the right to work checks have been relaxed, in that once the migrant has complied with the requirements to establish a right to work in the United Kingdom, there is no longer any requirement to check their immigration status annually, and this can be deferred to either their visa expiry date or a date that their employment comes to an end, if earlier. That will reduce the regulatory burden on employers, particularly large employers, that find it difficult to deal with annual checks for a substantial and mobile workforce.

Once a UK employer has been issued with a sponsor’s licence, the Home Office has the power to suspend, downgrade or even revoke the licence. This could have catastrophic consequences for any overseas migrant working for that employer with a sponsored work visa by the employer; for example, if the sponsor’s licence is revoked with immediate effect, that employer is unable to continue lawfully employing that individual. The employee will then have their leave curtailed to 60 days, during which period they must seek alternative employment with a different sponsor, failing which he or she will be required to leave the country together with any family members (and may be subject to the cooling-off period).

The Home Office has not identified all the circumstances in which it will suspend, withdraw or downgrade a sponsor’s licence, but when considering appropriate action, it will consider the seriousness of the sponsor’s failures, whether the sponsor’s acts or omissions are part of a consistent or sustained record of non-compliance, and whether the sponsor has taken any remedial action to minimise those failures. Suspension of a sponsor’s licence will prevent that employer from assigning any new COS, and if the employer attempts to assign a new COS, it is likely that its sponsor’s licence will be revoked.

The Home Office will revoke a sponsor’s licence for a variety of reasons, including where it stops trading for any reason (including insolvency), where it has been issued with a civil penalty for employing one or more illegal workers and the fine imposed for at least one of those workers is the maximum amount, or where a civil penalty has been imposed and has not been paid within 28 days.

A sponsor’s licence will normally be revoked in circumstances where the employer is convicted for any offence introduced by a variety of immigration statutes, including the Immigration Act 1971, the Immigration Act 1988, the Nationality Immigration and Asylum Act 2002, and the Immigration, Asylum and Nationality Act 2006. Licences will also be revoked for any offence relating to trafficking for sexual exploitation or any other offence that shows that a sponsor poses a risk to immigration control.

v Non-PBS employment categories

Very few of the previous employment-based immigration routes have survived the introduction of the PBS, and even fewer will survive the changes that came into force in 2022. However, the most important that have done so are as follows.

Domestic worker in a private household

Although this route for entry to the United Kingdom has been in existence for many years, it was only in September 2002 that it formally became part of the UK Immigration Rules. Provided that the appropriate criteria were met, overseas domestic workers in a private household could accompany their employer to the United Kingdom for an initial period of one year, which would then be extended annually (if the criteria were still met) until they became eligible for ILR after five years’ continuous employment in this category. With effect from 6 April 2012, the maximum permitted stay for such workers is six months for new applicants and only then in circumstances where the overseas employer is coming to the United Kingdom as a visitor. No extensions beyond six months are now permitted, and this route to settlement has been extinguished. Prior to April 2012, a domestic worker in a private household could bring his or her dependants to the United Kingdom, who themselves were permitted to take up employment. Under the new regime, domestic workers are no longer permitted to be joined by their dependants.

Commonwealth citizens with UK ancestry

This is the final remaining immigration benefit reserved only for Commonwealth citizens, and it remains in place because of much diplomatic lobbying by, primarily, the governments of Australia, Canada and New Zealand.

The requirements that the applicant must meet are that he or she is a Commonwealth citizen, has at least one UK-born grandparent and intends to either take employment or seek employment upon arrival in the United Kingdom.

This route is not available to those who have no wish to work but merely have a UK-born grandparent. The applicant must either have a job or intend to find one before the entry certificate will be issued.

The application is submitted to a British consulate in the applicant’s home country or country of residence and, if approved, the visa will be valid for five years. Upon the expiry of that five-year period, the applicant and immediate family members (spouse and children under 18 years of age) are eligible for ILR, provided that either they are working at the time of application or they can evidence attempts to find work in the previous five years. In November 2019, the Home Office issued updated policy guidance for caseworkers confirming that applicants working as unpaid volunteers (or intending to be) will satisfy the working criteria of the application.

