Business Immigration – A guide for employers

Please note: Significant changes to the Points Based System were introduced in the ‘Statement of changes to the Immigration Rules’ issued on 14 March 2024. We are currently updating this guide to reflect these changes. Many of the changes are set to take effect from 4 April 2024, so if you have any queries on how the changes might affect your organisation, please get in touch with your usual Burges Salmon contact or a member of our Business Immigration team.

Introduction

In this guide, we provide a summary of the key issues for employers to consider when recruiting overseas nationals under the Points-Based System.

The UK’s immigration system

Since 1 January 2021, everyone (except for UK and Ireland nationals) has required immigration permission if they want to work in the UK. 

Following Brexit and the end of freedom of movement, EU, EEA and Swiss nationals (and certain family members) who arrived in the UK before 11pm on 31 December 2020 had until 30 June 2021 to apply for (pre-)settled status under the EUSS in order to retain the right to live and work in the UK. It is still possible to apply under the scheme if individuals meet one of the criteria for a late application, or have ‘reasonable grounds’ for not applying before the deadline, but this will only apply in limited circumstances.

The Points-Based System (PBS)

All nationals from outside the UK and Ireland looking to work in the UK who are not eligible to apply under the EUSS and do not have an alternative route of entry (for example, eligibility for a visa as a spouse/civil partner of a UK or Irish national or person settled in the UK) will need to obtain a visa under the PBS.

The main business immigration routes under the PBS include:

• Skilled Worker – for individuals in skilled roles sponsored by a UK employer. This route replaced the previous Tier 2 route. See more details below.
• Global Business Mobility (Senior or Specialist Worker) – for overseas employees moving to a linked UK entity. This route replaced the previous Intra-Company Transfer route. See more details below.
• Global Business Mobility (UK Expansion Worker) – for senior managers or specialist employees who are undertaking temporary work assignments in the UK related to a business’ expansion to the UK. This route replaced the previous Sole Representative of an Overseas Business visa.
• Global Talent – for leading individuals in academia/research, the arts and digital technology, who have been endorsed by a Home Office-approved body or won an eligible award.
• Graduate – for individuals who are already in the UK under a student visa and who meet various eligibility criteria. The visa allows the graduate to stay in the UK for two to three years to look for, or undertake, work. There are no restrictions on the type of work that graduates can do under this type of visa and it does not require sponsorship.
• Innovator Founder – for individuals who have been endorsed by a Home Office-approved body to set up an innovative new business in the UK, which is different from anything else on the market. This route replaced the previous Innovator visa route with effect from 13 April 2023.
• Scale-Up – for individuals with a skilled job offer from a “qualifying UK scale-up” (broadly speaking, a fast growing business that holds a sponsor licence and meets certain criteria).
• High Potential Individual – for individuals who have graduated from a top global university within the last five years. This visa allows individuals to obtain a work visa for between two and three years without the need for a sponsor.

We can provide advice on all the routes listed above, but this guide focuses on the Skilled Worker and Global Business Mobility (Senior or Specialist Worker) routes, as these are the most common routes used by businesses to employ overseas nationals in the UK.

Skilled Worker

This route is available to skilled migrants with a job offer from a UK employer which holds an appropriate sponsor licence (see below). Critically, employers must only sponsor migrant workers where there is a genuine vacancy and must keep documents to show that this is the case.

In order to qualify for sponsorship under the Skilled Worker route, the role must:

• be a genuine vacancy;
• be in an eligible occupation (as set out in the ‘Appendix Skilled Occupations’ of the Immigration Rules);
• meet certain minimum salary requirements (in most cases, this will be £26,200 per year, £10.75 per hour or the ‘going rate’ for that particular role, whichever is higher. These rates are due to significantly increase from April 2024); and
• be sufficiently skilled (at or above “RQF Level 3”, which is A level qualifications or equivalent).

In addition, applicants must meet minimum English language requirements and, if they are applying from outside the UK, hold a prescribed level of funds (although employers can choose to underwrite this financial requirement).

There can be significant costs associated with Skilled Worker visas and these costs (together with the visa processing times) need to be factored into recruitment processes.

A Skilled Worker visa can be issued for an initial period of up to five years but, provided 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 (i.e. the permanent right to live and work in the UK without restriction) after five years, provided various criteria have been met.

Global Business Mobility (Senior or Specialist Worker)

The Global Business Mobility (Senior or Specialist Worker) route allows a UK company (holding an appropriate sponsor licence) to employ an overseas national from an overseas group company. The role must be sufficiently skilled (although in this case it must be at “RQF Level 6”, which is at or above degree level) and must meet minimum salary requirements (usually £45,800 or above or the going rate for the role, whichever is higher). Importantly, there is no requirement for the employee to meet any English language requirements.

Global Business Mobility (Senior or Specialist Worker) staff can 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 ‘higher earner’ (earning over £73,900 per year)). Time spent in the UK under this route does not count towards the qualifying period needed to obtain Indefinite Leave to Remain.

The Global Business Mobility (Senior or Specialist Worker) route forms part of the Global Business Mobility route, which was introduced in April 2022 (see further below).

