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McGill & Co is a Scottish immigration law firm specialising in UK immigration, nationality and refugee law.

The UK's new points based immigration system - insights for organisations

27 May 2020 Darren Stevenson Blog

On 9 April 2020 the Home Office published further guidance on the proposed immigration system that will regulate migrants who come to the UK to work. This system is expected to be rolled out towards the end of 2020, to take effect from 2021 as free movement from the EU ends.

Businesses now face an unprecedented challenge as a result of the COVID-19 pandemic, and forward planning is understandably inhibited. Any business seeking to engage migrant workers from 2021 will likely have to engage with the Home Office’s sponsor regime. Currently there are approximately thirty thousand licensed sponsors, and this figure is expected to grow significantly in the coming months.

For many businesses, the new immigration system undoubtedly presents an additional regulatory burden to engage with. We have sketched out some insights below:

1. The Home Office has invited applications from organisations now, even if they do not have concrete plans to sponsor migrant workers

Traditionally the Home Office expected a licence submission to contain detailed information about a particular hire, the type of occupation they would be performing, the salary to be paid, and information on any resident labour market searches that had been carried out. However since the announcement of the future immigration system it has been possible to seek a licence on the basis of the expected changes. In particular the expected expansion of the list of roles that can be sponsored to encompass all roles from Recognised Qualification Level 3 and above.

An organisation should still provide as much information as possible on its future migrant labour needs.

2. The COVID-19 crisis has resulted in a relaxation of the documentary requirements for a licence

The Home Office previously took a very hard line on the required documents to support a sponsor licence application. Indeed whilst the visa application rules had reformed to allow copies of documents, a sponsor application still required originals or certified copies of documents. This position has now changed, given the impracticalities of obtaining certified copies at the present time. The Home Office will now accept, on a case by case basis, digital copies of documents. This is a long overdue change, given the prevalence of online systems for banking and tax.

In addition the Home Office has been prepared to accept variations on documents which are sought in the relevant policy guidance, a position which has relaxed somewhat over the past few months.

3. Licence processing time remains steady and in some cases, the speed of processing has increased

We are now finding licences are granted in less than 3 weeks in many cases. Anecdotally we have heard of licences being granted in one week. Of course there is always the possibility that a licence will take much longer, particularly if a pre-licence visit is scheduled. However there is increasing evidence of a more streamlined approach to processing.

4. The governing policy guidance is expected to change

The Home Office has recognised that the current system is onerous and burdensome for employers. It demands a significant level of reporting within tight deadlines. Given the expected growth in sponsoring organisations there is a hope that the regime will be reformed and simplified.

5. The resident labour market test is being scrapped

The resident labour market test has been an onerous requirement for many organisations. The test itself is nuanced, and an employer isn’t permitted to simply select the best candidate, but to ensure there are no suitable settled candidates. An employer also needed to be careful to stipulate all skills, qualifications and experience required for a role, since selection decisions needed to be closely tied to what was sought in the original advertising. Added to this complexity were prescribed requirements for the type of advertising. There are many exceptions to the need to advertise a role, but often a migrant worker would end up competing for their own job, or an employer was prevented from promoting internally. The expectation is that the resident labour market test is being removed, and that minimum salary levels will serve protect the resident labour market.

6. Skill boundaries will change

The expansion of the list of roles that can be sponsored is the most significant change to the sponsor regime in a decade. It will greatly increase the types of roles that can be sponsored. It also promises to be a new subject of lobbying efforts across various sectors, as organisations push to have relevant occupations recognised as skilled to Recognised Qualification Level 3. The Migration Advisory Committee (MAC) has recently launched a Call for Evidence to consider the future Shortage Occupation List (SOL). The SOL will be important since it will allow a role, if listed, to be sponsored with a minimum salary less than the headline figure of £25,600.

It is likely that a further review will take place on the skill level of occupations, which was last updated a decade ago. Individual employers and representative organisations may wish to consider how to engage with the MAC on the development of the future system to ensure their labour needs can be met.

7. We cannot predict the future with certainty

This last point is more speculative, however the potential impact of COVID-19 cannot be under-estimated. If the UK economy weakens significantly, leading to increased unemployment among the resident workforce, then it is entirely possible that a more restrictive system is introduced than what is currently proposed.

Conversely, given the critical need for migrant labour in sectors such as healthcare and food production, the need for labour access may broaden the system further. In particular the Government has currently ruled out a route for ‘lower-skilled’ work, in a departure from what was proposed by Theresa May’s government. With acute pressure on certain sectors, across all types of occupations, this position may also change.

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