Representatives of overseas businesses

Previously, this category included provisions for sole representatives of an overseas company to come to the United Kingdom to establish a wholly owned subsidiary or register a UK branch for that overseas parent company. In 2022, this route was merged into the new global business mobility route as part of the points-based immigration options. Representatives of overseas businesses apply in this category only if they are a media representative. As a result, overseas migrants who would have previously been able to use their time as a sole representative of an overseas business towards settlement will no longer be eligible for settlement under the new global business mobility expansion worker route. A media representative is an employee of an overseas media organisation who is posted to the United Kingdom on a long-term assignment. The route is open to employees of an overseas newspaper, news agency or broadcasting organisation being posted on a long-term assignment as a representative of their overseas employer where there is no requirement to take operational decisions. Those qualifying under the subcategory for employees of overseas news or media organisations will be granted three years’ leave, during which they may work only for the employer in question. Provided that these criteria are met, this status can be extended, following which the media representative (and their immediate family) will be eligible to apply for ILR. There is also an English language requirement for media employees.

Business visitors

The visitor rules have been simplified and the new rules took effect from 1 December 2020. There are now four types of visitor visa: standard visitor; marriage and civil partnership visitor; permitted paid engagement visitor; and transit visitor.

Business visitors can come to the United Kingdom under the standard visitor category. They can visit the United Kingdom for different business reasons, such as attending meetings, conferences or trade fairs or negotiating contracts. Business visitors must remember that there is a distinction between working in the United Kingdom and entering the United Kingdom for business purposes. The former requires express permission to work in the United Kingdom, whereas the latter does not.

‘Permitted paid engagements’ visitor category

The UK Immigration Rules have only rarely permitted ‘short-term working’ activities, and never where the individual receives remuneration or a fee for their services.

However, this visitor category was established to deal with prearranged specific activities where the overseas visitor is permitted to enter the country as a visitor and to receive a fee. This route is restricted to those coming for one month or less and no formal sponsorship from any UK employer or institution is required. Examples of permitted activities for a visitor in this category of stay are:

1. giving a lecture, examining students and participating in or chairing selection panels;
2. overseas designated air pilot examiners assessing UK pilots to ensure that they meet national air regulatory requirements of those countries;
3. providing advocacy in a particular area of law (as a qualified lawyer) in a court or in a tribunal hearing, arbitration or other form of alternative dispute resolution in the United Kingdom;
4. professional artists, entertainers or sportspersons carrying out an activity relating to their main profession (e.g., artists exhibiting and selling their work);
5. authors engaged in book signings;
6. entertainers giving a one-off or short series of performances; and
7. sportspersons providing, for example, guest media commentaries in their chosen field.

A visa will be required for visa nationals, although not for any other individual who would not normally require a visa to secure entry to the United Kingdom. However, non-visa nationals must still be able to satisfy an immigration officer at a UK port of entry that their activities clearly fall within the parameters of the new visitor category.

National Health Service surcharge

A major increase in the cost of recruiting overseas (now including EEA nationals) labour was introduced in October 2020. The immigration health surcharge (or National Health Service (NHS) surcharge as it has become known) was initially set at £200 a year for temporary migrants (with a primary applicant or their dependants or both) and £150 a year for students. This was increased on 8 January 2019 to £400 and £300 per year, respectively, and just over a year later it was increased to £624 and £470 per year, respectively. Dependent children are no longer charged the same amount as a primary applicant but are charged £470 per year. The fees must be paid for the entire period of leave being requested at the time that these applications are being applied for. Duplicate payments for the same period – for example, when an applicant changes their immigration route part-way through their current visa – are refunded.

The NHS surcharge is paid by all overseas nationals who apply to come to the United Kingdom to either work, study or join family for a limited period of more than six months and will also be paid by the same individuals who are already in the United Kingdom and apply to extend their stay. This includes Australians and New Zealanders, who were previously exempt.

