United Kingdom Archives

IMPACT – MEDIUM

What is the news? Starting Monday, the United Kingdom’s EU Settlement Scheme will open to the public for an expanded test phase for EU nationals in the U.K. to secure their residency rights.

Key points:

Starting Jan. 21, all EU nationals, as well as their non-EU citizen family members who hold a valid biometric residence card, will be able to register their citizens’ rights in the U.K. via the EU Settlement Scheme.
Under the EU Settlement Scheme:
- Those with five years or more of residence in the U.K. will be granted “settled status” and a right to a permanent stay in the U.K.
- Those with less than five years’ residence would receive “pre-settled status” with an option to re-register as “settled” in due course after Brexit.
EU Settlement Scheme applications are not mandatory at this stage.
By choosing to apply after Jan. 21, EU national applicants will provide valuable insight into the system’s functions and allow changes to be made prior to the full launch on March 30.
Applicants during this expanded test phase must use the EU Exit: Identity Document Check app, which is part of the integrated online application process, to prove their identity. They then must show National Insurance Number records or other official documents to prove residence.

Background: The U.K.’s EU Settlement Scheme was put into the U.K. immigration rules in August 2018, and has since been undergoing trials, initially with select universities and National Health Service trusts in northwest England, and then more widely in the NHS, with a full launch not expected until March 30. To date, 15,500 applications have been made, with 12,400 registrations completed, suggesting that the scheme is effective in delivering its aims (although a full report later this month should provide more details).

Analysis & Comments: This announcement means that the EU Settlement Scheme will be available to EU nationals in the U.K. sooner than many employers and employees expected. While registrations are voluntary, this announcement may encourage a surge of applications. In light of this updated timetable, employers looking to support employees with applications should be prepared to address further questions about the scheme in their Brexit communications and events for their employees.

Source: Deloitte LLP. Deloitte LLP is a limited liability partnership registered in England and Wales with registered number OC303675 and its registered office at 1 New Street Square, London EC4A 3HQ, United Kingdom.

IMPACT – HIGH

What is the change? The immigration health surcharge required of non-EEA nationals is set to double from £200 to £400 per year (£150 to £300 per year for students and Youth Mobility Scheme applicants).

What does the change mean? Employers, non-EEA nationals and their family members intending to stay in the U.K. for longer than six months should budget for the sharp increase. The surcharge must be paid up front and in full for each individual and for the full term of the visa at the time of application.

Implementation time frame: Jan. 8.
Visas/permits affected: All visa applications for work, study or joining family for stays longer than six months in the U.K.
Business impact: Companies should prepare for the increased costs. Employers who pay the surcharge will not be reimbursed if the employment relationship ends before the full term.

Background: The immigration health surcharge, which was introduced in April 2015, requires non-EEA nationals to contribute to their use of the National Health Service while in the U.K. The surcharge was expanded to include Australia and New Zealand in April 2016 and to the Tier 2 (Intra-Company Transfers) subcategory in April 2017.

A government review found that doubling the surcharge could generate an additional £220 million per year for the NHS, and in early 2018 the government announced plans to implement the increase by the end of the year.

Analysis & Comments: The immigration health surcharge is a significant upfront cost for companies recruiting non-EEA workers and its doubling will be felt by business. Companies should budget for the additional costs associated with hiring and retaining foreign workers.

IMPACT – MEDIUM

The United Kingdom has reached agreements on Brexit and citizens’ rights with Iceland, Liechtenstein and Norway (the ‘EEA EFTA states’), and, separately, with Switzerland.

The four countries are all part of Europe’s single market, but are not full members of the European Union and are therefore not covered by the EU Withdrawal Agreement and the U.K.’s EU Settlement Scheme. The U.K. now has three agreements on the table – the primary withdrawal agreement with the EU (which is awaiting a critical vote the week of Jan. 14), one with the EEA EFTA states, and one with Switzerland. The agreements largely offer the same levels of security on citizens’ rights.

