Although the Home Office stated that it wished to introduce a post-Brexit PBS, the post-Brexit system generally mirrors the former PBS in substance. The Immigration Rules for the post-Brexit PBS were published in October 2020 in the following Statement of Changes and Explanatory Memorandum.

Skilled Worker

This route replaces the Tier 2 (General) category, and the following changes have come into effect:

• reduction of the skills threshold from level 6 of the Regulated Qualifications Framework (RQF) (equivalent to degree level roles) to level 3 (equivalent to A-level educated roles);
• removal of cap on number of skilled workers;
• scrapping of the Resident Labour Market Test;
• scrapping of the six-year maximum stay in the UK under this route;
• scrapping of the 12 month ‘cooling-off’ period;
• reduction of the minimum salary threshold; and
• introduction of ‘tradeable points’ where the role does not meet the general minimum salary threshold or the going rate for the role, but the role is on the shortage occupation list, the applicant has a relevant PhD or is a new entrant.

For individuals who wish to work in the UK under the Skilled Worker route, a total of 70 points is needed to apply. All applicants must demonstrate they have a job offer from an approved sponsor (20 points), the proposed role is at the required skill level (20 points) and that they speak English (10 points).

The further 20 points required to apply under this route can be earned by either meeting the general minimum gross annual salary threshold of £25,600 (currently £30,000) or by ‘trading’ points where the salary is less than the minimum salary threshold but at least £20,480. In the absence of the required minimum salary, points can still be awarded, ie ‘traded’, where the role is on the specified shortage occupation list, the individual holds a PhD in a subject relevant to the role or the applicant is considered a new entrant. Note however that the minimum salary thresholds under the Standard Occupational Classification (SOC) code for a role still applies. In certain instances, the minimum salary required by the relevant SOC code will be higher than the general threshold and therefore this higher rate must be met.

The higher minimum salary threshold for applications for indefinite leave to remain (ILR, also known as ‘settlement’ applications) in the UK has also been removed. Now, applicants must be earning a minimum gross annual salary of £25,600 or at least the SOC code rate, whichever is higher. Tradeable points will not apply for these applications, although certain applicants will be required to meet a lower threshold (e.g. PhD applicants who previously held leave under Tier 2 (General)).

Individuals will only be eligible for tradeable points for holding a PhD if they are applying to be sponsored in one of the specified occupations – these are STEM roles and highly skilled roles which fall within the Home Office’s ‘top skill level’ list. In addition, it will be up to the sponsor to provide a credible explanation that the PhD is relevant to the role.

To be considered a ‘new entrant’ the applicant must meet one of the following criteria:

• be switching from the Student, Tier 1 (Graduate Entrepreneur) and Graduate routes;
• be under the age of 26 on the date of the application;
• the job offer is for a postdoctoral position;
• the applicant is working towards a recognised professional qualification in a UK-regulated profession; or
• the applicant is working towards full registration or chartered status with the relevant professional body for the job they are sponsored for.

There are also various transitional arrangements in place for those who held/hold UK immigration permission under Tier 2 (General) and now wish to make a subsequent application under the Skilled Worker route.

The Skilled Worker route is one which can lead to settlement and British citizenship in the UK. Eligible individuals are now able to switch into the Skilled Worker route from most other UK immigration routes – see the question on switching below for further details.

Global Business Mobility route

The Global Business Mobility (GBM) routes consolidate a number of old routes and expands on the provisions for overseas businesses seeking to establish a UK subsidiary or temporarily transfer specialised employees to the UK through a client, supplier or their own UK entity.

There are five sub-categories of the GBM route, each with its own rules, namely:

• Senior or Specialist Worker

• Graduate Trainee

• Secondment Worker

• Service Supplier

• UK Expansion Worker

The Senior or Specialist Worker and Graduate Trainee routes replace the Intra-Company Transfer (ICT) and Intra-Company Graduate Trainee routes respectively; the Service Supplier replicates and modifies some of the provisions of the Temporary Work—International Agreement route; the UK Expansion Worker replaces the Sole Representative route; and the Secondment Worker is a new route.

Global Talent

This is a route for highly talented and promising individuals in the fields of science, technology, engineering, medicine, humanities, culture and the arts to live and work in the UK and in comparison to other immigration categories, only subject to a few restrictions. There are two sub-routes: exceptional talent applicants must be established as leaders in their field and exceptional promise applicants must have shown potential to become leaders in their field.

Applications under Global Talent involve a two-stage process. Applicants must first apply for an endorsement from a Home Office approved endorsing body and, once the endorsement is granted, must then apply for immigration permission in the UK within three months.

 Start-up and Innovator

The Start-up route is aimed at new entrepreneurs seeking to establish a business in the UK for the first time, whereas the Innovator category creates a route for experienced entrepreneurs to establish an innovative business in the UK, subject to having  at least £50,000 available to invest in their new business. Applicants must be able to show that they have an innovative, viable and scalable business idea which is supported by an approved endorsing body.