The exemptions to the requirement to pay the surcharge are:

1. tourists who enter the United Kingdom on a tourist visa will not pay the surcharge, although they will remain directly chargeable for hospital treatment should they need to utilise the services of the NHS while in the United Kingdom. However, the NHS will charge each such tourist 150 per cent of the cost of the treatment and therefore private travel and health insurance should be taken out;
2. asylum applicants;
3. victims of slavery or human trafficking and their dependants;
4. dependants of a member of the armed forces;
5. those applying for the EU settlement scheme;
6. those eligible for a frontier worker permit and have an S1 certificate;
7. those applying for ILR;
8. those applying for a visa to the Isle of Man or Channel Islands; and
9. health and care workers who are eligible for a health and care worker visa and their dependants.

Although there is certain logic to imposing this surcharge, it is an additional burden imposed on large employers (in particular) that operate in the global marketplace and that recruit hundreds, if not thousands, of overseas migrants. The burden caused by this surcharge is further increased due to the removal of EEA nationals from the UK labour market following the end of free movement. This surcharge can be paid by the employee or the employer. There is no requirement for the employer to pay this on behalf of a sponsored employee.

Additionally, applicants for visas who will stay in the United Kingdom for more than six months must secure tuberculosis certificates if applying from certain countries where tuberculosis is an ongoing health risk.

Immigration skills charge and COS

An additional charge is now payable by employers that employ migrant workers in skilled roles under the skilled worker or ICT sponsorship scheme on or after April 2017. The skills charge is set at £1,000 per employee per year and at a reduced rate of £364 for small or charitable organisations.

Companies that have fewer than 50 employees, companies with a turnover of less than £6.5 million and where their balance sheet is no more than £3.26 million, and companies that are charitable organisations will pay a lower skills charge of £364.

The skills charge was announced alongside a number of changes to the Immigration Rules following the MAC’s report of January 2016 advising the government on how to ‘significantly reduce the level of economic migration from outside the EU’. It is notable that this predated the June 2016 referendum.

The skills charge will not apply to a sponsor of an overseas national who was sponsored in Tier 2 before 6 April 2017. Furthermore, it will be imposed only on main applicants, so it will not affect dependent family members. In practice, the skills charge increases the cost of a five-year skilled worker or ICT sponsorship by £5,000. Essentially, it is designed to reduce demand on the scheme and result in additional opportunities for resident workers.

The skills charge is paid at the time of assigning COS to overseas migrants by the employer. The COS fee is currently £199 for all overseas migrants except for nationals of Austria, Belgium, Croatia, Republic of Cyprus, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Luxembourg, Malta, the Netherlands, North Macedonia, Norway, Poland, Portugal, Slovakia, Spain, Sweden and Turkey. These countries are exempt from the COS fee. The COS and skills charge must be paid by the employer, and the employer cannot request or allow the employee to pay for these fees in any way.

Right to rent

With effect from February 2016, private landlords are required, pursuant to the Immigration Act 2014 and the ‘compliant environment’ policy (formerly ‘hostile environment’), to conduct immigration status checks on their tenants. Financial penalties of up to £3,000 can be imposed on landlords who fail to undertake the immigration checks or who rent property to a person whose immigration status (or lack of one) means that they do not have a right to rent in the United Kingdom.

Immigration status checks must be conducted by either the landlord or lettings agent before entering into a residential tenancy agreement with any adult who is to occupy the premises as their main or only home. In the first six months of operation, the Home Office Right to Rent Landlord Checking Service was used over 11,000 times, and the helpline took over 800 calls to support landlords, agents and tenants in implementing the scheme.

The right to rent provisions were strengthened by the Immigration Act 2016, which introduced mechanisms for landlords to evict illegal migrant tenants more easily and, in some circumstances, without a court order. In practice, landlords will request a Notice of Letting to a Disqualified Person from the Home Office, which, if issued, confirms that the tenant is disqualified from renting in the United Kingdom as a result of their immigration status. On receipt of this, the landlord will be expected to take action to ensure that the illegal migrant leaves the property.

