Get the latest immigration news, including updates on recent changes that may affect the way you access overseas talent.
Latest updates
On 7 August 2023, the Home Office published a news story opens in a new window announcing planned increases to fines for employers who breach illegal working laws.
For employers, the overall maximum illegal working civil penalty will be increased from £20,000 to £60,000. In addition, the starting point for a first breach will be increased from £15,000 to £45,000. The amounts applied are per illegal worker identified. These changes are likely to be introduced from the start of 2024.
The Home Office also announced that during 2023, they will launch a consultation on options it is considering on more stringent compliance action against licensed businesses who are employing illegal workers.
This is a general guide and is not intended to be advice or to take the place of advice from a solicitor or regulated immigration adviser. Always check GOV.UK for the latest information.
Date published
9 August 2023
A new Statement of Changes to the Immigration Rules was published on 17 July 2023. This statement includes changes to the EUSS, which will take effect from 9th August 2023.
Specifically, this includes:
Closure of the scheme to (i) certain family members of a qualifying British citizen on their return to the UK who has exercised free movement rights in the EEA or Switzerland (known as Surinder Singh cases); and (ii) those applying as the primary carer of a British citizen (known as Zambrano cases).
Changes to the scheme which means meeting the relevant applicable deadline under the scheme for an application (or having 'reasonable grounds' for having missed the relevant deadline) is a validity rather than eligibility requirement. This means that UKVI will consider if there are reasonable grounds for an application being made late before considering whether the application meets the eligibility and suitability requirements.
Preventing a valid application to the scheme being made by a joining family member who has entered the UK illegally.
A change to implement the decision of the Court in the case of Independent Monitoring Authority for the Citizens’ Rights Agreements v the Secretary of State for the Home Department in December 2022. This case found that the right to reside in the UK under the Citizens Rights Agreement of someone who had been granted pre-settled status does not expire just because they have failed to make a second application to the EUSS (to upgrade their status to settled status). The Secretary of State will make arrangements for pre-settled status to be automatically extended in relevant cases. The Government have announced that people with pre-settled status will automatically have their status extended by 2 years before it expires if they have not obtained settled status. The Home Office also intends to take steps to automatically convert as many eligible pre-settled status holders as possible to settled status once they are eligible for it, without them needing to make an application. Further details on these changes can be found in the Home Office announcement here opens in a new window.
This is a general guide and is not intended to be advice or to take the place of advice from a solicitor or regulated immigration adviser. Always check GOV.UK for the latest information.
There are three key changes which took effect from 1500 on 17 July 2023:
The right for international students to bring dependants with them to the UK will be removed unless their course is a PhD, other doctoral qualification or a research based higher degree. This applies to those students whose course start date is from 1 January 2024 onwards.
International students will not be able to switch out of the student route into work routes before their studies have been completed. Students on courses at degree level or above will be able to apply before course completion to switch to sponsored work routes, as long as their employment start date is not before their course completion. Those studying towards PhDs will be able to switch after 24 months’ study.
International students will no longer be able to switch into becoming a dependant in (i) a work route (such as Skilled Worker, Senior or Specialist Worker, Graduate Trainee, Global Talent etc), (ii) in a Temporary Worker route or (iii) in the UK Ancestry route before their studies have been completed (if studying at degree level or above). Those studying towards PhDs will be able to switch after 24 months’ study.
This is a general guide and is not intended to be advice or to take the place of advice from a solicitor or regulated immigration adviser. Always check GOV.UK for the latest information.
Date published
20 July 2023
A new Statement of Changes to the Immigration Rules opens in a new window was published on 17 July 2023. This statement includes a number of changes, including some additions to the Shortage Occupation List which were initially announced in the UK Governments Spring Budget in March 2023. Details of the announcement in the Spring Budget can be found here opens in a new window.
The Shortage Occupation List opens in a new window offers lower salary requirements and lower visa application fees for jobs identified as being in shortage in the UK. Following recommendations by the Migration Advisory Committee (MAC), certain construction and fishing sector jobs are being added to the list from 7 August 2023, and applications made on or after this date will be considered in line with these changes to the Shortage Occupation List. This includes the following:
Construction
5312 Bricklayers and masons
5313 Roofers, roof tilers and slaters
5315 Carpenters and joiners
5319 Construction and building trades not elsewhere classified
5321 Plasterers (dryliners are also being reclassified to the same occupation code as plasterers, making the job eligible to be sponsored for the Skilled Worker route and included on the Shortage Occupation List)
Fishing
5119 Agriculture and fishing trades not elsewhere classified
9119 Fishing and other elementary agriculture occupations not elsewhere classified
Further changes to the Shortage Occupation List may be announced in due course following the closure of the MAC's separate call for evidence in May 2023.
This is a general guide and is not intended to be advice or to take the place of advice from a solicitor or regulated immigration adviser. Always check GOV.UK for the latest information
Date published
20 July 2023
On 13 July 2023, the UK Government announced details of proposals to increase immigration costs.
