4 February, 2022 - 20:47

Will changes to immigration framework ‘ease the freeze’?

The pandemic and Brexit appear to have brought about the perfect recruitment storm, writes Tim Hayes, Immigration Partner with law firm BDB Pitmans. The general theme up and down the country, albeit in some sectors more than others, has been the difficulty in covering vacancies and the scarcity of human resources as the economy opens up once again. 

The Government has been keen to both plug the recruitment gap on one hand and, on the other, deliver on its much-vaunted ambition to promote its vision of a ‘Global Britain’. 

Will the forthcoming changes in the UK’s immigration framework do anything to ‘ease the squeeze’? In this article we round up the main changes on the horizon and assess what difference they might make.

Scale-Up visas

We have previously detailed what we know so far about the new Scale-Up visa in an article following the Chancellor’s budget announcement back in October 2021. 

However, despite first being announced in July last year, full details of the visa have not yet been set out ahead of its expected introduction in the spring 2022.

Open to companies from any sector, provided they have experienced average annual growth of over 20 per cent in either revenue or employment over a three-year period and had at least 10 employees at the start of the period, the Scale-Up visa will form part of the existing points-based immigration system.

While we await the release of further information, we do know that the Scale-Up visa will include a ‘fast track’ process which will hopefully allow applicants and potential-sponsors to bypass the long delays currently affecting other immigration routes.

It remains to be seen whether many businesses will actually fit into the rather restrictive Scale-Up visa profile. It is not yet clear whether Scale-Up visa employers will need to obtain a form of licence akin to the Skilled Worker route. 

If there is, prospective employers of Scale-Up visa holders may opt to forego a slightly faster sponsor approval process under the Scale-Up route and go down the longer but potentially more certain Skilled Worker route.

Global Business Mobility route

The Global Business Mobility (GBM) visa was announced back in March 2021 and also looks set to be introduced in spring 2022. The new route will incorporate and reform several existing elements of the UK immigration system, including the ICT route discussed below.

The GBM will enable overseas employers to transfer staff to the UK on a temporary basis in order to establish or expand their business. This new visa is set to incorporate recommendations from the MAC report and sets out five categories of workers who can take advantage of the route:-

  • Senior or specialist worker to meet specific business needs;
  • Graduate trainee as part of a training programme
  • Secondment worker to UK firms in high value contracts or investments
  • Service supplier to the UK in line with UK trade agreements; and
  • UK expansion worker to establish a UK presence.

As of yet, the eligibility criteria have not been set out fully by the Home Office and are likely to vary between each of the five categories, although there are also likely to be consistencies such as the requirement for a sponsor licence for any UK businesses receiving workers. 

Other requirements are likely to include a minimum skill level for the job, a required period of prior employment, and a minimum salary threshold. More details are expected to be released imminently with many overseas employers wanting to prepare effectively for the fast-approaching launch of this route.

High Potential Individual route

Back in July 2021 the Government published a UK Innovation Strategy policy paper which included initial details of a new High Potential Individual visa.
Aimed at attracting highly skilled and academically elite applicants the High Potential Individual visa will, it is suggested, allow high potential individuals to come to the UK without needing a job offer.

In theory this should expedite the process for applicants as it would avoid the delays involved with sponsorship routes into the UK. This new visa route would also allow individuals the flexibility to change jobs and employers during their time in the UK.

While details are still thin on the ground, what we do know is that applicants would need to have graduated from a ‘top global university’. It is hard to say conclusively what this means in real terms as ‘top global universities’ and ‘high potential graduates’ are yet to be defined. 

However, we believe there is likely to be a list of government-approved institutions, and requirements for age, salary and postgraduate qualifications. Currently there has been no confirmation of when this new High Potential Individual visa will be implemented.

ICT settlement

Due to its participation in the World Trade Organisation’s General Agreement on Trade in Services, the UK is required to allow individuals to enter, and temporarily stay in, the UK for business purposes. 

To this end, the Intra-Company Transfer (ICT) route allows international businesses to temporarily deploy staff to the UK, provided they have worked in their overseas branch for at least 12 months (subject to some exceptions).

Aside from the absence of any English language requirement for visa applicants, the main advantage of ICT visas was that there was no need to perform a Resident Labour Market Test or ‘RLMT’. 

Since the abolition of the RLMT at the end of 2020 there has been much less incentive for UK employers to use the ICT route when transferring staff from overseas group companies, particularly in light of a much higher minimum salary threshold under the ICT route compared to the vast majority of the minimum appropriate salary rates under the Skilled Worker category.

One other fundamental disadvantage of the ICT route compared to the Skilled Worker category has been the inability of ICT visa holders to settle in the UK after five years. Settlement might not be too important for someone being seconded to the UK for only a few months. However, with longer secondments and transfers both employer and employee can change their minds on the length of the UK job, particularly where family members may throw down roots here over time.

Currently, any period spent in the UK under the ICT route does not count towards permanent settlement. However a Migration Advisory Committee (MAC) report, commissioned by the Home Office, recently recommended that any time spent on the ICT route should lead to settlement. 

This is just one of 25 recommendations for reform of the ICT route set out in the MAC report and, while this change would make the route significantly more attractive to foreign employees wishing to settle in the UK, it remains to be seen whether the Home Office takes the recommendations on board.

Changes to right to work checks

One other forthcoming change to highlight, whilst not directly related to the recruitment squeeze and the new visa routes, is on right to work checks. The Home Office has recently published updated guidance stating that from 6 April 2022 right to work checks in relation to anyone holding a Biometric Residence Card (BRC), Biometric Residence Permit (BRP), or a Frontier Work Permit (FWP) must be carried out using the online system.

That means that from 6 April employers will no longer be able to accept physical BRC, BRP and FWP cards for right to work check purposes and those documents will be removed from the list of those acceptable for manual right to work checks. 

Despite the changes, employers will not be required to carry out retrospective checks for employees where a manual check was completed prior to 6 April.

It is expected that the temporary changes made to right to work checks in light of COVID-19 will come to an end on 5 April 2022 although it is possible that the Home Office may decide to extend them again nearer the time.

Currently there is no set date for when any changes may come in to force. However, with the ICT route set to be incorporated into the new Global Business Mobility framework (discussed below) in spring 2022, it is possible that any changes to the ICT route could be made then.

Conclusion

With many outstanding details of these new routes and policies still needing to be confirmed ahead of planned launches in the spring, it is so far unclear whether the Government will have sufficient time and bandwidth (what with other goings on in Westminster) to roll out the immigration changes discussed above and, even if it does, whether they will make any substantive difference to the recruitment issues employers are currently facing.

It is likely, in our view, that the new visa categories may well prove to be too restrictive to make much difference at least in the short term, particularly in relation to recruitment into lower-skilled jobs.

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