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24 March 2021
The Home Office is launching a new graduate route from 1 July 2021 and is making amendments to the skilled worker route from 6 April 2021, including changes to:
These changes are set out in a statement of changes to the Immigration Rules HC 1248, which was published on 4 March 2021. This article discusses the implications of the main changes and flags the changes that will most likely be of interest to employers.
From 1 July 2021 international students who have successfully completed an eligible qualification as a student (including Tier 4 student) after a period of physically studying in the United Kingdom will be able to apply in-country for further permission to stay under a new graduate route. Successful applicants will be granted immigration permission for:
Notably, the list of eligible qualifications for the graduate route is broader than those recognised for eligibility under the new entrant requirements for the skilled worker route, and includes:
The implication of this discrepancy is that unless a student is eligible to apply under the skilled worker route as a new entrant on a basis other than their completed UK studies, they may need to switch to the graduate route and then to the skilled worker route in order to start the clock running towards settlement based on the lower salary threshold for new entrants.
Graduate route migrants will be allowed to undertake any work at any skill level and to study in the United Kingdom provided that this is not on a course that would normally require sponsorship as a student. They will also be able to apply under the skilled worker route using the new entrant tradeable points criteria if they apply within two years of holding immigration permission under the graduate route, noting that time spent in the graduate route will count towards the four-year maximum time that a person can hold immigration permission as a new entrant.
Time spent in the graduate route will not be counted towards settlement other than based on 10 years' continuous lawful residence in the United Kingdom.
Graduate route migrants will be allowed to be accompanied by dependants, but only if the dependants were in the United Kingdom as the graduate's student dependant or born in the United Kingdom while the graduate had immigration permission as a student. There is no direct provision for child dependants born while the graduate has immigration permission under the graduate route, which appears to be a drafting error. Unless such a provision is made in the future, they will need to apply under a general provision for children born in the United Kingdom to parents with limited immigration permission.
With regard to the skilled worker route, amendments have been made to:
Amendments to salary requirements – new £10.10 minimum hourly rate
A minimum hourly rate of £10.10 is being introduced for the route. This equates to the hourly rate that a person being paid an annual salary of £20,480 (the minimum general salary floor for the skilled worker route) would receive for a 39-hour week.
Employers which have assigned a certificate of sponsorship before 6 April 2021 that does not meet the new requirement will need to consider whether the related immigration application can be submitted on or before 5 April 2021. If it cannot, they will need to consider whether the salary or hours worked per week can be revised and, if appropriate, make the change using a sponsor note. Applicants will also need to be advised of any changes.
Individuals who already have immigration permission based on a salary that does not comply with the new minimum hourly rate will be able to extend their immigration permission as a skilled worker at their existing hourly rate due to a transitional arrangement. However, the hourly rate will be applied at the point at which people who benefit from the transitional arrangement apply for settlement.
No discounts apply to the going rates that applicants must be paid when applying for settlement as a skilled worker. This may mean that in order to qualify for settlement, some skilled workers (eg, those who scored tradeable points based on a discounted going rate) will need to have their salary increased so that it meets all of the following:
Amendments to salary requirements – certain science and higher education teaching roles
When the skilled worker route was introduced, the going rates for skilled occupations were reviewed, resulting in substantial increases in the going rate for the following Standard Occupational Classification (SOC) codes:
A transitional arrangement is being made so that individuals who were last granted immigration permission under Tier 2 (General) in these SOC codes can extend their stay and settle in the United Kingdom on the basis of a table setting out lower going rates than apply to other skilled workers in the same occupations, provided that they apply by 30 November 2026.
Amendments to shortage occupation list
The UK-wide shortage occupation list is being expanded for applications made on or after 6 April 2021 to include roles under the following health and care sector SOC codes:
Secondary teaching professionals (SOC 2314) in modern foreign languages are also recognised as a shortage occupation and SOC 5434 Chefs are removed on the basis that they now qualify under the main skilled worker route and at a lower salary level than required on the shortage occupation list.
These changes partly adopt the recommendations made by the Migration Advisory Committee (MAC) in September 2020, which the Home Office deferred acting on immediately due to uncertainty around the labour market effects of the COVID-19 pandemic (for further details please see "MAC publishes report recommending expanded shortage occupation lists").
Employers should note that to be eligible for 20 tradeable points due to the role being a recognised shortage occupation, the salary paid for individuals filling shortage occupations must still meet the £20,480 minimum salary threshold or 80% of the going rate for the role, whichever is higher. This is different from the previous position under Tier 2 (General), where inclusion on the shortage occupation list automatically entitled the applicant to points. A potential trap is that the going rate for Band 3 healthcare occupations is £19,737 in England, Wales and Northern Ireland, so employers for these roles must ensure that sponsored individuals are paid at least a basic salary of £20,480.
New occupations eligible for sponsorship
Following the MAC's recommendations, deckhands on large (nine-metre plus) fishing vessels and vent chick sexers have been made eligible for sponsorship. In each case, eligible workers must have at least three years' relevant experience.
A new compliance requirement is being added to require skilled workers to make a fresh application if their salary is reduced but they claim that they still qualify for the route on the basis of scoring a different set of tradeable points than they were previously approved under. This will enable the Home Office to assess individuals' eligibility for the different set of tradeable points.
Veterinarians will be able to rely on the English-language assessment that they passed for the professional regulation to meet the English-language requirement for sponsorship under the skilled worker route.
The Home Office has reimplemented a transitional arrangement to allow intra-company transferees previously granted permission under the Immigration Rules in force before 6 April 2011, or as a work permit holder, to extend their stay under the intra-company transfer route with no maximum cumulative period of immigration permission in this capacity.
Holders of certain prestigious prizes (eg, Academy Awards, British Academy Film Awards, Brit Awards, British Fashion Council Fashion Awards, Golden Globes, Grammy Awards, Nobel Prizes, Olivier Awards and Tony Awards) will be allowed to qualify for the global talent route without needing an endorsement from an endorsing body. They will also be able to proceed to settlement after three years.
It has been confirmed that at settlement stage, dependants in certain work routes need not meet an absence requirement of no more than 180 days per year for any periods of immigration permission that they were granted before 11 January 2018. This is more restrictive than the rule which was inadvertently previously deleted, which covered periods of leave granted following an application made under the rules in place before 11 January 2018.
Under the current system, Tier 5 creative and sporting workers must have a maximum of 14 days between engagements. A new rule has been included so that time towards the 14-day maximum will be counted only when they are in the United Kingdom.
For further information on this topic please contact Andrew Osborne or Kathryn Denyer at Lewis Silkin by telephone (+44 20 7074 8000) or email (email@example.com or firstname.lastname@example.org). The Lewis Silkin website can be accessed at www.lewissilkin.com.
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