Our Immigration Associate, Gurjit Pall, recently hosted a webinar on the key developments in immigration law over the last 12 months and what to expect from 2022. We discuss the key highlights below
1. More business will need to apply for a UKVI Sponsor Licence
EEA nationals who arrived in the UK after 1 January 2021 require a visa to work in the UK. For professionals, the Skilled Worker visa has been the most popular route but this is conditional upon key eligibility criteria, the main one being sponsorship from a UKVI registered sponsor licence holder.
This requirement has led to a sharp increase in sponsor licence applications as employers seek to maintain access to the EEA recruitment market. From January to September 2021, the Home Office Transparency Data report confirmed that nearly 12,000 applications for worker sponsor licences were received, compared to only 5700 for the full year in 2019.
This trajectory is expected to continue in 2022 as businesses recover from the interruption to commercial activity caused by the pandemic. For many, recruitment was placed on hold during the various lockdowns but with record numbers of resignations occurring across all sectors, ensuring access to job candidates in the EU and beyond has become increasingly vital to business operations.
This likely increase in applications will impact upon the Home Office’s processing times and we urge businesses considering applying for a licence to start the process early to avoid operational delay. For more information on sponsor licence applications, please consult our earlier blog and contact out Immigration Law team for advice.
2. Changes to Home Office compliance visits
The pandemic saw the notorious Home Office compliance visit largely shelved due to social-distancing restrictions. This is reflected in the compliance penalties issued last year. According to the Home Office Transparency Data published to September 2021, only 12 licences were suspended and 6 revoked in 2021, a drastic downturn from previous years.
However, it is expected that compliance visits for both new and existing sponsors will resume in 2022 with a modified format, with the Home Office conducting telephone checks and/or emails on potential sponsors as an initial measure. Applicants who underperform during the telephone check or fail to provide the requested information and documentation in a timely manner may find the Home Office follow up with an on-site visit. Such checks, whether conducted by telephone, email or in person, are critical to the success of any sponsor licence application and it is essential that businesses and their staff are prepared to demonstrate their lbility to meet the compliance obligations of sponsorship.
3. A new right to work regime from April 2022
Adjusted right to work checks, discussed in our earlier blog, will remain in place until 5 April 2022. Employers can continue to use video technology to perform remote right to work checks until this date.
However, the right to work regime will be updated from 6 April 2022. Manual checks on potential employees and/or existing employees in possession of biometric residence permits will no longer be acceptable proof of right to work meaning employers will be obligated to perform online checks for all non-UK and non-Irish national staff, whether from the EEA or otherwise.
A similar online check using the platform Identification Document Validation Technology (IDVT) will be launched for British and Irish nationals for a fee, although manual checks will still be permitted in respect of these candidates for the time being.
Employers should review their recruitment practices to ensure staff understand how to use the online system and carry out such checks in a non-discriminatory manner. It is worth noting that right to work checks must be carried out before the first date of employment but these changes are not retroactive. Employers are therefore not required to revisit checks on existing staff for the time being.
4. New visa routes opening for highly skilled professionals
We can expect to see three new visa routes for highly skilled professionals in 2022. The Global Business Mobility, the Scale Up visa and the High Potential Individual visa.
The Global Business Mobility route is due to appear in Spring and is aimed for overseas businesses seeking to establish a presence in the UK or transfer staff to the UK under the existing UKVI sponsorship system. The Global Business Mobility route will incorporate and reform the current Intra-Company Transfer (ICT) visa with the new system launched to make it easier for overseas businesses to assign and manage workers coming to the UK under the Global Business Mobility route.
The Global Business Mobility regime promises to improve on the ICT by addressing its shortcomings, crucially by allowing holders to qualify for settlement. Much remains unknown in terms of eligibility and we await further details in Spring.
The Scale Up visa was announced in Autumn 2021 by Rishi Sunak, UK Chancellor of the Exchequer, and is designed to be a non-sponsored route for individuals who are experts in their fields. The eligibility criteria include requiring a job offer from an eligible “scale-up” business, a minimum salary of £33,000 per annum and sufficient knowledge of the English language. This may provide an interesting option for SME’s seeking to attract highly skilled individuals and the specifics of eligibility, including who qualifies as a “scale-up” business, are highly anticipated.
Finally, a High Potential Individual visa has also been announced for 2022, aimed for internationally mobile individuals who demonstrate high potential to come to the UK. The UK government have confirmed that applicants who have graduated from top tier universities from around the world will be eligible for this route. Again, the details are minimal at present although the UK Government have confirmed that successful applicants will be able to extend their visa and settle in the UK, subject to the requirements of this visa route being met. We will release further guidance as more information is announced.
5. Extension of the Youth Mobility Scheme to India and Iceland. Will we see more?
The Youth Mobility Scheme is a temporary work visa available to nationals aged 18 to 30 years of certain qualifying countries. India, Iceland and San Marino join the list of qualifying states in 2022. We may well see more countries being included in the scheme, particularly EU and EEA countries, in 2022 although no such proposals have been published yet.
6. Skilled Occupations List to include more jobs in the care sector
The reality of the Skilled Worker visa is that, sadly, not all jobs are capable of sponsorship. Only occupations featuring on the Skilled Occupations List or, as of February 2022, the Shortage Occupation List, are eligible under this visa route.
A welcome change taking effect on 15 February 2022 is that care workers, care assistants and home care workers will be added to the Shortage Occupation List (note, these roles still do not feature on the Skilled Occupations List). The government has indicated that this change will take effect for a 12-month period, so until 14 February 2023, after which it will be subject to review.
Applicants applying for entry clearance or further leave to remain on this basis will fall within the Health and Care branch of the Skilled Worker visa, benefitting from fast-tracked decision making and reduced fees. A minimum salary threshold of £20,480 per year or £10.10 per hour will apply and we would encourage potential applicants and sponsors to contact us for advice to check eligibility.
7. Late EU Settlement Scheme applications to becoming increasingly challenging
The deadline for applicants applying for pre-settled or settled status under the EU Settlement Scheme (EUSS) was 30 June 2021. Late applications were permitted, and still are, where the applicant provides a reasonable explanation for the delay. We would urge anyone impacted by a late application to contact our Immigration team as a matter of urgency in 2022. As the 30 June 2021 recedes further and further into the past, applicants may find the “reasonable explanation” criteria more difficult to overcome and robust legal representations will be necessary to increase the likelihood of success.
Although the Home Office guidance confirms that retrospective Right to Work checks are required for EEA citizens employed prior to the deadline of 30 June 2021, where it becomes known to the employer that an EEA employee is without status under EUSS, the employer does not need to cease employment at the time. In such circumstances, you will be required to advise the individual to submit an application for status under the EUSS within 28 days.
Where the EEA employee submits the application within 28 days, they should receive a Certificate of Application (CoA) which the employer should use to then carry out an online right to work check. If the EEA employee does not make an application for status under EUSS within 28 days, the employer will need to terminate the person’s employment in line with right to work legislation.