The key changes which were announced include:
The Immigration Health Surcharge for adults will increase from £624 to £1,035 per year of the visa and for children under the age of 18, students and youth mobility visa holders, will increase from £470 to £776 per year of the visa
Work and visit visa application fees are likely to increase by 15%
Certificates of Sponsorship, leave to remain and study fees are likely to increase by 20%
The exact timing of the above cost increases has not been announced.
Details on the current visa and immigration costs can be found here opens in a new window. Please check the most up to date guidance at the time of applying for a visa for details of the relevant fees at that time.
This is a general guide and is not intended to be advice or to take the place of advice from a solicitor or regulated immigration adviser. Always check GOV.UK for the latest information.
Date published
20 July 2023
On 23 November 2023, the Home Office announced changes to the Student visa route that will come into effect for students starting in January 2024.
Specifically, it has announced its intention to:
Restrict the ability of international students to bring family members with them to the UK on all but postgraduate research routes
Stop international students from switching from the Student visa route to Work routes until their studies have been completed
Review the funds students must have to demonstrate they can look after themselves and their dependants in the UK
The UK Government has stated it will work with the higher education sector to explore alternative options in advance of the January 2024 implementation date.
This is a general guide and is not intended to be advice or to take the place of advice from a solicitor or regulated immigration adviser. Always check GOV.UK for the latest information.
UKVI state that Global Entrepreneurs Programme (GEP) is a government programme run by the Department for Business and Trade for internationally mobile, tech-based entrepreneurs. GEP only provide visa endorsements for founders that have already been invited to participate on their programme.
It’s a general guide and is not intended to be advice or to substitute advice from a solicitor or regulated immigration adviser. Always check GOV.UK opens in a new window for the latest information.
This guidance outlines all the compliance obligations on those employers who are approved by the Home Office as licenced sponsors under various worker routes, including reporting and record keeping duties.
What has changed?
The updated guidance includes a number of changes, however the most notable are as follows:
Further information on reporting a sponsored workers 'normal work location' has been included. Specifically, in addition to reporting a change in the site, branch or office where a sponsored worker is based, the guidance now states that if a sponsored worker is, or will be, working remotely from home on a permanent or full-time basis (with little or no requirement to physically attend a workplace) or if the worker has moved, or will be moving, to a hybrid working pattern, then this should be reported on the sponsor management system ('SMS'). The guidance also clarifies that day-to-day changes in work location do not need to be reported (for example if a worker occasionally works at a different branch, site or at home), it is only changes to a sponsored workers regular working pattern that need to be reported.
Additional duties have also been included for those sponsoring an offshore worker. An "offshore worker" is defined as someone who arrives directly in UK waters for the purpose of work without first entering through UK landmass. From 12th April, those sponsoring an offshore worker must notify UKVI of the dates that the worker (i) first arrives in UK waters at the beginning of the job for which they are being sponsored; and (ii) leaves UK waters at the end of the job for which they are being sponsored. The sponsor must make the relevant notification no earlier than the date the worker arrives or leaves (whichever is relevant) UK waters and no later than 10 working days after the date that the worker arrives or leaves (whichever is relevant) UK waters.
This reporting cannot be done on the SMS at the moment, instead sponsors should email the Offshore worker notification inbox (offshoreworkernotificationsinbox@homeoffice.gov.uk) with the following information:
The sponsor licence reference number
The CoS reference number of the offshore worker
The name, date of birth and nationality of the offshore worker
The name of the ship or vessel on which the offshore worker will be based
The date they arrived in, or left, UK waters (as appropriate)
Temporary leave from UK waters by a sponsored worker during the period of valid permission (for example for a holiday) does not need to be reported. Notification of an offshore worker's arrival is not required if the worker arrives through immigration control on the UK landmass before they arrive in UK waters (however where that is the case, sponsors should ensure they record their date of entry, in line with the record-keeping duties in Appendix D opens in a new window).
Information on the types of organisational changes that are moving to a more automated system have been confirmed in the guidance. Details of these can be found in our previous update (see ‘Changes to sponsor management procedures’ update from 23rd March 2023)
Confirmation that those who are a provisional sponsor under the Expansion Worker route opens in a new window cannot have their licences downgraded. If such a sponsor fails to meet their sponsor duties or the requirements of the sponsor guidance, an action plan will not be issued. In those circumstances, UKVI will consider revoking the licence.
Other minor clarifications and amendments were also made to the guidance throughout.
Full information on the sponsor licence duties and compliance obligations that apply to licenced sponsors can be found in the GOV.UK guidance opens in a new window and in Appendix D opens in a new window. Sponsors should ensure that they always use the most up to date version of the guidance.
Date published
13 April 2023
The UK Government have recently confirmed the offshore wind workers concession (Concession) will end on 30 April with no extension. It was also announced that from 12 April 2023 businesses (and certain individuals) will need to notify the Home Office of arrival and leaving dates for offshore workers.
