Contributors
There have been a number of recent announcements from the Home Office on its raft of business immigration changes that are due to come into effect in Spring 2022. We set out what employers should be aware of regarding the upcoming digitisation of right to work checks and the new visa routes set to open from April 2022.
Digital right to work checks
The Home Office has published updated right to work guidance for employers in its drive towards a digitised immigration system. The changes follow a number of extensions to the temporary measure put in place during the COVID-19 pandemic, and will apply to all UK employers from 6 April 2022. The updated guidance is here: Right to work checks: an employer's guide - GOV.UK (www.gov.uk)
British and Irish citizens
From 6 April 2022 a new digital system called "Identity Document Validation Technology" (IDVT) will be available for employers to use to conduct digital right to work checks for British and Irish citizens who hold a valid passport. It is not compulsory for employers to use the IDVT and employers will still maintain a statutory excuse against a civil penalty if they continue to carry out compliant manual checks for British and Irish citizens.
Any checks using IDVT must be carried out via an Identity Service Provider (IDSP) and the list of certified IDSPs is yet to be published. If an employer engages an IDSP to carry out a digital check, it is still the employer's responsibility to ensure that the IDSP is certified to the required standard and that the digital right to work check has been carried out properly. It is therefore essential that employers provide appropriate training and guidance to their staff on the new checking process.
There will also be a cost of using the digital service, which will have to be met by employers, and some concerns have been raised that it may not be sustainable for some smaller firms (the cost is currently estimated to be between £1.45 and £70 per check). However, the general consensus amongst employers is that the change is a welcome one particularly in light of hybrid and remote working and the move towards digital and online right to work checks.
Biometric Residence Permit / Card and Frontier Work Permit holders
From 6 April 2022, all UK employers must conduct an online right to work check for all Biometric Residence Permit (BRP), Biometric Residence Card (BRC) and Frontier Work Permit (FWP) holders, using the Home Office online checking service. Employers will no longer be able to conduct a manual right to work check by accepting the physical document, even if a later expiry date is shown. If a manual check is conducted on an employee who holds a BRP, BRC or FWP from 6 April 2022, the employer will not be provided with a statutory excuse against a civil penalty if an employee is found not to have the right to work in the UK.
It is also relevant to note that employers will not be required to conduct retrospective checks on employees who used their physical card / permit to evidence their right to work prior to 6 April, as employers will maintain a statutory excuse against a civil penalty if the check was conducted in line with the guidance at the time the check was made.
COVID-19 adjusted right to work checks
The deadline for the COVID-19 adjusted right to works checks has been further extended by the Home Office and the end date is now 30 September 2022. The adjusted right to work check allows employers to check original documents remotely via a video call, rather than in person.
Whilst this is welcome news for many employers now that hybrid and remote working are here to stay, it is not expected that there will be any further extensions past September since social distancing and COVID restrictions are no longer in place.
New visa routes
Global Business Mobility Route
Consolidating the Intra-Company Transfer (ICT) visa, the Intra-Company Graduate Trainee visa, the Sole Representative of an Overseas Business visa and the Temporary Work – International Agreement visa into a single route, the Global Business Mobility (GBM) route will be launched in Spring 2022, and will enable overseas businesses to temporarily send workers to the UK in order to establish and expand their businesses.
The GBM will have five sub-categories and will cover various business scenarios such as:
- Overseas businesses with an existing UK presence looking to transfer employees with specialist skills, senior executives or graduate trainees to the UK
- Overseas businesses with no existing UK presence who are looking to transfer staff to work on expansion in the UK or to send staff on secondment or assignment to a UK business for specific purposes
- Service suppliers travelling to the UK to fulfil a specific service in line with a UK trade agreement.
Many elements of the ICT route are expected to be incorporated, such as the minimum salary and skill thresholds and the requirement to have a sponsor licence in place. However, it is expected that there will continue to be no English language requirement (which is an advantage of the ICT route) and that it might be a route to settlement (this is yet to be ironed out).
This is a long overdue change that is welcomed by businesses as it will hopefully simplify the process and reduce the administrative requirements. It should also make it easier for businesses to send staff to the UK, whether they have a UK presence or not, and will provide more options to transfer skilled staff, senior executives and graduate trainees to the UK.
Scale-Up visa route
This new route is being brought in as part of the "UK Innovation Strategy: Leading the future by creating it" and was announced in the Autumn budget. Full details of the visa route are yet to be released but it is understood that the Scale-up visa is designed to drive innovation by streamlining the process for the UK's fastest growing businesses to access overseas talent.
What we know so far is that to be considered a "Scale-up business", businesses must meet the following:
- Demonstrate an annual average revenue or employment growth rate of more than 20% over a three year period
- Must have a minimum of 10 employees
- Must be registered with HMRC.
One advantage of the Scale-up route is that there will be no Immigration Skills Charge (ISC) payable, which will be welcome news to employers, and visas under this route will be fast-tracked. Comparing this with the new GBM route, this route will be more aligned to the existing Skilled Worker route where applicants will need to meet an English language requirement. Applicants will also need a highly skilled job offer and will need to be earning a salary of at least £33,000 (or the going rate for that role, whichever is higher).
It is expected that the Scale-up visa will provide a route to settlement and will also provide individuals with greater flexibility to change jobs or employers. It is also expected that self-employment will be permitted under this route.
