The UK Government has released a Statement of Changes in Immigration Rules, detailing new provisions related to the country's Post-Brexit immigration system. Although the new system will go into effect on January 1, 2021, the Statement confirms that new applications under the Points-Based Immigration System (PBIS) will be accepted beginning December 1, 2020. For a detailed review of the Post-Brexit PBIS, please visit our blog post here.
The October 22 Statement codifies and establishes a legal framework for the immigration policies that have been published over the past several months. As discussed in our previous blog posts, freedom of movement between the European Union and the United Kingdom will end on January 1, and all non-UK nationals, with few exceptions, will be subject to the new immigration rules. Irish citizens, for example, will have the right to enter, reside, live, and work in the United Kingdom without obtaining permission and without restrictions on their stay.
The new system is intended to simplify the United Kingdom's immigration rules, level the playing field for the immigration of all nationalities, and make the UK immigration system generally more accessible and transparent. In doing so, the Statement presents a series of appendices that describe the requirements for each immigration category. The following sections provide details on a number of key provisions included in the Statement.
I. The Skilled Worker Route.
As of December 1, 2020, the Tier 2 (General) Route will be discontinued, and the UK Government will begin accepting applications through the new Skilled Worker Route. Individuals who have previously obtained entry clearance or permission to stay through the Tier 2 (General) Route and are seeking to extend their status can apply for further leave or settlement through the Skilled Worker Route. More details on this route and the PBIS can be found in our previous blog post.
The Skilled Worker Route sits at the center of the new PBIS, effectively replacing the current Tier 2 (General) Route. This route is available for all prospective workers that are outside of the UK resident labor market who are seeking employment in the United Kingdom as "skilled workers." UK employers seeking to hire these workers must obtain a sponsor license from the Home Office.
II. The Intra-Company Routes.
Current requirements for graduate trainees will remain largely intact. However, the new rules have made several significant changes to the previous ICT Routes. The new system removes the twelve-month re-entry bar (cooling off period) for ICT visa holders who have departed the United Kingdom. These individuals will instead be afforded ICT leave for up to five years in any six-year rolling period or up to nine years in any ten-year period for high earners. High earners will be exempt from the twelve-month employment requirement prior to entering the United States and will also be able to "switch" into the ICT Route after already entering the United Kingdom under another route. The salary threshold for high earners will also be reduced to £73,900.
The statement establishes two Intra-Company Routes, replacing the Tier 2 (ICT) Routes: the Intra-Company Transfer (ICT) Route and the Intra-Company Graduate Trainee Route. The ICT Route remains available to "established workers who are being transferred by the business they work for to do a skilled role" in the United Kingdom. The Intra-Company Graduate Trainee Route is for workers being transferred to the United Kingdom as part of a structured graduate training program.
III. Hong Kong British National Overseas Route.
The Hong Kong British National Overseas (BN(O)) Route is for BN(O) citizens who are "ordinarily resident in Hong Kong or the United Kingdom" as well as their dependent partners and children. Individuals applying for entry clearance through this route must be ordinarily resident in Hong Kong at the date of the application. This route grants permission to the applicant for a period of either thirty months or five years, allows for work and study in the United Kingdom, and serves as a route to settlement.
IV. Changes to the Results of Evidenced Criminality.
The new rules require the refusal of applications for entry clearance, permission to enter, or permission to stay for applicants with certain criminal backgrounds. These instances include applicants who (1) have been convicted of a criminal offense for which they received a custodial sentence of twelve months or more, (2) are "persistent offenders," or (3) have committed a criminal offense that caused "serious harm." The new rules also require the cancellation of granted permissions for individuals with any of these backgrounds. For lesser offenses than those above, individuals may also be discretionarily refused entry clearance, permission to enter, or permission to stay, and existing entry clearance or permission may be discretionarily cancelled as well.
V. Additional Information for Employers.
As the Home Office will be publishing additional guidance regarding the administration of the new immigration rules, please continue to follow our updates on or blog, The Mobile Workforce.
As our previous blog post mentions, employers who will be required to secure a sponsorship license from the Home Office should begin preparing those applications as soon as possible. The UK Government has implemented an option for expediting these applications that will become available on November 12, 2020. Employers seeking to leverage the expedited option will be required to pay an additional £500 expedited processing fee along with the application fee.
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This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.