Employment Law Trends in 2023: Changes in the World of Work
We discuss employment law trends, evolving bills, and shifting responsibilities for employers. So, what does 2023 have in store?Learn More
June 27, 2022
For rather obvious reasons (AKA the “B” word) we have seen significant changes to Immigration rules over the last few years and they just keep on coming.
As the freedom of movement, which came with being part of the EU, disappeared, the government sought to fill the gap in the workforce by amending the Immigration Rules to (theoretically) make it easier to employ staff from overseas. In this article we break down some of the key visas you should be aware of, and the benefits and drawbacks they pose for your business.
So, let's get started: What's the deal with UK working visas?
As many businesses are probably aware, up until the end of 2020, skilled workers could work in the UK under the sponsorship of a UK based employer on a Tier 2 visa. However, the requirements for a role to be eligible for a Tier 2 visa were pretty restrictive. For instance, unless the role was on a list of “shortage occupations”, the employer would need to show that they had advertised the role in the UK for at least a month. This was known as the Resident Labour Market Test (RLMT) and there were specific requirements as to how and where the role should be advertised. In addition, the minimum level of role was degree level, and the minimum salary was £30,000. However, the end of 2020 saw an overhaul of this type of visa. It was rebranded as the “Skilled Worker” visa. The RLMT was removed (although the sponsorship application process still requires would-be sponsors to provide details of steps taken to employ within the UK first), the skill level was reduced to the equivalent of A-level roles and the minimum salary requirement was reduced to £25,600, as well as other less headline grabbing changes, such as the cap on overseas application and the six-year limit on visa duration being removed.
Those of us working in business immigration hardly had a chance to catch our breath following the above changes coming into effect, only for more to follow in their wake.
Since 6 April 2022, Biometric Residence Card, Biometric Residence Permit and Frontier Worker Permit holders have been required to prove their right to work using the Home Office online service only. Employers cannot accept physical cards for the purposes of right to work checks.
Retrospective checks are not required on biometric card holders who, before 6 April 2022, used their physical card to demonstrate their right to work.
Manual checks continue to suffice for everyone else (including British nationals). If you haven't done so already, it’s important to review and update your onboarding policies in line with these changes. However, it is worth noting that, from 6 April 2022, employers can use Identity Document Validation Technology (IDVT) via the services of an Identity Service Provider (IDSP) to complete the digital identity verification element of right to work checks for British and Irish citizens who hold a valid passport (including Irish passport cards).
Digital identity verification conducted by IDSPs works by obtaining evidence of the employee’s identity, checking that it is valid and belongs to the person who is claiming it. Simple stuff. If you use the services of an IDSP for digital identity verification, holders of valid British or Irish passports (or Irish passport cards) can demonstrate their right to work using this method. This will ensure you’re in line with legal obligations and protect you in the case of a civil penalty. It is your responsibility as an employer to obtain the IDVT check from the IDSP. You will only have protection if you reasonably believe that the IDSP has carried out their checks appropriately, i.e. in line with the guidance.
There are 5 “new” visas under the “Global Business Mobility” banner (as of 11 April 2022), some of which are a rebranding of existing visas. Let’s break them down.
This appears to be a rebranding exercise. The new Specialist Worker visa is effectively the old Intra Company Transfer (ICT) visa. As with the old ICT visa, it enables the transfer of employees into the UK to a UK trading company holding a sponsor licence. In most respects it remains the same, in terms of,
The main change is a raise in mandatory base salary for transfers from £41,500 to £42,400. This salary can continue to include some allowances. If you are a user of the ICT route, you should review the salary change alongside your existing salary banding and consider whether you need to alter salaries more broadly.
This visa has replaced the Intra-company Graduate Trainee visa, which, until 2020 was the Tier 2 (Intra-company Transfer) Graduate Trainee visa. This visa allows workers to work in the UK for their employer’s UK branch. The applicant must have worked for the overseas employer for a minimum of 3 months in a managerial or specialist role, which is part of a graduate training programme.
A UK Expansion Worker visa allows a representative of a company to come to the UK to set up a branch of an overseas business that has not started trading in the UK yet. The worker must already work for the overseas business as either a senior manager or specialist employee.
This visa allows overseas employers to transfer an employee to the UK to do an eligible job for a different organisation. The overseas employer must have a high-value contract with the UK organisation.
A Service Supplier visa enables employees to live and work in the UK if they have a contract to provide services for a UK company, either as:
It’s worth noting that the only Global Business Mobility Visa which allows a worker to remain in the UK on a “long term” basis is the Senior or Specialist Worker Visa, which permits the worker to remain in the UK for 5 years; the others are all for an initial 12 month period, which could potentially be extended. It is also worth noting that none of these routes count towards the required 5 years to permit a person to settle in the UK. Therefore, workers looking to remain here long term are likely to seek to switch to a different visa, most likely the usual Skilled Worker route.
As of the end of May 2022 we saw the introduction of the High Potential Visa. This is a personal visa for graduates from the 50 top ranked "elite" universities (from a variety of countries) with degrees awarded in the last five years. The visa is granted for 2 years and allows flexible work including self-employment and even enables the visa holder to move between employers. It requires a minimum level of English and maintenance funds. Beneficially for companies, sponsorship is not required so correspondingly it will not attract sponsorship costs. The main downside, for the visa holder is that time spent on the visa will not count towards the time required for settlement. In an increasingly competitive global job market, graduates from such ‘elite’ universities might not be happy to remain on such a visa and might push for a visa under a sponsored route, which would ultimately allow them to settle in the UK.
In August 2022 we’re expecting to see the introduction of the Scale-up visa. While on paper this does look interesting there are some rather large question-marks hanging over this visa and how practical it will prove to be.
This visa is an unusual one in that it offers both sponsored and unsponsored routes. From a practical perspective, the worker needs to be sponsored as a scale up worker for 6 months but can then move on to another employer on an unsponsored basis. Applicants need a skilled job offer from a "scale-up" business which has registered as a scale-up sponsor. To qualify, the company will need revenue or headcount growth of at least 20% over three years and a minimum of 10 employees at the start of that period. After six months sponsorship the employee becomes unsponsored. Whilst an appealing looking route, it remains to be seen how many companies will meet these strict conditions. Even if you do, would you want to invest time and money into someone who, after six months, could freely move to your competitor?
As you can see there have been several new options for those looking to bring people into the UK to work for their organisations. However, it remains to be seen, how successful they are in addressing the shortage in the UK’s skilled labour market and to what extent they accomplish the government’s goal of plugging that gap.
Our employment lawyers are experts in making the world of work, work for you. Find out more about our employment law offering here.