Key Points:

If the EEA-EFTA agreement is signed, it would provide certainty for U.K. citizens living in Iceland, Liechtenstein and Norway, and citizens from these countries living in the U.K. The agreement would allow these people to live, work, study and access benefits on largely the same terms post-Brexit as they do now.
The agreement with Switzerland would provide certainty for U.K. citizens in Switzerland and Swiss citizens in the U.K. on generally the same terms.
In the event of a “no deal” Brexit, the citizens’ rights agreement with Switzerland would still apply. The U.K. also continues to seek separate “no deal” agreement with the EEA EFTA states.

Analysis & Comments: The agreements are welcome news for some 50,000 U.K. citizens living and working in Iceland, Norway, Liechtenstein and Switzerland, and roughly 30,000 EEA-EFTA and Swiss citizens in the U.K., as well as their employers. More will be known in the coming weeks about the consequences of “no deal” on the future of mobility between the U.K. and these countries.

IMPACT – HIGH

The U.K. Government published its 164-page white paper Wednesday on the proposed future immigration system, which would replace the current points-based system with a skills-based system. The provisions below would be effective starting January 2021 with further operational details intended to be announced in early 2020.

The headline principles

The end of free movement for EU nationals to the U.K. “It will be a system where it is workers’ skills that matter,” said Prime Minister Theresa May, “and not which country they come from.”
Movement to a single immigration system, meaning no separate immigration system is being created to accommodate EU nationals.
A goal of attracting quality workers, with skills as the main qualifying criteria.

The details

A skilled-workers route

This would replace the current Tier 2 system.
Most significantly, the Government has proposed abolishing the immigration cap “ensuring that there are no limits on the volumes of skilled migrants to meet the needs of businesses and the U.K. economy, the brightest and the best can always come to work here and EU migrants are accommodated in the future system.”
In response to the Migration Advisory Committee, the Resident Labour Market Test would be removed, i.e., no advertising of roles would be required before hiring a foreign national.
The minimum annual salary threshold would be set at £30,000, but consultations with employers may determine whether this is the right level.
This route may lead to settlement after five years (but not for intra-company transfers, who would need to follow a different route).
The Government would seek to maintain a route for intra-company transfers for skilled workers that would allow companies to transfer their existing employees from outside of the U.K.
The shortage occupation list would continue to operate, safeguarding critical workers earning less than £30,000 per year.

The skilled-worker route would be a sponsored route but the intention is to make this route simpler and easier to use. As a result of these changes, processing times are intended to be shorter and the system would aim to reduce the burden on employers. The end-to-end processing time for the skilled-worker route would be two to three weeks compared with current Tier 2 processing times of three to six months.

The skills charge and National Health Service charge would continue to apply.

A temporary short-term workers route

Low-skilled EU nationals have been able to enter the U.K. to work and settle using the existing freedom of movement. This would no longer be possible.
Starting in January 2021, individuals would be able to enter and work for 12 months but then would be subject to a cooling-off period requiring them to leave the country for 12 months before they could return.
The route would be open to individuals from low-risk countries, which would most likely include European countries, South Korea, Japan, Singapore, U.S., Canada and Australia.
It would not be a sponsored route, meaning that individuals would need to apply for their own visa allowing them to work in a temporary worker category.
This would be a transitional measure and the Government would monitor nationalities, duration and may introduce restrictions on numbers for this category.
No workers in this route will be able to bring dependants or access state benefits.
The final decision on whether this route would continue is likely to be made in 2025.

Youth Mobility Scheme (YMS)

The U.K. currently has a youth mobility arrangement with Australia, Canada, Hong Kong, Japan, Monaco, New Zealand, South Korea and Taiwan. These schemes allow people ages 18-30 to come to the U.K. for two years to work or study.
The white paper proposes to introduce a U.K.-EU YMS as part of their Mobility Framework “to ensure that young people can continue to enjoy social, cultural and educational benefits of living in the EU and the U.K.” This is intended to apply for 18-30 year olds for up to two years.
The scheme would be designed in a fashion that is similar to an existing YMS scheme and would be reciprocal between the U.K. and the EU. “It will provide an additional source of labour for the U.K. labour market,” the white paper said, “and provide continuing opportunities for British people to gain experience of living and working in the EU.”
Although the temporary short-term workers route has a 12-month limit, the YMS is an alternative for younger workers for up to two years.

