Points Based System

Briefing: how to hire a non-British worker by Charlotte Rubin

Notice: we do not help non-EU / overseas / foreign workers find jobs in the UK. Our service is available only to established national businesses that are looking to hire foreign workers, or for foreign workers with job offers in the UK.

Under the new immigration system, set to come into force on 1 January 2021, freedom of movement for EU/EEA/Swiss ('EU') citizens will end. Just like non-EU nationals, EU citizens who are not settled in the UK will have to apply for working visas if they wish to come work in the UK. Conversely, employers wanting to hire EU workers will have to apply for a migrant sponsor licence, just like they have to do now for third-party nationals.

Being a sponsor does not mean that the employer has to pay for the migrant worker’s visa application. It simply means that as a UK company wanting to hire overseas workers, the Home Office will do a check on the company’s organisation and trustworthiness in dealing with migrant workers, and assess whether the company is able to monitor and follow that their migrant employees comply with their visa conditions.

There are two types of working visas, and similarly, companies can get a licence to hire either type of worker. The first one is the Tier 2 worker visa, tailored towards non-British nationals coming to the UK as skilled workers with permanent, long-term job offers. This post will focus on how to apply for sponsorship to sponsor those Tier 2 workers. The second type is the Tier 5 worker, who comes to the UK temporarily. Good examples are seasonal workers (e.g. in agriculture) or charity workers.

For both types of sponsorship licence, the Home Office announced in February 2020 that “Employers not currently approved by the Home Office to be a sponsor should consider doing so now if they think they will want to sponsor skilled migrants, including from the EU, from early 2021." If you are an employer who intends to hire non-British workers from January 2020 onwards, it is now beyond time to apply for your sponsor licence, especially since the government has announced multiple changes to the sponsorship system which will make it easier for businesses to obtain a licence.

To facilitate the transition from free movement laws to the new points-based system, the government has proposed to lift the “cap” on numbers of migrant workers, meaning there is no longer a limit on how many companies can obtain such a licence every year. The government has also announced that the required skill level for sponsored job role will be reduced from January onwards, and roles requiring a skill level equivalent (roughly) to A-levels will be eligible for sponsorship, instead of the higher requirement of bachelor’s degree that is in place today. This, again, is to smoothen the transition from EU free movement to the stricter migration rules of the points-based system. Additionally, from January onwards, the Resident Labour Market Test (RLMT) will no longer apply, meaning that you will be able to hire foreign workers even if there are suitably qualified resident workers able to fill the role for which you are recruiting. This was previously not the case.

For all of these reasons, now seems like the perfect time to apply for a Tier 2 Sponsor Licence. So how should a business go about the application? Applications are made to a specific Tier 2 Sponsor Licence applications team at the Home Office. The process involves two different steps: an initial online form, and then a file of hard copy supporting documents which are due to be submitted within 5 working days of the online form.

The basic criteria that a company needs to meet to receive a sponsorship licence are numerous. Firstly, the business must be based in the UK. Secondly, the business must be “genuine,” and trading lawfully in the UK, meaning that the business will have to provide details of their organisational and sectoral structure. Supporting documents will need to include, for example, an up to date hierarchy chart detailing any owner, director and board members.

Thirdly, the business must be “honest, dependable and reliable,” a subjective and relatively vague requirement which is usually proven by submitting previous projects, reviews and contracts that show that the company lives up to its promises. Broadly, the supporting documents serve to show the Home Office that the sponsor company is capable of complying with sponsor duties and responsibilities and does not pose a threat to immigration control. The more details the sponsor provides, the better. That is why the business owner will also have to include details about the role(s) they are looking to fill, to ensure that these roles meet the skill, salary and qualification requirements for eligibility for foreign workers.

As such, to hold a Tier 2 Sponsor licence, the applicant organisation must have Human Resources systems in place to ensure that they are able to meet the various sponsor's duties and responsibilities as set out in the guidance. No details are provided as to what such a system entails, but broadly, the company must use this system to ensure accurate monitoring of employees’ immigration status, track and record their work attendance, and keeping copies of relevant documents for each employee.

As reiterated in the guidance, sponsorship is a privilege, not a right. That is why the process is not as straightforward as it could be – the applicant company has to earn the privilege of being a sponsor, and the burden of proof lies on them to demonstrate that they have done so. If you are looking to hire overseas workers, do not hesitate to contact us to help you with your Tier 2 Sponsor Licence application.

If you have any questions regarding absences or the EU settlement scheme, please do not hesitate to contact us here or send us a question on WhatsApp.