Global Business Mobility route The Global Business Mobility route was introduced for overseas businesses seeking to establish a presence in the UK, or transfer staff to the UK. There are 5 sub-routes within Global Business Mobility, which share certain common rules and requirements. The majority of these sub-routes are only likely to be relevant to employers in quite specific circumstances. The Global Business Mobility sub-routes are as follows: Senior or Specialist Worker – see above. Graduate Trainee – this is the successor to the Intra-Company Graduate Trainee route. It is for overseas workers who are undertaking temporary work assignments in the UK, where the worker is on a graduate training course leading to a senior management or specialist position and is required to do a work placement in the UK. UK Expansion Worker – as noted above, this route is for senior managers or specialist employees who are undertaking temporary work assignments in the UK related to a business’ expansion to the UK. Service Supplier – this has replaced the provisions for contractual service providers under the ‘Temporary Work – International Agreement’ route. It is for contractual service suppliers employed by an overseas service provider and self-employed independent professionals based overseas, who need to undertake an assignment in the UK to provide services covered by one of the UK’s international trade agreements. Secondment Worker – this route allows overseas businesses to second its existing employees to a UK sponsor. The overseas organisation must hold a high-value contract (worth at least £50 million) with the UK sponsor and the contract must be registered with the Home Office. The maximum secondment period is two years. In order to qualify for sponsorship under the Global Business Mobility sub-routes, the role must be in an eligible occupation as set out in the relevant part of the ‘Skilled Occupations’ Appendix to the Immigration Rules.

Sponsorship

Migrants who are working under the Skilled Worker or any of the Global Business Mobility routes must be sponsored by a UK employer. In order to sponsor an employee, the employer must hold a sponsor licence, which involves making an application to the Home Office. It typically takes around eight weeks for the Home Office to process the application, although a priority processing service is available in some circumstances.

There are a number of requirements to become a sponsor and the Home Office may arrange a compliance visit to ensure that the sponsor licence is genuinely required and that the business understands and is able to comply with the duties that come with it (see below).

Sponsor duties

Employers with a sponsor licence must comply with a number of duties as a condition of their licence. These sponsor duties include (amongst others):

• reporting various matters to the Home Office within a prescribed time frame (such as absences or changes in the sponsored employee’s or the employer’s circumstances); and
• record-keeping (including retaining copies of passports, contact details, adverts and recruitment documentation).

The Home Office monitors compliance on an ongoing basis and it may undertake an audit at any time to ensure the business is complying with its duties. Visits can be impromptu or pre-arranged. Sponsors will be required to show that they have systems in place to prevent illegal working and to comply with their sponsor duties. Information about sponsored employees will also need to be readily available for inspection by the Home Office.

Failure to comply with sponsor duties can lead to severe penalties, including revocation of the sponsor licence, which would result in all sponsored individuals having their leave curtailed, typically to 60 days, at the end of which they would have to leave the UK if they had not found a new sponsor.

Other commonly used routes

There are a range of other immigration routes available for overseas nationals outside the EUSS and the PBS, including:

Visitor route

Individuals wishing to come to the UK for short periods can do so under the visitor route. Although visitors cannot undertake paid employment in the UK, they are allowed to do some activities which relate to their normal (overseas) employment. These are known as “permitted business activities”.

Examples of permitted business activities for visitors include: attending meetings, conferences and interviews, gathering information for employment overseas, being briefed on the requirements of a UK based customer (provided that any work for the customer is performed outside of the UK) and undertaking activities relating to the visitor’s employment overseas remotely from within the UK, providing this is not the primary purpose of their visit. Employers should be aware that the list of permitted business activities is limited and the visitor route is not suitable for individuals who will be carrying out any employment-related activities beyond the permitted business activities or whose employment will be transferring to the UK.

Youth mobility scheme

Subject to meeting certain eligibility criteria, individuals aged 18 to 30 (if they are from one of eight specified countries and territories) or 18 to 35 (if they are from Australia, Canada, New Zealand or South Korea) may qualify for a youth mobility visa which entitles them to work in the UK for up to two years. At the end of the two-year period, individuals from Australia, Canada, and New Zealand can apply to extend their visa by a further year.

Time spent in the UK under this route does not count towards the qualifying period needed to obtain Indefinite Leave to Remain.

Preventing illegal working and right to work checks

All UK employers (whether sponsors or not) are required to prevent illegal working by conducting a “right to work check” on all employees before the start of their employment. If an employer is found to have employed an illegal worker and has not conducted valid right to work checks, they risk a civil penalty and potentially criminal sanctions in certain circumstances. With effect from 13 February 2024, the maximum civil penalty for a first breach increased from £15,000 to £45,000 per illegal employee. On the same date, the maximum civil penalty for a repeat breach increased from £20,000 to £60,000 per illegal employee.

An employer will have a defence to the civil offence (known as a “statutory excuse”) if it can demonstrate it carried out a compliant right to work check before the person started employment. We provide more guidance on right to work checks here: Business immigration: getting right to work checks right (burges-salmon.com).

Employers will need to make sure that they have systems in place to conduct and record right to work checks in a legally compliant way, and that they avoid any discriminatory treatment of individuals in how these checks are carried out.

We advise many of the UK’s best known employers, as well as overseas businesses, on the immigration and employment aspects of recruiting and employing overseas nationals in the UK. If you have any questions, please get in touch with Huw Cooke or Megan Summers (both Senior Associates in our Business Immigration team). 

Disclaimer

This guide gives general information only and is not intended to be an exhaustive statement of the law. Although we have taken care over the information, you should not rely on it as legal advice. We do not accept any liability to anyone who does rely on its content.