Students

The new student system would be similar to the existing Tier 4 (students) system.
The most significant change is the reinstatement of the post-study work route allowing undergraduate and master degree students to work for six months after completion of their studies. Ph.D. students would be able to work for 12 months.
Notably, a post-study worker category would also permit switching into the skilled-worker category.

Visitors – “a secure and smooth border”

The Government will not introduce a visit visa regime for EU and EEA nationals.
EU and EEA nationals visiting the U.K. would be allowed to stay for up to six months and be able to undertake a range of activities during their visits, excluding work activities that would require a work permit.
Electronic travel authorization, or ETA, would be introduced for all non-visa nationals entering the U.K., but may possibly exclude EU and EEA nationals if reciprocal arrangements are accepted under the existing European Travel Information and Authorisation System.
EU and EEA nationals and visitors from low-risk countries would be able to use electronic gates (e-gates) when entering the U.K.
Significantly, the Government would allow “low risk” visitors to switch into other immigration routes; i.e., they would be able to apply for their work visa while visiting in the U.K.

Access to the UK benefits system

In line with the suggested changes to the immigration system, the white paper specifies that the Government is proposing that in the future individuals who are subject to immigration control would not routinely be able to access the U.K. benefits system. In practice they are suggesting that individuals moving to the U.K. from the EU would need to make significant contributions to the U.K. economy before they would be able to access certain state benefits. The expectation is that full access to the U.K. benefits system would only be available after settled status is granted, which is usually after five years. This would be a significant change from the current position of rapid access and would look to align the rights of EU migrants to access U.K. state benefits with those of non-EU nationals.

What if there is no deal?

The Government is intending to clarify its position on EU nationals entering the U.K.after March 29, 2019 if there is no Brexit deal, which is expected to be released shortly. Regardless, the Settled Status scheme which is anticipated to go live in early 2019 would apply.

Analysis & Comments: We welcome the proposed pro-business immigration system outlined in the white paper, which has taken into consideration the needs of U.K. and international businesses. The white paper looks to make clear that the U.K. remains open for business, aiming to attract the brightest and the best talent, while allowing for temporary low-skilled workers and youth-mobility workers to contribute to the U.K. economy. In our view, this white paper is a very positive first step toward the U.K.’s new immigration system starting in 2021.

What is the change? The Home Office has published a Statement of Changes to the Immigration Rules across most categories in the points-based system and announced plans to implement a new seasonal worker scheme pilot. The Home Office has also announced its intention to further reform the Tier 1 categories for non-employer-sponsored, high-skilled business migration to the U.K. in the spring.

Key changes: The following changes to the Immigration Rules are due to take effect Jan. 1:

The Tier 1 (Exceptional Talent) route has been expanded to include architects endorsed by the Royal Institute of British Architects, and digital technology applicants applying via the Tech Nation online application form are no longer required to supply paper copies of their specified evidence to the Home Office.
The new pilot scheme for non-EEA migrant workers coming to the U.K. to undertake low-skilled seasonal agricultural work has been set up; key employers identified by the Department for Environment, Food & Rural Affairs will be invited to participate.
A number of minor, more technical changes have been made to Tier 2 routes for skilled workers and under Tier 4 for students and Tier 5.

While full details are not yet available, the Home Office has also announced that the following changes can be expected shortly and to take effect by spring:

A new Tier 1 (Innovator) route for more experienced business people will replace the current Tier 1 (Entrepreneur). Applicants will require endorsement by a business sponsor, who will assess applicants’ business ideas for their innovation, viability and scalability.