New Guidance on Points-Based System fails to give much new information by Charlotte Rubin

Last Monday, Home Secretary Priti Patel announced more details on the new points-based immigration system, which is set to come into force under six months from now on 1 January 2021. The new system is designed to compensate for the end of free movement of people with the European Union (EU), a system which allowed EU citizens to work in the UK (and UK citizens in the EU) without having to apply for immigration status.

The 130-page document published by the Home Office last week gives more guidance on how this Points-Based System, which in reality is not new, but a rebranding of the system currently in force, might work.

From the outset, the document states it sets out the main “economic migration” routes for post-Brexit Britain. Indeed, the document solely addresses immigration issues which bring some type of direct economic gain to the UK – from high-skilled workers and investor visas to student and seasonal visas. It does not deal with other (problematic) aspects of the immigration system, be it the insanity of indefinite detention, the abysmal amount of asylum support for asylum seekers during the pandemic, the cruelty of the hostile environment or the many faults of the EU Settlement Scheme (EUSS). There is no mention of the stringent family requirements, or extortionate visa fees, except to say that the Immigration Health Surcharge is here to stay. It may be refunded or cancelled for NHS and social care workers, and wider health workers.

As known from previously released guidance, the points-based visa system takes different factors like skills and language into account when awarding visas which allow foreign nationals to work in the UK.

As such, workers need to score 50 points from the general requirements (meaning they need to have a job offer for a job at the “appropriate” skill level from an approved employer). In addition, they need to speak English, and then score an additional 20 points based on the salary level, job type or, alternatively, by possessing a PhD. The general minimum starting salary for a job offer is £25,600, unless it is a job on the shortage occupation list, or if the applicant has a PhD relevant to the job. In those cases, the salary threshold may be lowered to £20,480.
Hoping to live up to their promise to take back control, the government has previously said it hoped Britons would fill a shortfall of around 120,000 workers, equating to 10% of all vacancies. In addition, the cap on the amount of migrant workers allowed to come to the UK is removed to allow employers to recruit more from overseas.

Initiatives like the much-awaited NHS visa, are also supposed to plug one of the main gaps in the labour market. Branded the new “Health and Care visa,” NHS clinical staff applicants will enjoy reduced visa fees and fast-track processes. Despite the name, however, the visa does not actually extend to care workers, as salaries and/or skill-levels for care jobs are often below the required threshold. Considering 17% of care jobs are currently filled by foreign citizens, there would still be a shortfall of at least 7% even if the ambitious Home Office goal of 10% is met. A solution to this shortfall could be to put these carer jobs on the shortage occupation list – but, in Home Office organisational tradition, that list has not been published yet.

So, not only is it unknown which jobs will qualify as shortage occupations, leaving people guessing at which jobs they may apply for and at which rate, but the logic of such a lowered threshold also seems flawed – if these positions are hard to fill, then how would offering lower salaries help attract more applicants?

A similar problem arises when it comes to seasonal (agricultural) workers. Whilst the government has made arrangements for seasonal harvest workers, the cap et on foreign harvesters falls below what the National Farmers’ Union recommended. The updated guidance fails to address this, instead stating that the farming sector will be reassessed at the end of this year after the end of a pilot scheme. In the meantime, crops are left to wither as the looming end of free movement is compounded by pandemic-related border closures, and seasonal harvesters fail to make it in time.

For businesses, the Immigration Skill Charge levied on employers remains unchanged, meaning that in addition to third-party nationals, ‘new’ EU/EEA/Swiss citizens from 1 January 2021 will cost businesses £1,000 per employee, per year. There is a reduced charge of £364 per employee, per year for small or charitable organisations. There will also not be a charge levied on EU citizens with status under the EU Settlement Scheme.

For students, the old ‘Graduate Route’ reopens in summer 2021, allowing students to stay in the UK for two years after their graduation to work or look for work. If they want to stay beyond those two years, they will have to switch into another visa category. The updated guidance focuses on working visas, rather than other options such as spousal or family visas.

As promised, the new guidance focuses on economic migration, wilfully overlooking other, more humane visa routes such as family or asylum. The focus of the guidance is on jobs, economic worth and border security. Yet, even for workers and economic supply chains, it fails to deliver, as it lacks overall detail on who will and won't be able to work in the UK once the points-based system actually takes effect.

At what cost do we take back control? The new points-based system explained by Charlotte Rubin

The United Kingdom (UK) left the European Union (EU) on 31 January 2020. Since then, the government has been rolling out changes to the immigration system, adapting it to a world without free movement to and from Europe. Today, the government finally revealed its plan for post-Brexit economic migration in Britain. At its core is the idea of “taking back control,” a slogan which won the 2016 Brexit referendum, implemented through the end of free movement, a new visa system for EU and third-party nationals alike and a focus on “skilled migrants” to reduce overall immigration.