This means that workers will need to leave the UK and its territorial waters by the 30th April 2023. It is not possible for workers to enter the UK before the 30th April and remain in the UK to work after that date. If there is an ongoing need to have such workers work in the UK, they will need to apply for entry clearance before they can begin work.
Businesses (and certain individuals) will be required to notify UKVI of certain information in the lead up to the end of the Concession. These notifications are summarised below:
From 12 April 2023, offshore workers (or their sponsor if they have one), defined under the relevant legislation will need to notify the Home Office when they arrive in the UK (that is, arrive in UK waters for the purpose of undertaking work in those waters) and when they leave.
The sponsor of an offshore worker will be responsible for fulfilling the notification requirement. The notification must be made no earlier than the day of arrival/leaving and no later than 10 working days after arrival/leaving. The email address to be used for such notifications is: offshoreworkernotificationsinbox@homeoffice.gov.uk.
Offshore workers without a sponsor are also required to report when they have arrived and left the UK, as set out above, using the same email address.
There will be guidance published shortly with further details about the changes.
Date published
3 April 2023
UKVI have recently announced some changes to the way they deal with certain requests on the sponsor management system (SMS).
Replacing authorising officers, key contacts and adding Level 1 users
From 23 March 2023, UKVI has indicated that requests submitted from the SMS to replace an authorising officer, replace a key contact or add a new Level 1 user will be fulfilled immediately, rather than taking up to 18 weeks to process, as under the previous rules. This is subject to the following criteria being met:
The licence must be active and A-rated.
The postcode of the address stated for the new authorising officer, key contact or Level 1 user must match either the postcode of the main organisation or head office address – or, for key contacts and Level 1 users, the postcode of a legal representative organisation that the sponsor has declared is acting on the sponsor's behalf.
Auto-renewal of annual allocations for Certificates of Sponsorship (CoS)
A-rated sponsors in one of the eligible routes listed below, whose current allocation status is 'active', will have their annual allocation of Certificates of Sponsorship renewed automatically if it's due to expire within three months of the date of the communication from UKVI (which was 23 March 2023).
If the annual allocation expires more than three months after the date of UKVI's communication, or if the allocation status has already expired, sponsors will still need to apply to renew it, but their next annual allocation will be automated.
Once the allocation is automated, a sponsor will be granted the number of CoS they assigned in their previous annual allocation. For example, if a sponsor assigned 10 of 15 available CoS in their 2022/23 annual allocation, their new allocation will be automatically set at 10 for the 2023/24 allocation year. This can be increased by submitting a ‘Request CoS allocation increase’ request.
The routes eligible for automatic renewal are:
Skilled Worker (undefined only)
GBM- Senior or Specialist Worker
GBM- Graduate Trainee
GBM- Service Supplier
GBM- Secondment Worker
Minister of Religion
International Sportsperson
Charity Worker
Creative Worker
Government Authorised Exchange
International Agreement
Religious Worker
Scale Up
Further information on how to submit these requests and sponsors' obligations to keep their information up to date on the SMS can be found in the following documents:
The Migration Advisory Committee (MAC) have published an interim report on the shortage occupation list on 15 March 2023. This focuses on the construction and hospitality sector.
The shortage occupation list is a list of jobs which are deeded to be in short supply, and which therefore benefit from lower salary thresholds for sponsorship under the Skilled Worker visa route and for reduced visa application fees. The MAC is undertaking a broader review of the shortage occupation list but was asked by the UK Government to expedite the review in relation to the construction and hospitality sectors and to publish its findings on these sectors ahead of its general recommendations and to coincide with the budget.
The MAC have recommended that no jobs should be added to the SOL for the hospitality sector for now.
For the construction sector they have recommended the addition of a number of jobs to the SOL as follows:
SOL 5312 Bricklayers and masons
5313 Roofers, roof tilers and slaters
5315 Carpenters and joiners
The UK Government is likely to consider the MAC's recommendations and further details of any changes will be published in due course.
On 28 February 2023, the UK Government published a revised version of the Employer's guide to right to work checks. Employers should ensure that they are using the most up-to-date version of the guidance when carrying out right to work checks for employees.
Some key changes include (amongst others):
Updates to when the Employer Checking Service and online checks should be used to complete right to work checks
Updates to reflect the changes in the immigration rules for those on Student visas who are switching to Graduate or Skilled Worker visas
Further details on the phasing out of biometric residence permits, with many BRPs being issued with expiry dates of 31 December 2024 — since April 2022, these documents cannot be used to prove an individual's right to work in the UK; an online check will confirm an individual's dates of permission
Clarification of what documents are acceptable for the purposes of right to work checks
Further guidance relevant to Digital Identity Service Providers and employers that use them on the requirements to obtain a statutory excuse against a civil penalty.
On 10 February 2023, the Migration Advisory Committee (MAC) published its revised methodology for determining whether an occupation is experiencing a shortage and whether it is sensible to fill that shortage with migrant workers. This was published in connection with the MAC's latest review of the Shortage Occupation List.