Analysis & Comments: The current changes for Tier 2 skilled workers requiring work permits and other points-based categories are mostly technical and minor. However, planned reforms to the Tier 1 categories are part of the Home Office’s significant reconsideration of all non-employer-sponsored, high-skilled migration routes, and build on the introduction of a new Tier 1 (start-up) visa route announced in June. In addition, the implementation of the seasonal worker scheme pilot for selected agricultural employers is a significant step toward testing the effectiveness of proposed U.K. immigration reforms at alleviating seasonal labor shortages.

High Priority

What is the immigration news? In response to widespread media reports last week that the Home Office has suspended Tier 1 Investor visas, the agency issued a new press statement via email Tuesday that “The Tier 1 (Investor) visa is not currently suspended, however we remain committed to reforming the route. A further announcement will be made in due course.”

Foreign nationals intending to apply under this route should be able to continue to lodge applications under current rules.

Status: Ongoing.
Visas/permits affected: Tier 1 (Investor) visas.
Impact on business: For now, it appears that the Home Office will continue to accept and process new applications under this route.
What to watch: Applicants for Tier 1 (Investor) visas should anticipate stricter rules sometime in 2019.

Additional information: Last Thursday, multiple news organizations including the BBC, the Guardian and the London Times reported on the basis of a press statement from the Home Office that the Tier 1 (Investor) visa category would be suspended with immediate effect owing to concerns about abuse and money laundering in the program. Minister of State for Immigration Caroline Nokes issued a written statement to parliament the same day indicating the Home Office’s intent to introduce reforms to the Tier 1 (Investor) program in spring 2019.

The Tier 1 (Investor) category provides visas and a path to permanent residency to foreign nationals who demonstrate a minimum investment of £2 million. Currently, applicants may meet the investment thresholds through holdings in a regulated financial institution in the U.K. or overseas for 90 days before the application, or if the funds were already invested in the U.K., through holdings in U.K. government bonds, share capital or loan capital in active and trading companies registered in the U.K.

BAL Analysis: Foreign nationals seeking to apply under the Tier 1 (Investor) route should be aware that changes are forthcoming and are likely to tighten the eligibility criteria, which could include removing holdings in U.K. government bonds as a qualifying investment and the possibility of applicants needing to demonstrate that their business investments have been audited.

This alert has been provided by the BAL Global Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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IMPACT – HIGH

What is the news? The U.K. government has issued a policy paper confirming the treatment of EU and EEA nationals in the U.K., and U.K. nationals in the EU/EEA, in the event of a “no deal” Brexit.

What does this mean? The negotiated Brexit Withdrawal Agreement provides important protections for EU nationals in the U.K., and U.K. nationals in the EU. It gives all EU nationals already in the U.K. a route to stay permanently via the EU Settlement Scheme and creates an implementation window until Dec. 31, 2020 in which free movement would continue. This agreement has been approved by the U.K. cabinet and by the EU at a recent summit, but must still pass through the U.K. Parliament.

The U.K. government has clarified citizens’ rights and what will change if the Withdrawal Agreement is not passed. EU nationals and family members living in the U.K. before March 29, 2019:

Are still guaranteed to be able to stay in the U.K. and have a route to permanent residence using the EU Settlement Scheme on the same terms if they are living in the U.K. by March 29, 2019.
Will have a reduced time frame during which they may apply under the EU Settlement Scheme—they must apply by Dec. 31, 2020 and will not benefit from the six-month grace period for applications until June 30, 2021 as proposed in the Withdrawal Agreement.
Will continue to be able to rely on their EU passport or national identity card if they are asked to evidence their right to reside or right to work in the U.K., for example when applying for a job.
May be joined by family members until March 29, 2022 provided the EU national has settled status and the relationship existed as of March 29, 2019 and continues to exist at the time the family members apply. Children born after March 29, 2019 are entitled to the same rights. After March 29, 2022, U.K. immigration rules will apply.

Notably, the policy paper does not deal with EU nationals entering the U.K. after March 29, 2019 but before the new immigration system is implemented on Jan. 1, 2021.