A transition…

Under the current immigration rules, EU citizens do not need a visa to work and live in the UK because they benefit from freedom of movement. Those from outside the EU have to meet certain requirements such as English language skills, sponsorship by a company and a salary threshold in order to apply for a visa. There is a cap of 21,000 on the number of visas awarded per year.

Following the new plan, freedom of movement with the EU will end, and EU nationals will be subject to the same exact rules as non-EU nationals. As such, people coming to the UK from any country in the world for the purpose of work or study, other than some short-term business visitors and short-term students, will have to obtain a visa for which they will pay a fee. In addition, employers will have to pay an Immigration Skills surcharge on their migrant employees, and migrants from in and outside of the EU will have to pay an Immigration Health Surcharge. The only group unaffected by the new rules are Irish nationals, which the government states will be able to enter and exit the UK the same way they always have.

… to an Australian points-based system?

Freedom of movement will be replaced by with what the government calls a points-based system, supposedly modelled after the Australian immigration system which allows economic migrants to settle if they can demonstrate that they have a blend of skills and qualifications adding up to enough points. The selling point of a true points-based system is its flexibility, as it allows migrants to mix and match from a list of characteristics to reach the necessary threshold, and then settle in the host country without having to meet any mandatory requirements, such as an employment sponsorship as one needs in the US for example.

The government proposals released today, however, fail to offer that flexibility and probably explains the complete absence of the term ‘Australia-style’ system. The plan requires all economic migrants wanting to come to the UK to fulfil three essential requirements, which are worth 50 points all together. In addition to that, individuals will have to score another 20 points based on their salary expectations to reach 70 points overall, and be eligible to apply for a visa. The minimum salary threshold to reach 70 points automatically is set at £25,600. If the applicant earns less than that required minimum salary threshold, but no less than £20,480, they may still be able to reach 70 points by demonstrating that they have a job offer in a specific shortage occupation such as nursing, or that they have a PhD relevant to the job. The policy paper specifically states that there will be no regional concessions to different parts of the UK, nor will there be a dedicated route for self-employed people.

The three essential requirements are knowledge of the English language, a job offer from an approved sponsor, and a job at the appropriate skill level. These mandatory requirements differentiate the system from its Australian counterpart, and therefore, the plan is not a true points-based system. Especially the job offer requirement flies in the face of the Australian analogy, where every year, the largest percentage of new economic permanent resident visas are awarded to individuals without a job offer, but who make up for it with other skills or abilities from the list.

(Un)skilled workers

For highly-skilled workers, the government laid out its extended Global Talent visa route on the day Britain left the EU. Through this scheme, the most highly skilled, who can achieve the required level of points, will be able to enter the UK without a job offer if they are endorsed by a relevant and competent body. For now, this forms the only exception to the job offer requirement, although the policy plan promises to roll out a broader unsponsored route within the points-based system to run alongside the employer-led system in the future.

The appropriate skill level under the points-based system is set at the equivalent to A-levels. Anyone who does not meet that level will not be able to apply, as it is one of the mandatory requirements. Additionally, the plan explicitly states that there will be no general low-skilled or temporary work route ‘…shifting the focus of [the UK] economy away from a reliance on cheap labour from Europe…’, leaving immense labour shortages in specific industries. The list of low-skilled workers industries includes waiters, waitresses, elementary agriculture workers and fishery workers. The report unhelpfully states ‘Employers will need to adjust.’

Special arrangements are put in place for certain sectors such as scientists, graduates, NHS workers, to fill the gap, but these arrangements are unlikely to resolve the immense labour shortage created. The cap for the agricultural sector, for example, is increasing to 10,000 places per year for seasonal workers who harvest the fields, but remains far below the National Farmers’ Union’s (NFU) demands for 70,000 temporary visas in 2021. Nothing is mentioned of other groups likely to get caught up in the low-skilled workers group such as care home workers, waiters, cleaners or domestic workers. This drew immediate criticism from people in the sector, as the hospitality sector, for instance, famously relies on an EU national workforce, with Pret A Manger reporting that only one in 50 job applicants was a British national in 2018.

The newly released plan indicates a major overhaul in the UK’s approach to economic migration. It does not, however, affect students, family migration, or asylum law. Notably, none of these changes will take effect immediately. The transitional period, in which EU nationals are still free to exercise their free movement rights in the same way they were when the UK was still a part of the EU, is set to end on 31 December 2020. On 1 January 2021, then, is when the proposed changes will come into force. Even then, they will not take effect retroactively. As such, they will not affect the millions of EU citizens already living in the UK, and the job market is not going to change overnight. They will, however, change the composition of who comes and stays in the UK in the future. But for the 2016 Brexit voters, that future may be too far away to offer satisfaction.

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