The MAC is now looking for input from stakeholders in connection with its latest Shortage Occupation List review. A call for evidence was announced on 27 February 2023.
Information on this call to evidence is available in the MAC's published policy paper.
This paper sets out the background to the review of the Shortage Occupation List, and provides detail on what evidence the MAC believes will be useful from stakeholders when it is conducting its review.
On 21 February 2023, the UK Government announced that the ballot for the India Young Professionals Scheme visa will open for the first time on 28 February 2023 at 2:30pm IST (India Standard Time). The ballot will be open for 48 hours then close on 2 March 2023 at 2:30pm IST.
The ballot is free to enter and there are 2400 visas available in this ballot round. Ballot entrants will be selected at random and successful entrants will be contacted within two weeks of the ballot closing.
Those successful in the ballot: visa applications
Successful entrants will have 30 days from the date of the email confirming that they were successful in the ballot to apply for the visa online, pay the visa application fee (£259) and pay the immigration health surcharge.
On 16 February 2023, the UK Government confirmed that they will not be appealing the High Court's recent decision in relation to the EU Settlement Scheme.
The decision held that the requirement — for those with pre-settled status to make a second application to the EU Settlement Scheme to obtain settled status or lose their rights under the scheme — was unlawful. This is because it appears not to recognise certain rights of residence of those granted pre-settled status under the terms of the Withdrawal Agreement.
On 31 January 2023, Tech National announced that it will cease all operations on 31 March 2023.
Tech Nation is the endorsing body recognised by the Home Office for applications made for endorsement in the digital technology field under the Global Talent visa route. At present, the Home Office has not identified a new endorsing body for the digital technology field after the 31 March 2023.
Further details are expected in relation to who may take over as the endorsing body for digital technology applications under the Global Talent visa route and what Tech Nation's planned wind down will mean for existing or future endorsement applications.
The UK Government has announced that priority services for outstanding spouse, partner and family route entry visas have been reintroduced.
Initially, the priority service will only be available to those who have an existing outstanding application with the Home Office for processing which they made outside the UK.
UKVI will write to eligible individuals with outstanding undecided applications by email to give them the chance to purchase the priority service for an additional £573. Applicants are being contacted in date order with the applications that have been outstanding the longest being contacted first.
The reinstated priority service aims to return a decision within 15 working days. The standard processing time for spouse, partner or family applications that do not use the priority service is currently up to 24 weeks.
It is understood that the priority service will be reintroduced for those making new applications later in 2023.
On 15 September 2023, the Home Office announced that various immigration and nationality fees will be increasing with effect from 4 October 2023. In line with previous announcements there is approximately a 15% increase in the cost of many work visas, and an increase of around 20% in the cost of some priority visas, study visas and certificates of sponsorship.
The UK Government have recently announced that it intends to offer a 'premium support package' to help employers within the seafood sector to use the Skilled Worker route to sponsor qualifying workers to work for them within UK territorial waters.
This is in light of recent changes to the Immigration Rules and the Nationality and Borders Act 2022 opens in a new window, which clarify that non-British, non-Irish seafarers working within a 12-mile radius of the UK shore (also known as UK territorial waters) are subject to immigration control and therefore require permission to work (such as a Skilled Worker or other visa).
Further detail on these clarifications can be found in our previous blog below.
The Home Office has set out several different intentions in relation to the support package:
It will host initial familiarisation sessions for key leads within the sector to meet with experts from the Home Office to talk through the system. This will allow the team to explain the application and processes and what support they can provide, as well as allowing sector leads to raise initial queries direct with the team.
It will work with commercial partners to ensure there are sufficient English language testing capacities in locations where workers might be recruited, should this be required.
It will work with commercial partners to ensure workers can access visa application centres (VAC) to give biometrics where necessary.
It will expedite the decision-making process once a sponsor licence application is received, at no extra charge.
It will expedite the visa decision-making process once visa applications are received from workers at no extra charge. The service standard is 15 working days, but the Home Office has stated that it will aim to make decisions in 8 to 10 days from receipt of the application and supporting documents.
It will appoint a dedicated point of contact at UK Visas and Immigration.
How do employers within the sector take advantage of this support?
Details of how to access this support has not been provided yet, but the Home Office has stated that it will communicate further updates soon.
The Home Office has initially asked for additional information from employers within the sector. This means it can ensure that it can fulfil its commitments and make quick progress on sponsor and visa applications. The types of information the Home Office is looking for include:
Estimates on the number of companies requiring a licence
The volume of workers
The volume of English language tests required
Locations from which the workers will apply
The Home Office has also indicated that if businesses would like a session on how the immigration system works, they will set this up. The team can then also discuss how to coordinate speeding up applications without the requirement for any priority processing fee.
Further information
If you require further information or have any questions on the above announcement, you can contact TalentScotland.