The policy paper also sets out that:

Frontier workers will be protected. If they spend sufficient time in the U.K. they will be allowed to apply for settled status under the EU Settlement Scheme. Otherwise, they will be able to obtain a separate U.K. immigration status which allows them to continue frontier working into the U.K. after it exits the EU.
Access to healthcare, education, benefits and social housing will continue on the same basis as now for those who were in the U.K. before March 29, 2019.
Professional qualifications will continue to be recognized if the holder applied for or received recognition before March 29, 2019.
Iceland, Liechtenstein, Norway and Switzerland nationals’ rights will be negotiated under separate deals.
It will only be possible to challenge a refusal decision under the EU Settlement Scheme by administrative review or judicial review. There will be no referral to the Court of Justice of the European Union, as it will have no jurisdiction in the U.K. after March 29, 2019.
National identity cards would remain valid for travel to the U.K. until Dec. 31, 2020, but this is not guaranteed to remain the case after the new system is introduced on Jan. 1, 2021.

U.K. nationals in the EU:

The U.K. government cannot act unilaterally to protect the rights of U.K. nationals in the EU as with the EU Settlement Scheme, but has urged EU member states to act reciprocally to protect U.K. nationals and confirm their rights.
U.K. nationals returning to the U.K. will have access to education and healthcare provided by the National Health Service on the same basis as currently resident U.K. nationals. Further information will be published regarding U.K. nationals returning with EU and non-EU citizen family members.

Analysis & Comments: This policy statement confirms that there will be crucial differences for citizens’ rights in a “no deal” scenario. It should reassure the many EU nationals in the U.K. and their employers that they have a right to stay, and can continue to plan for the EU Settlement Scheme rollout in early 2019 (albeit with a reduced deadline to make their applications by Dec. 31, 2020). The greatest uncertainty is for new arrivals from the EU after Brexit on March 29, 2019, since very little detail has been disclosed as to how they will be treated in a “no deal” scenario.

IMPACT – MEDIUM

What is the change? Effective immediately, the U.K. government has suspended the Tier 1 (Investor) Visa category for new applications due to concerns about corruption. The visa allows foreign nationals to apply for visas and is a path to permanent residency in the U.K. if they are able to meet investment thresholds and criteria. The route will remain open for extension applications.

What does the change mean? The visas will be suspended until 2019, when stricter rules will be introduced to prevent fraud, including audits of applicants’ business investments and evidence that they have controlled a minimum of £2 million in funds for at least two years. Additionally, their investment under the Tier 1 Visa must be in an active U.K. company; investment in government bonds will no longer be considered.

Implementation time frame: Immediate.
Visas/permits affected: Tier 1 (Investor) visas under the points-based system.
Business impact: Foreign investors intending to apply for Tier 1 (Investor) visas will need to wait until the program reopens and should anticipate having to provide additional evidence that their business investments will benefit the U.K. economy.
Next steps: The Home Office is expected to release new guidelines at the beginning of 2019. The rules will require independent auditors to review applicants’ business investments.

Background: The Tier 1 (Investor) program was introduced in 2008. In 2014, following a Migration Advisory Committee report which found that the route provided little economic benefit to the U.K. labor force, the investment minimum was doubled from £1 million to £2 million. Until now, applicants could meet the investment thresholds through holdings in a regulated financial institution in the U.K. or overseas for 90 days before the application, or if the funds were already invested in the UK, through holdings in U.K. government bonds or share capital or loan capital in active and trading companies registered in the U.K.

Analysis & Comments: Foreign nationals will not be able to apply under the Tier 1 (Investor) Visa route until further notice from the Home Office. Applicants intending to apply when the program reopens should anticipate greater scrutiny, stricter investment criteria, and an audit of their businesses and investments.

IMPACT – MEDIUM

What is the change? China has instituted a new biometrics requirement for visa applicants in the United Kingdom.

What does the change mean? Applicants ages 14 through 70 who are applying for Chinese visas in the U.K. will be required to provide fingerprints and a digital photograph as part of the application process.