However, on 1 March 2019, a High Court ruling⁴ stated that the right to rent policy was certain to cause discrimination on the grounds of race and nationality. The Court made a declaration of incompatibility with human rights. This is supported by various reports, one being from research undertaken by the Residential Landlords Association in 2018 that confirmed that 42 per cent of landlords were, as a result of the policy, less likely to agree to a tenancy with a person who did not hold a British passport. The government appealed this ruling in January 2020 at the Court of Appeal and, on 21 April 2020, the Court of Appeal ruled that the checks are not unlawful under the Human Rights Act, reversing the decision of the High Court.

Immigration checks on bank accounts

Wider enforcement measures with respect to banks and building societies have made it even more problematic for illegal migrants to live and work in the United Kingdom. Measures introduced by the Immigration Act 2016 provided the Home Office with an escalating range of options, including where a current account holder is confirmed to be unlawfully present in the United Kingdom. This provision was implemented in January 2018 and placed a burden on banks and building societies to check the immigration status of personal bank account holders in the United Kingdom and inform the Home Office where legal right of residence is not found. The Home Office will then conduct its own checks and may apply to the courts for an order instructing the bank or building society to freeze the individual’s accounts. This further enables the Home Office to prosecute individuals for the criminal offence of working illegally and recovering wages as proceeds of crime.

The Home Office states that (at this stage) only details of illegal migrants who are liable for removal or deportation from the United Kingdom or who have absconded from immigration control will be checked (against a list provided by anti-fraud organisation Cifas). However, following the Windrush scandal, immigration checks on bank accounts were suspended in May 2018 and, at the time of writing, remain so.

Right to work checks

Since 2008, employers have been required to complete legal right to work checks on all employees reporting for work on or before their start date to prevent illegal working. This involves a manual check of an employee’s identity document and evidence of entitlement to work in the United Kingdom, such as with a British or EU passport or a visa that permits work. Carrying out a compliant right to work check (with appropriate document retention) provides the employer with a statutory excuse, which can be used as either a partial or a complete defence if the employee has been working illegally. Failure to carry out the required right to work check can result in the employer being subject to significant financial penalties or imprisonment.

From 28 January 2019, employers have been able to conduct legal right to work checks online. The online check is undertaken via the employer’s online profile of the official government website, and the Home Office will keep records of checks undertaken. Completion of a correct online right to work check with appropriate record-keeping provides the employer with a statutory excuse.

The online right to work check must be kept electronically or in hard copy on the employee’s personnel file (as per previous requirements) and must be kept for the duration of the employment, plus an additional two years from that date.

As part of covid-19 measures, as of March 2020, some temporary changes were made to the current guidance that allowed employers to conduct checks online via video calls. Throughout 2022, the Home Office chose to maintain a level of continuity in the process of checking an individual’s legal right to work in the United Kingdom by extending the covid-19 adjustments. Employers continued to have the choice of conducting online checks until October 2022 after employers gave positive feedback on being allowed to use third-party ID providers to digitally check British and Irish passports.

The extension comes as the Home Office rolled out its new IDVT in 2022, which hopes to support long-term, post-pandemic work practices; accelerate recruitment and onboarding processes; and enhance employer mobility and the security and integrity of right to work checks. The scheme has become available to certain employees already, and the aim is for all employees to eventually be able to access fully electronic right to work checks. The online system is aimed at providing employers with a statutory excuse against a civil penalty in the event of illegal working involving the subject of the check, and should therefore prove to be more efficient and effective than manual checks.

It is anticipated that employers will use the government’s extension of covid-19 adjustments to develop commercial relationships with IDVT providers, update their pre-employment checking processes and onboard their chosen provider so that the implementation of IDVT will run smoothly. It remains unclear how the charges payable for using IDVT will affect some smaller employers and whether they will resort to fully compliant manual checks again at the end of the extension period.