Status of blog
This information is accurate as of 26 April 2023. It’s a general guide and is not intended to be advice or to substitute advice from a solicitor or regulated immigration adviser. Always check GOV.UK opens in a new window.
Recent changes to the Immigration Rules opens in a new window from 12 April 2023 clarify that seafarers working within a 12-mile radius of the UK shore (also known as UK territorial waters) are subject to immigration control.
These clarifications make it clear that most non-British and non-Irish citizens working on vessels within UK territorial waters must have a visa that permits them to work before beginning work. There are a number of ways that organisations in the fishing sector can ensure that their migrant workers have permission to do the work in question as there are several visas which may be suitable.
Please note that the skilled worker route also requires the individuals to demonstrate certain English language skills.
Visitor Rules for Fishing Sector
In some limited circumstances, individuals may also be able to temporarily rely on the newly introduced visitor permitted activities for a seafarer (which can be found on GOV.UK in section PA 9.4 opens in a new window). Those seeking to rely on those rules may want to obtain legal advice about whether the activities are permitted.
TalentScotland Support
TalentScotland can support Scottish employers within the sector with the Skilled Worker Route.
We will be running a live webinar on 10 May 11am to 12pm which will be specifically aimed at employers in the fishing industry sector on how to use the skilled worker route and outlining the recent changes. Get further information and sign up opens in a new window
We run regular tutorials alongside our immigration specialists, Brodies LLP, on the practical process of applying for a sponsor licence and applying for and assigning certificates of sponsorship. Find details on our upcoming tutorials. If there is not a date that suits you, you can contact TalentScotland for more information
For any organisations currently wanting support to obtain a sponsor licence, our website contains lots of information on this which can be found here. Alternatively, if you have a specific question or support need, you can contact TalentScotland
We also have recorded webinars on the skilled worker route available on demand which can be found on our tutorials page. Please note that these recordings pre-date UKVI's amendments to minimum salary requirements which took effect on 12 April 2023, details on this can be found on GOV.UK opens in a new window.
Status of blog
This information is accurate as of 13 April 2023. It’s a general guide and is not intended to be advice or to substitute advice from a solicitor or regulated immigration adviser. Always check GOV.UK opens in a new window for the latest information.
New Changes to Immigration Rules
On 9 March 2023, the Home Office published a Statement of Changes to the Immigration Rules.
There are a significant number of amendments to the Immigration rules being made, however the key changes are highlighted below.
Start-up, Innovator and Innovator Founder Routes
The Start-up route will no longer be open to new applicants from 13 April 2023, except for where they are supported by an endorsement letter that was issued before 13 April. The Innovator route will also close in its current form from 13 April 2023.
A new Innovator Founder route will be introduced on 13 April 2023 to replace these two categories. This route is available for overseas nationals seeking entry to or remain in the UK for the purpose of establishing a business in the UK based on an innovative, viable, and scalable business idea they have generated, to which they have significantly contributed. Under this new route, there is no requirement to show the initial capital of £50,000 to invest in the business (although the endorsing bodies may still require applicants to demonstrate that the necessary funds are available to execute the business plan) and individuals will also be permitted to carry out additional work in the UK for third parties (so long as it is work at level RQF level 3 or above).
To qualify for the Innovator Founder route, individuals will need to show:
An endorsement letter from one of the specific endorsing bodies approved by UKVI for this route confirming that:
the applicant satisfies the business plan requirement and the requirement to have a business venture that is innovative, viable and scalable;
the applicant is considered a fit and proper person by the endorsing body; and
that the endorsing body has no concerns over the legitimacy of sources of funds or modes of transfer of funds invested by the applicant into their endorsed business.
They will have a key role in the day-to-day role in carrying out the business plan, and they are a sole founder or an instrumental member of the founding team.
English language ability on the Common European Framework of Reference for Languages in all 4 components (reading, writing, speaking and listening) of at least level B2.
If they are applying for entry clearance, that they have personal funds of at least £1,270 held for a 28-day period prior to the date of application.
Innovator Founder visas will be valid for 3 years and, subject to additional criteria, Innovator Founders may be able to apply for settlement at the end of the 3 year period. However, this is subject to various business milestones being met.
Increases to minimum salary requirements
From 12 April 2023, general salary thresholds for the Skilled Worker route are set to increase from £25,600 per annum to £26,200 per annum. The minimum hourly rate will be increased from £10.10 per hour to £10.75 per hour (subject always to minimum wage requirements being met).
For occupations on the shortage occupation list, the general threshold will be increased from £20,480 per annum to £20,960 per annum.
Under the Senior and Specialist Worker route, the minimum salary will increase from £42,400 to £45,800 from 12 April 2023.
Going rates
Going rates for job codes in the Skilled Worker route will be based on 37.5 hours per week rather than 39 hours per week from 12 April 2023. The going rates must be pro-rated for other working patterns.
The new salary thresholds will apply to applications where the certificate of sponsorship was assigned on or after 12 April.