Student

This category opened on 5 October 2020. Applicants are required to demonstrate that they have an offer from an approved educational institution, speak English and are able to support themselves for the duration of their course in the UK.

Applicants are be able to submit their applications up to six months before the start of their course and evidentiary requirements have been relaxed. Under this new route, there is no longer be a time limit on the length of time which an individual may study at post-graduate level in the UK.

Regrettably, applicants are only be permitted to have dependents under this route if the applicant is studying at post-graduate level for at least nine months or if they have been sponsored by a government to study a course longer than six months.

Graduate

The Graduate visa opened on 1 July 2021 and essentially reintroduces the Tier 1 Post Study Work category that was abolished in 2012. It allows international students who have completed a course of study at UK bachelor’s degree level or higher to stay and work in the UK for at least 2 years (or 3 years for PhD and other doctoral qualification holders).

To be eligible for the Gradate route, applicants must:

• be in the UK;
• hold a valid Tier 4 or Student visa at the time of application;
• have studied a UK bachelor’s degree, postgraduate degree, or other eligible course in the UK for a minimum period of time; and
• have successfully completed their course during the last grant of permission to study as a Student.

The visa is subject to the following restrictions:

• all types of work (including self-employment and voluntary work) are permitted, apart from work as a professional sportsperson;
• study is permitted, apart from a course provided by a student sponsor that would meet the requirements of a Student visa; and
• access to public funds is prohibited.

The Graduate route cannot be extended and does not count towards settlement. However, applicants can switch to the Skilled Worker route if they meet the relevant requirements. Time spent in the UK on the Graduate visa can count towards 10 years lawful residence in the UK for ILR purposes.

The route is unsponsored, meaning applicants do not require a job offer. There are also no minimum salary or English language requirements.

New dependants are not allowed. However, dependants who are already in the UK as Student dependants may apply as Graduate dependants at the same time as the Graduate’s application

 Other categories

The Home Office retained most of the other routes which previously existed, which are now open to EU nationals as part of the post-Brexit PBS. The rules of these routes are generally unchanged. These routes include:

• Appendix FM – for applicants who are the family members of a British citizen or a person settled in the UK and wish to join their family member in the UK;
• EU Settlement Scheme (EUSS) – for EU citizens and their family members to remain in the UK beyond the end of the transition period on 31 December 2020;
• Tier 1 (Investor) – for applicants who hold at least £2 million of their own funds which are: under their control, held in a regulated financial institution and disposable within the UK;
• Representative of an Overseas Business – for representatives of overseas businesses who are being posted to the UK to establish a branch or subsidiary of that business;
• UK Ancestry – for Commonwealth citizens who have a grandparent who was born in the UK;
• T2 Ministers of Religion – long term permission for people in leading roles in faith institutions, e.g. undertaking preaching and pastoral work, Missionaries or Members of a Religious Order who are taking up employment or a post/role within a faith community in the UK;
• International Sportsperson – for elite sportspersons or qualified coaches who are sponsored on a long-term contract to make a significant contribution to the development of sport at the highest level in the UK;
• Temporary Work – Creative Worker – for high skilled workers who have a job offer in the creative sector, e.g. as a musician, model or actor;
• Temporary Work – Charity Worker – for people coming to the UK to do voluntary work and not paid work for a charity;
• Temporary Work – Religious Worker – short term permission for people coming to the UK to work support the activities of religious institutions through non-pastoral duties;
• Temporary Work – Government Authorised Exchange – for workers coming to the UK through an approved government scheme in order to undertake work experience, training, academic research or a fellowship;
• Hong Kong British National (Overseas); and
• Youth Mobility Scheme – for individuals from Australia, Canada, Iceland, India Japan, Monaco, New Zealand, Hong Kong, South Korea, Taiwan, and San Marino, aged between 18 and 30 who wish to study or work for any employer in the UK for up to two years.

Other general changes

The new ‘Appendix Continuous Residence’ has been introduced. This Appendix clarifies that for settlement applications, applicants must not spend more than 180 days outside the UK in any 12 month period during the relevant qualifying residence period in order to be eligible. It also clarifies certain exceptions to this rule, including a new exception for ‘travel disruption due to pandemic’.

One of the major changes of the new system is that it is now much easier to switch between immigration routes from within the UK. This removes the need for many individuals to leave the UK to apply for fresh immigration permission under a new route.

Perhaps the most significant consequence of this is that it is now possible for individuals with permission under the Senior or Specialist Worker (Global Business Mobility) route (which does not lead to settlement in the UK) to switch from within the UK to permission under the Skilled Worker route (which does lead to settlement in the UK).

There are a limited number of routes which individuals are prohibited from switching from, which are:

• Visitor
• Short-term student
• Parent of a Child Student
• Seasonal Worker
• Domestic Worker in a Private Household
• permission granted outside the Immigration Rules

Innovator
The government has also announced plans to “revitalise” the Innovator route. See our article for more details.

A business requires a sponsor licence to be able to ‘sponsor’ foreign nationals in the UK under the PBS (however see comments below). Since 1 January 2021, businesses may also be required to sponsor EU nationals under sponsor licence to work in the UK.

