MAC commissioned to report on intra-company transfers

Introduction
What factors should employers consider when thinking about using the ICT route in 2021?
Scope of MAC's commission regarding ICTs
What has the MAC been asked to consider beyond ICTs?
What will the MAC's approach be for working on this commission?

Introduction

On 1 October 2020 the Migration Advisory Committee (MAC) accepted a commission from the home secretary to review intra-company transfer (ICT) visa arrangements. The MAC has also been asked to consider what provision could be made to allow overseas businesses to send a team rather than one individual to establish a UK branch or, subsidiary or carry out a secondment to work on a high-value goods or services contract. The report is due by the end of October 2021, with a revised route likely becoming available in 2022.

The commission provides further confirmation from the Home Office that initially, the provisions for ICT workers should be broadly unchanged under the new immigration system when it launches on 1 January 2021. This is likely due to a lack of time and resource at the Home Office and a desire for the MAC to reform and launch both routes simultaneously, rather than a view that the current structure of the ICT route remains fit for purpose.

What factors should employers consider when thinking about using the ICT route in 2021?

Although the new ICT route will continue to allow businesses with international operations to temporarily transfer existing senior or specialist employees to a group business in the United Kingdom, it will become less attractive than the new Skilled Worker visa for the following reasons:

• One of the main advantages of the ICT route – namely, that there is no requirement to conduct resident labour market testing – will disappear as this will not be a feature of skilled worker applications.
• Applicants under the ICT route will still need to fill jobs at a bachelor's degree equivalent level or higher, rather than at an A-level equivalent or higher for the skilled worker route.
• The general minimum salary threshold of £41,500 for skilled workers under the ICT route will be higher than for the skilled worker route (which will be between £20,480 and £25,600).
• The general minimum salary threshold of £23,000 for graduate trainees under the ICT route will in some cases be higher than for the skilled worker route.
• Applicants under both the ICT and skilled worker routes will also need to meet the going rate for their occupation if this is higher than the general minimum salary threshold; however, under the skilled worker route, the going rate can be discounted for shortage occupations, holding relevant PhD qualifications, certain health or education occupations and new entrants to the labour market, whereas under the ICT route it cannot.
• The ICT route does not lead to settlement, whereas the skilled worker route does.
• The Home Office has indicated in recent stakeholder presentations that there will be no cooling-off period for the skilled worker route, whereas this is expected to be retained for the ICT route.

The ICT route may be the preferred or only option:

• where applicants cannot meet the English-language requirement for the skilled worker route;
• where applicants' remuneration will include guaranteed allowances such that their overall remuneration package will meet the salary requirements for the ICT route, but their basic salary without allowances will not meet the salary requirements for the skilled worker route; and
• for some graduate trainees whose salary will not meet the requirements for the skilled worker route, up to a maximum of 20 per sponsor per financial year.

Scope of MAC's commission regarding ICTs

The home secretary has asked the MAC to consider:

• the salary threshold for entry to the ICT route;
• what elements, if any, beyond base salary should count towards meeting the salary requirements;
• whether different arrangements should apply to the very highly paid;
• what the skills threshold for the route should be; and
• the conditions of the route, particularly those where it differs from the skilled worker route.

As part of its consideration, the MAC has been asked to ensure that the commitments made to the Mode 4 provisions of free trade agreements concerning ICTs are fully implemented under the Immigration Rules.

What has the MAC been asked to consider beyond ICTs?

The home secretary has confirmed an intention to expand the provisions for overseas businesses to allow them to:

• transfer a team of workers to the United Kingdom to establish a UK branch or subsidiary (currently, they can transfer only one senior executive); and
• send teams to the United Kingdom to work on a high-value goods or services contract.

The MAC has been asked to make recommendations on the eligibility criteria for workers and the sending organisation.

What will the MAC's approach be for working on this commission?

In accepting the commission, MAC Chair Brian Bell noted that as the ICT category is used by a limited number of companies, the MAC's approach to engaging with stakeholders may be slightly different than usual. There will still be a call for evidence (CfE) and a series of engagement events with key stakeholders, due to start in early 2021. Employers with offices in the European Economic Area that have not previously needed to use the UK immigration system may wish to ensure that they respond to the CfE or contact the MAC directly to ask to be included in stakeholder engagement events.

For further information on this topic please contact Andrew Osborne or Tyler Jones at Lewis Silkin by telephone (+44 20 7074 8000​) or email (andrew.osborne@lewissilkin.com or tyler.jones@lewissilkin.com). The Lewis Silkin website can be accessed at www.lewissilkin.com.