Electronic Travel Authorisation scheme
The Electronic Travel Authorisation (ETA) scheme will also begin its roll out this year. An ETA is a digital permission to travel, similar to the US ESTA scheme. It will be required by all non-visa nationals coming to the UK for up to six months as a visitor, including transit visitors.
An ETA will not be required by anyone with a UK visa or permission to live, work or study in the UK. ETAs will last for two years and can be used to make multiple visits to the UK. However, they do not guarantee entry to the UK and anyone refused an ETA will need to apply for a visa.
Qatari visitors will be the first to be able to apply for an ETA in October 2023, before further roll out in 2024.
From 12 April 2023, nationals and permanent residents from Australia applying for the Global Business Mobility – Expansion Worker opens in a new window route will not need to show that they have worked for their overseas employer for the 12 months prior their application.
From 29 June 2023, Nationals from New Zealand will be able to apply for the Youth Mobility Scheme up to the age of 35, rather than 30, and the length of stay will be increased from two to three years.
Most of the announced changes are due to take effect from April 2023.
Full policy guidance is expected in due course closer in advance of the changes taking place.
Status of blog
This information is accurate as of 16 March 2023. It’s a general guide and is not intended to be advice or to substitute advice from a solicitor or regulated immigration adviser. Always check www.gov.uk opens in a new window for the latest information.
In 2022, the Independent Monitoring Authority (IMA) - an independent, non-departmental public body set up to protect EU citizens’ rights in the UK - sought a judicial review to challenge the lawfulness of certain aspects of the EU Settlement Scheme.
In December 2022 the High Court declared that the Home Office's interpretation of the Withdrawal Agreement was wrong in law, and that the EU Settlement Scheme (EUSS) is unlawful in that it appears not to recognise certain rights of residence of those granted pre-settled status.
What issue was the court deciding?
The EUSS was established to implement certain of the UK's commitments under the Brexit Withdrawal Agreement. This was the agreement that the UK entered into with the EU as part of the UK's withdrawal from the EU.
Under the EUSS, those EEA nationals (and certain family members) who applied were granted settled status if they had completed five years' residence in the UK and met the requirements of the scheme. In other cases, they were granted pre-settled status (which was limited leave to remain for a period of five years) if they had certain residence rights to remain in the UK but did not have a right to settled status.
The EUSS requires those with pre-settled status to apply again to the EUSS before the expiry of their pre-settled status if they wanted to continue having leave to remain in the UK, with either settled status or another grant of pre-settled status. Individuals who were granted pre-settled status under the EUSS would have no lawful status in the UK after the expiry of that five-year period of leave unless (i) that limited leave was extended by operation of law or (ii) they were granted further leave to remain.
The IMA claimed that this outcome was unlawful and that it was not permitted by the Withdrawal Agreement. It may result in the person not having the right to live in the UK or the right to work if they failed to reapply in time.
The case noted that it was estimated that around 2.2 million individuals had pre-settled status as of 30 September 2021. Therefore, a significant number of individuals may be seriously impacted if a certain proportion of them failed to re-apply to the EUSS in time. August 2023 is the earliest date on which grants of pre-settled status would start to expire.
The IMA therefore sought a judicial review arguing that the requirement for those with pre-settled status to reapply to the EUSS before the expiry date of their leave was unlawful.
What did the court decide?
On 21 December 2022, the High Court declared that the Secretary of State for the Home Department's interpretation of the Withdrawal Agreement was wrong in law and that the EUSS is unlawful in that it appears not to recognise certain rights of residence of those granted pre-settled status.
The Home Office intends to appeal this decision, so no changes to the EU Settlement Scheme are expected imminently. Those with pre-settled status should continue to make applications to upgrade their status to settled status or to reapply for pre-settled status where they are eligible to do so to ensure that their rights to remain living and working in the UK are not affected.
On 13 December 2022, the Migration Advisory Committee (MAC) published its Annual Report for 2022. The report looks at the current UK labour market and how the new immigration system has been working for businesses. It also considers how the different regions in the UK have been using the immigration system, as well as the skills shortage and unusually high levels of economic inactivity.
UK labour market
The report includes some reflections on the current UK employment market that put recent immigration trends in context:
Stalling overall employment levels and comparatively high economic inactivity
The total number of people working in the UK has stalled, remaining below pre-pandemic levels in 2022. There has also been an increase in the number of people who are economically inactive.
The UK stands out among the other G7 countries in that economic inactivity remains above pre-pandemic levels. Sustained high inactivity is predominantly being driven by the 50 to 64 year age groups.
Increasing vacancies and shortage of workers
The report describes the demand for labour as unprecedented. Vacancies are now at record highs in the UK, with an estimated 1.3 million vacancies between March and May 2022.
Immigration
Some of the key findings in the report regarding immigration are set out below:
Increased migration to the UK
In the 12 months to June 2022, net migration reached a record 504,000. This was an increase of 331,000 compared to the previous 12 months.
