23 December 2020

Please note that this article reflects the position from December 2020 and is not being updated.

The UK’s new immigration system came into force on 1 December 2020 and from 1 January 2021 anyone from outside the UK and Ireland (including all EU nationals) will require a visa if they want to work in the UK. Employers will need to hold a sponsor licence in order to sponsor employees for these purposes.

Is there a difference for EU and non-EU nationals under the new immigration rules?

From 1 January 2021, the immigration rules will apply to anyone outside the UK and Ireland. However, EU citizens and their families who arrived in the UK before 11pm on 31 December 2020 and who want to stay in the UK beyond June 2021 can make an application under the EU Settlement Scheme ('EUSS') before 30 June 2021 in order to retain the right live and work in the UK. For further information on the EUSS please see: What you need to know about the EU Settlement Scheme.

What are the new immigration routes for those who want to work in the UK?

The two main work visa options for overseas migrants are the 'Skilled Worker' route or the 'Intra-Company' route. The Visitor Visa or the Frontier Worker Permit may also be suitable in certain circumstances. If an employer is found to employ a worker who does not have the immigration permissions necessary to work in the UK they may be subject to significant civil and criminal penalties, including fines and/or a period of imprisonment of up to five years.

The Skilled Worker visa

This route is available to skilled migrants with a job offer who are sponsored by an employer. The government has temporarily suspended any cap on the number of Skilled Worker visas that can be granted, meaning there is (for the time being) no limit on the number of visas that can be issued under this route.

The key requirements for this route include:

  • The level of skill required to perform the role must be at RQF Level 3 or above, which will generally mean A level qualifications or equivalent (as set out in ‘Appendix Skilled Occupations’ of the immigration rules).
  • The salary must be a minimum of must be £25,600 or the 'going rate' for that particular job (whichever is the higher). There are exceptions to this – for example certain roles in the NHS or in the education sector, or if the individual has a PhD in a STEM subject relevant to the job. Where an exception applies, the worker must still be earning a minimum of £20,480.
  • The applicant must meet the English language requirement, for example by having an academic qualification which meets the requirements in the immigration rules or by passing an English language test as specified in the immigration rules. This will be met automatically if the applicant is a national from a majority English speaking country.
  • The applicant must meet the maintenance test, meaning that they must have funds of at least £1,270. Alternatively, eligible sponsors may certify that they will, if necessary, maintain and accommodate the applicant up to the end of the first month of the applicant’s employment, to an amount of at least £1,270. This test is automatically met if the applicant has been in the UK for one year or longer at the date of their application.

A Skilled Worker visa can last for up to five years. As long as the individual continues to meet the eligibility requirements, they can apply to extend their visa as many times as they like. This route also allows the individual to apply for Indefinite Leave to Remain (to settle permanently in the UK) after five years.

Intra-Company visa

This route is available to skilled migrants who are moving from a role in an international branch/subsidiary of a company abroad to one within the same company in the UK. This route is subdivided into the 'Intra-Company Transfer' route and 'Intra-Company Graduate Trainee' route.

As with the Skilled Worker visa, this route requires sponsorship by an employer and has a number of key requirements, including:

  • The employee must have worked for a linked entity outside the UK for a minimum of 12 months (Intra-Company Transfer) or three months (Intra-Company Graduate Trainee). This minimum length of service does not apply where the applicant is a 'high earner' with a gross annual salary of £73,900 or more.
  • The level of skill required to perform the role must be at RQF Level 6 or above, meaning degree-level or equivalent (as set out in 'Appendix Skilled Occupations').
  • The job must meet the 'going rate' for the particular job (as set out in 'Appendix Skilled Occupations') or a minimum of £41,500 for the Intra-Company Transfer route or £23,000 for the Intra-Company Graduate Trainee route, whichever is the higher.
  • The applicant must meet the maintenance test (see above). There is no English language requirement.

Intra-Company Graduate Trainees will be given up to 12 months’ leave while Intra-Company Transfer staff will be able to stay in the UK for a period of up to five years in any six year period (or nine years in any ten year period if they are a 'high earner'). This route does not lead to settlement.

What does this mean for employers who will recruit overseas nationals on and after 1 January 2021?

Unless the migrant has an alternative route of entry (such as Irish citizenship), employers will need to sponsor the migrant through either the Skilled Worker or Intra Company visa routes. This will significantly increase the time it takes to recruit (arranging sponsorship through these routes can take several months) and it can be expensive; employers will need to pay a fee to assign a Certificate of Sponsorship to the migrant (£199 – although this fee will not apply if the migrant is a citizen of a country which has ratified the European Social Charter) and the Immigration Skills Charge (£1,000 per migrant per year of sponsorship). The migrant will also need to pay for the visa itself (costing up to £1,480) and the Immigration Health Surcharge (£624 per year) unless they satisfy a relevant exemption. These fees are in addition to any fees the employer may need to incur in applying for or renewing a sponsor license if required (costing up to £1,476).

What should employers consider when recruiting from overseas?

You should:

  • Apply for a sponsor licence (if you don’t already have one). If migrants do, or will, make up part of your workforce, you will need to apply for a sponsor licence. This will allow you to sponsor incoming migrants so that they can apply for a visa. It can take several months to apply for and obtain a sponsor licence, although the Home Office have introduced a priority service for eligible applicants (costing £500 and providing the applicant with a decision within 10 working days).
  • Familiarise yourself with your sponsor duties. Sponsors are subject to a number of ongoing duties (including, for example, reporting obligations) and you should ensure that the relevant employees (including your Key Personnel) are aware of these and appropriate systems are in place.
  • Review your existing workforce. It is useful to review the immigration status of your workforce on an ongoing basis in order to be aware of issues that need to be addressed (for example, visas expiring).
  • Review your recruitment and global mobility strategy. You should consider whether your approach to overseas recruitment remains viable under the immigration rules, given the additional costs, time and resource involved in sponsoring a migrant under the Skilled Worker or Intra Company routes and maintaining a sponsor license. Your recruitment processes should be updated depending on the outcome of this review, although you should take care that your recruitment processes are not discriminatory.
  • Train staff and allocate internal resources. You should ensure that your employees who are responsible for recruitment are trained on the UK’s new immigration system. This training will be particularly relevant for those involved in recruiting employees to your business. It will also be important for those who will have overall responsibility for ensuring that your organisation complies with its sponsor duties under the different immigration routes,

We are advising many of our clients on what the new immigration system means for their businesses. If you would like to know more, please do not hesitate to get in touch.

Key contact

Headshot of Adrian Martin

Adrian Martin Partner

  • Head of Employment
  • TUPE: Business Transfers and Outsourcing
  • Restructuring and Redundancy

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