Implementation time frame: Immediate and ongoing.
Who is affected: Applicants for Chinese visas in the U.K.
Business impact: Employers should anticipate delays during the transition to the new procedures.
Next steps: Visa applicants should work with their immigration professional to coordinate their appointment at the appropriate Chinese visa application services center.

Background: The biometrics requirement took effect this month. Similar requirements have been implemented recently in other parts of Europe, as summarized below:

Country	Chinese Visa Application Service Center Location	Effective Date
Finland	Helsinki	Sept. 25
Romania	Bucharest	June 25
Demark	Copenhagen	Oct. 4
U.K.	London, Manchester, Edinburgh, Belfast	Nov. 1

Analysis & Comments: Visa applicants should factor in additional time to fulfil the biometrics appointment and the possibility of long queues during the first few weeks of this requirement.

What is the change? The Migration Advisory Committee has issued a call for evidence seeking comments from employers and other stakeholders to help determine which roles to include on a revised shortage occupation list.

What does the change mean? The feedback from employers will be used as evidence for the committee to make policy recommendations to the U.K. government about which occupations are accepted as being in national shortage and therefore may be filled by foreign nationals.

Key points:

Employers are advised to complete the online form to assist the MAC in identifying which roles currently have a national labor shortage to better inform government policy.
Annex A and Annex B of the call for evidence are key. Annex A is for businesses, organizations and public sector employees; Annex B is for recruitment agencies, industry groups, think tanks and academic institutions.
The MAC has listed specific job titles rather than broad occupations, and employers are asked to identify specific roles that are experiencing shortages.
The call for evidence covers all occupations and job titles at RQF level 1 and above (the lowest skill level) to ascertain the extent of national shortages in the U.K. The call for evidence is thus not limited to senior, professional and technical roles that currently support Tier 2 visas.
The shortage occupation list only covers occupations and jobs in national shortage and not regional shortage—i.e., the shortage must be in the whole of the U.K., and not just in a specific local area.

Background: The shortage occupation list supports the U.K.’s current Tier 2 work permit regime. It is a fixed list of occupations and job titles that are deemed to be in national shortage, thus permitting employers to recruit workers to fill them from outside the U.K. Employers with vacancies on the list are not required to conduct a resident labor market test—i.e., prove the role has been advertised and no suitable resident worker is available—before issuing a Tier 2 certificate of sponsorship to support a visa.

As the U.K. is due to leave the European Union on March 29, 2019, and the rights of free movement for EEA nationals and their family members are set to end, the U.K. immigration system must be reconfigured to accommodate these nationals who did not previously require visas. The potential loss of access to this visa-free European labor force is of concern to many employers, and labor shortages could be acute in certain sectors that rely on lower-skilled migration, such as agriculture, retail, distribution and hospitality.

When the MAC was previously asked to look at the U.K.’s system post-Brexit, its June report on EEA migration recommended lowering the qualification level for Tier 2 visas to middle-level skill workers (RQF level 3 and above), to cover a greater number of roles, and therefore a greater number of people, including EEA nationals. While the shortage occupation list has previously included only highly skilled roles with a minimum (RQF level 6 and above), this call for evidence considers lower skilled roles as well (RQF level 1 and above) to try to achieve a full picture of the U.K.’s labor needs.

After the call for evidence closes on Jan. 6, the MAC may decide to meet with industry professionals to gather evidence in more detail. The MAC will use the evidence from national labor statistics in concert with evidence from the call for evidence in making its final report and recommendation on the shortage occupation list.

Analysis & Comment: Ensuring that the list is a true reflection of U.K. business needs is one of the ways that employers, particularly those anticipating shortages, can aim to safeguard their business. This consultation gives U.K. employers an opportunity to influence government policy by providing an evidence base for a widened shortage occupation list which recognizes more roles that are subject to shortages. Employers are strongly encouraged to provide feedback to the MAC by completing the online survey, and responses should be evidence-based and supported by data where possible. Employers have the option to provide additional information apart from the online survey. The deadline for submitting comments and evidence is Jan. 6.