The MAC noted that a significant part of the rise was due to recently introduced visa routes, such as those for Ukraine and Hong Kong citizens. The report also flags an increase in international students coming to the UK and the use of the Skilled Worker route for NHS recruitment. The MAC expects the numbers will not remain this high and will taper off.
Work and temporary work visas granted
In the year to June 2022, 119,000 Work visas were granted, including 52,000 Skilled Worker visas. A further 103,000 dependent visas were granted in a Work route, which means these applicants have relatively unrestricted work rights.
Of the 119,000 Work visas granted:
47,000 were Health and Care Worker visas
18,000 were Global Business Mobility Senior visas or Specialist Worker/Intra Company Transfer visas
There were also 70,000 Temporary Worker visas granted in the year to June 2022. 13,000 of those visas were under the Youth Mobility Scheme.
There were around 500,000 sponsored study visas granted in the year ending June 2022.
The continuing effects of the end of freedom of movement
The end of freedom of movement is likely to continue to affect certain sectors more than others, particularly recruitment in less skilled sectors. The pool of new EU workers coming to the UK will continue to decrease now that freedom of movement has ended and the deadlines to apply to the EU Settlement Scheme have passed for most applicants.
New EU workers looking to come to the UK to work for the first time now often need to rely on the Skilled Worker route. According to the report, this will continue to "make filling vacancies more difficult – especially for sectors dependent on EEA workers at skill levels below RQF 3, who are now ineligible for sponsorship".
These sectors are manufacturing, logistics, administration (including cleaners, gardeners and security guards), hospitality and agriculture - all of which have relied on labour from the EU. In 2019, almost half of EEA-born workers were in an RQF 1 or 2 occupation. These occupations are now generally ineligible for a Skilled Worker visa.
However, the MAC has warned against opening new UK visa routes to focus on low-skill or low-wage visa occupations if the effect would be to "undo the end of freedom of movement on a sectoral basis".
EEA nationals account for around 7% of the total number of Skilled Worker applications. This is relatively low given that EU migrants made up between 40 and 60% of net migration over the last decade.
Skilled Worker route
Health and social care are the sectors that use the Skilled Worker route most. These account for 45% of applications, with around 18% of all applications being made by nurses.
Since the Skilled Worker route opened, the majority of applications were for occupations requiring RQF 6 or higher, but the MAC report notes a rapid increase in applications for roles below RQF level 6 (where eligible for sponsorship).
Regional differences in immigration
In Scotland, around 5.4% of the population were EU migrants and 5% were non-EU migrants in 2022. This is lower compared to the UK as a whole, where the figures were 5.4% and 10% respectively. In 2021, around 9% of Scotland's population were non UK-born nationals, compared to 15.9% in England and 39.5% in London.
There are also geographical differences in how the immigration system is used across the UK. London uses the Skilled Worker route more than other parts of the UK. Scotland uses it less than expected, considering characteristics such as firm size, occupation and sector composition. Scotland accounts for only 4% of Skilled Worker applications, as compared to London, which accounts for 34% of applications.
Scotland's rural visa pilot proposal
A rural visa pilot proposal has been suggested by the Scottish Government to address rural depopulation. The proposed visa would offer lower requirements for those who relocate to designated rural areas. The MAC notes that the visa would be more restrictive on migrants, and that it opposes regional salary thresholds and instead suggests lower skill level requirements or lower fees for employers and migrants to incentivise them.
Other topics and conclusions
The report also explores the potential exploitation of migrant workers in the UK labour market, including exploitative practices, the extent to which migrant workers are more likely to be a victim of these practices, and what role the current immigration system may have in creating opportunities for them to occur.
This has led the MAC to recommend that the government does not introduce new immigration routes for low skilled or lower wage jobs at the moment without a "strong economic rationale". The MAC also advises against adopting a regionalised immigration system, including regional salary thresholds for visa routes.
One final point to note is that the MAC was commissioned in August 2022 to review the shortage occupation list. However, this process has been put on hold by the Home Office, with no further update on when the review will begin again.
Some grants of pre-settled status will expire from mid-2023 onwards
The original deadline for EEA and Swiss staff (and their family members) to apply to the EU Settlement Scheme was 30 June 2021 — the end of the grace period following the UK's exit from the EU.
Many employers communicated this deadline with staff to ensure they did not miss the application cut-off since it could have had serious consequences for their immigration status if they didn’t apply in time.
A second application through the EU Settlement Scheme is required before the expiry date
Employees who received pre-settled status (rather than settled status), would have received leave to remain in the UK for a time-limited period of five years. Their EU settlement scheme status will therefore expire five years after it was granted. Each employee will be aware of their own expiry date — a critical date to remember.
Employees who were granted pre-settled status must apply a second time through the EU Settlement Scheme to obtain settled status (which is a type of indefinite leave to remain). In limited cases some employees who do not qualify for settled status may be granted a further period of pre-settled status.