If your business already has a sponsor licence, you do not need to apply for another one to be able to start sponsoring EU nationals. However, businesses who already have a sponsor licence should take this opportunity to ensure that their sponsor licence is up to date especially given lengthy Home Office waiting times of up to 18 weeks to approve certain changes made to a sponsor licence (such a change of address or addition of a new entity). Businesses should also ensure that they have the right HR tracking and monitoring systems in place in order to remain compliant with strict requirements ahead of the implementation of the new immigration system.

If your business does not have a sponsor licence, it should consider applying for one as soon as possible to ensure that, if required, it is able to employ individuals from overseas. Existing Tier 2 sponsors should automatically have been granted a new Skilled Worker licence and/or Senior or Specialist Worker (Global Business Mobility) licence, with the same expiry date as the existing sponsor licence. Sponsors should also have been granted an appropriate allocation of Certificates of Sponsorship (CoS).

The majority of sponsor licence applications are currently considered within two months; however this cannot be guaranteed, particularly given the ongoing COVID-19 pandemic. A limited priority service has recently been introduced, which aims to process applications within ten working days for a fee of £500.

Since 1 December 2020, sponsors must request ‘defined’ CoS for all Skilled Worker entry clearance applications, or ‘undefined’ CoS for all other types of application under the Skilled Worker and Senior or Specialist Worker routes.

You can find further guidance on how to make a sponsor licence application in our article. Please email enquiries@lauradevine.com if you require our assistance.

Businesses should act as soon as possible as the process of making a sponsor licence application and of the migrant applying for their immigration permission can be lengthy.

A business should take the following into consideration:

1. Obtaining a sponsor licence/making sure its current sponsor licence is up to date and that the business has the right HR monitoring and tracking systems in place to be compliant – as outlined above;
2. Applications fees – this may pose a significant financial burden for employers. The full list of Home Office fees can be found here. In addition to the Home Office filing fees, applications are also typically subject to:
   1. the Immigration Health Surcharge (IHS) – this is set at £624 a year (subject to certain exceptions) and is applicable to both the main applicant and any dependants;
   2. the Immigration Skills Charge (ISC) – this cannot be passed on to the migrant and must be paid by the sponsor. It currently amounts to up to £1,000 per year of sponsorship;
3. Length of sponsorship – Home Office filling fees differ depending on the length of sponsorship. The longer the intended period of sponsorship, the higher the application fee and associated disbursements; and
4. Timing of migrant’s application – Home Office standard processing times are typically 15 working days for out-of-country applications and eight weeks for in-country applications. Whilst priority services are usually available to expedite applications, these attract an additional cost (ranging from approximately £200 to £800 per applicant) and the scope of services differ depending on the type and country of application. Note also that the nationality of the applicant affects the supporting documents required for submission, some of which may require a substantial lead time to obtain.

Businesses wishing to recruit foreign talent under the Skilled Worker, Global Business Mobility and Student routes will require a sponsor licence.

It is possible for UK businesses to employ certain foreign nationals even if they do not have a sponsor licence, however, UK businesses should be aware that without a sponsor licence, the pool of talent that will be available to them for the purpose of recruitment is likely to be significantly reduced, especially in the long-term. In view of this, it is highly advisable for a UK business to apply for a sponsor licence as early as possible to avoid recruitment hurdles in the future.

EU nationals and their family members who have obtained status under the EUSS continue to be able to be employed by businesses who do not hold a sponsor licence.

Since 1 January 2021, EU nationals are viewed as non-visa nationals and do not require immigration permission to enter the UK when visiting the UK for a short period of up to 6 months. EU nationals who do not hold status under the EUSS must use their passport (not their national ID card) to enter the UK.

Visitors to the UK are subject to the UK’s visitor provisions which do not permit individuals to undertake productive work in the UK, such as taking employment or providing services to clients in the UK. They may however engage in limited business activities including but not limited to attending meetings, negotiating and signing contracts, provided that other requirements are met.

Under the post-Brexit system, visitors are able to undertake study in the UK for a period of six months – all non-recreational study will need to be undertaken at an accredited institution.

Please contact us if you would like further advice regarding the visitor category.

Employers are required to ensure that all employees are permitted to work in the UK and if applicable, have valid immigration permission for their specific job type.

You must ensure you carry out specific checks to establish an individual’s right to work in the UK before s/he commences employment. This should then ensure that the business establishes a statutory excuse against liability to pay a civil penalty for employing an illegal migrant worker should it subsequently be discovered that the individual is working illegally.

EU nationals will have their immigration permission granted electronically and should be able to use an online service to prove their right to work in the UK, i.e. they have been granted immigration permission either under the EUSS or under the post-Brexit immigration system.

The family members of EU nationals should also be able to use an online service to prove their right to reside and work in the UK if they have obtained UK immigration status under the EUSS. Other non-EU nationals continue to be issued with a physical document as proof of their immigration status (known as a Biometric Residence Permit). For these individuals, employers must conduct an online right to work check.