Applications should be made before the expiry date of pre-settled status. Missing the deadline may have serious consequences for their immigration status. Those applying late may have to demonstrate a good reason for missing the deadline for their applications to be considered.
What is the relevance of mid-2023 onwards?
The first applications through the EU Settlement Scheme were granted in mid-2018. Therefore, the first of the expiry dates for those who were granted pre-settled status will expire from mid-2023 onwards. For those employees who applied later, their expiry dates may fall on a later date (for example in 2024 or 2025).
How many people must apply a second time?
There were around 2.4 million people in the UK with pre-settled status in September 2021. They all must apply for a second time if they want to remain in the UK after their first status expires. This means the application process will impact a significant number of employees.
Those with pre-settled status can apply as soon as they have lived in the UK for five years, but they’re encouraged apply as early as possible because settled status is a more secure with additional rights.
Employees don’t need to wait until the expiry date of their pre-settled status if they have five years of continuous lawful residence at an earlier date.
Encourage your employees to apply before their status expiry date.
The specific date an individual will be eligible to apply to upgrade their status (re-apply) will vary depending on the circumstances – for example, some individuals may be able to apply as early as six months before they reach five years of continuous lawful residence (depending on an individual's specific absences from the UK).
Some may be eligible closer to the date they reach five years of continuous lawful residence. Do not provide immigration advice to your staff (as this is regulated and can only be provided by a solicitor or OISC regulated adviser).
You can, however, signpost your staff to official Home Office online resources such as:
Will I know if my employee has not applied in time?
If you carried out a right to work check on or before 30 June 2021, you may not know if the employee has re-applied to the EU Settlement Scheme in time.
That's because employers were able to accept an EU passport as evidence of right to work before that date and did not need to do a follow-up check. In some cases, an employer may become aware that an employee has not applied — if an employee tells you or a manager, for example. In that case, the employer should follow the following process set out in Home Office guidance.
In some cases where the employee started work on or after 1 July 2021, the employer will have had to carry out a repeat right to work check on or before the expiry date of the employee's status under the EU Settlement Scheme. In that case, the employer will be aware of whether or not the employee has applied in time.
Employers can also use this for advice on dealing with a late application.
What if my employee has been absent from the UK for significant periods during their five year period of pre-settled status?
The employee should take advice well in advance of their expiry date. Information on which absences are permitted from the UK are available on GOV.UK opens in a new window. In some cases, absences due to Covid-related reasons or other important reasons (or short term absences) may not be problematic.
Employers who might want to sponsor employees who cannot meet the requirements of the scheme can contact TalentScotland for details.
Status of blog
This blog is accurate as of 7 December 2022. It’s a general guide and is not intended to be advice or to substitute advice from a solicitor or regulated immigration adviser.
This scheme enables Ukrainian nationals who held permission to enter or stay in the UK on 18 March 2022 (or who held permission which expired on or after 11 January 2022) to continue to stay in the UK.
The new announcement extends the scheme to allow those who obtained permission to stay in the UK between the 18 March and 16 May 2023 to apply to the Ukraine Extension Scheme and obtain 36 months' permission to stay in the UK.
Ukrainian nationals who travelled to the UK without applying for a visa in advance were granted six months leave outside of the rules at the border on entry to the UK. If such individuals wish to remain in the UK, they can make an application under the Ukraine Extension Scheme but must do so no later than the 16 November 2023.
The extension of this route should provide Ukrainian nationals who are eligible with greater certainty of their immigration status and ability to remain in the UK.
The information in this update is accurate as of the 24 October 2022 and is not a substitute for legal advice.
The new Global Business Mobility: UK Expansion Worker route opened on 11 April 2022 and is now live. This largely replaced the Representative of an Overseas Business visa route (sometimes known as the 'sole representative' visa route).
Find out more about how this visa could help you send representatives to Scotland to help you get your operations started here.
As we head into the Spring of 2022, many employers will be considering opportunities to recruit from this year's pool of graduates – especially as there are skills shortages in specific sectors. Recent international graduates, whether they are in the UK already or overseas, provide a great source of potential talent who are often highly skilled.
Having interns and individuals undertaking work placements is often regarded as a good way to identify talent for graduate schemes and future recruitment, as well as being beneficial in providing individuals with a taste of particular work environments and industries.
Following Brexit, EU workers looking for internships and work placements will now need a visa to do so.
In January 2021, the UK Government introduced the new British National (Overseas) visa route (BNO). This visa route was brought in to allow those from Hong Kong who are British Nationals (Overseas) and their eligible family members to come to the UK to live, work and study in the UK for either 2 years and 6 months, or 5 years.
The UK Government recently announced further details of 3 new visa routes which will come into effect in the coming months. These routes provide Scottish companies and inward investors with more options than ever to have overseas and international talent work for them in Scotland.
TalentScotland can offer general guidance around visas and immigration. If you’ve got any questions about visas or the immigration process, get in touch with our team.
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