What’s happening in immigration law in 2022?

As a general direction of travel, the Home Office is continuing its post-Brexit programme of policy and operational change, including elements of liberalisation, simplification and technological improvement. There are also some deadlines to be aware of. In this article we explore some of the main themes we expect to see across the year and where to go for more information or assistance. To find out about the employment law trends of 2022, read our article here.

New immigration routes

Three new immigration routes of interest to employers are due to launch in Spring 2022.

Global Business Mobility route

The Global Business Mobility Route will incorporate and reform the Intra-Company routes, the Representative of an Overseas Business route, visitor rules for secondees from overseas clients of UK export companies and the provisions for contractual service suppliers and independent contractors under international agreements.

This route will give global businesses more options for sending personnel to the UK. One big change is that intra-company transferees may once again be eligible to settle in the UK, giving employers more flexibility to transfer a group employee quickly without the need to meet an English language requirement, even where this is with a view to settlement.

Overseas businesses will also likely be able to send a team of up to five personnel to set up a branch or subsidiary in the UK, rather than just one.

The provisions for seconding personnel from overseas clients of UK export companies are likely to be more restrictive than the current visitor provisions, but will allow secondees to be joined by their dependants.

It is not clear yet what changes there may be for contractual service suppliers and independent contractors, but these are likely to be relatively small as this element has not been subject to a full review, and is broadly aligned to the requirements of the UK’s international commitments.

When using the new route, employers should be aware that it is likely to be subject, at least initially, to a high level of Home Office scrutiny and monitoring. This is in part due to previous concerns over potential abuse of skill level, reported salaries and allowances for Intra-Company Transferees. Also, the proposed team subsidiary element of the route is likely to be launched as a trial and will need to be evaluated.

Scale-up route

This will be an unsponsored route intended to enable highly-skilled and academically elite individuals to move to the UK to work at a recognised UK scale-up business. The route will lead to settlement.

Eligibility criteria for the route are anticipated to include the following:

• A job offer from an approved ‘scale-up’ business which has demonstrated to the Home Office an annual average revenue growth or employment growth of at least 20 per cent over a three year period, and a minimum of 10 employees at the beginning of that period;

• A UK salary of at least £33,000; and

• Meeting an English-language proficiency requirement.

Although this route will likely benefit a relatively small number of businesses and individuals, it will provide some SMEs with streamlined access to skilled workers to assist with the hypergrowth phase of their development.

New High Potential Individual route

This route is also expected to be unsponsored and to lead to settlement. Eligible applicants will not need to have a job offer to qualify, so employers will be able to engage holders of this visa without having to participate in the process of securing it.

The criteria for the route have not yet been made publicly available, however it will be geared towards certain internationally mobile individuals with high potential to contribute to the UK. Eligibility may be linked to having graduated from a ‘top global university’ but may also incorporate other, and possibly tradeable, points-based factors. It is very likely that an English-language proficiency requirement will be included.

Need more detailed information or assistance?

See our article analysing the recommendations of the Migration Advisory Committee for the Global Business Mobility route.

We have also produced an overview of how the International Agreement route can be used to sponsor contractual service suppliers.

All of the new routes will be covered in our Immigration Law Academy on 29 and 30 March 2022. You can sign up for this here or get in touch with a member of our Immigration Team for specific queries.

Sponsorship

Being on top of immigration sponsor requirements, compliance and system changes will be critical for UK businesses in 2022.

Many more employers now need a licence to sponsor EEA national workers following the end of free movement, and more generally to fill skills gaps presented by the worker shortages being experienced across most industry sectors. These employers may need assistance to assess and advise on their readiness to become a sponsor, and to check their compliance with sponsorship obligations once a sponsor licence is in place.

Longstanding sponsors are also needing to rely more heavily on their licences. They may therefore benefit from refresher training or mock audits to limit the risk their licence may be suspended or revoked.

New and established sponsors will also be grappling with the compliance aspects of remote working that have emerged due to the pandemic.

Separately, there is a high level of corporate mergers, acquisitions and other restructuring activity at present. Restructuring may have implications for sponsor licences, including the need to make reports to the Home Office and in some cases a requirement to apply for a new sponsor licence.

The Home Office has confirmed its ‘sponsorship roadmap’ that sponsor compliance visits will remain a priority as it reforms the sponsorship system over the next few years. Onsite visits have resumed after being discontinued during the early phases of the pandemic, and we can expect to see greater activity in this area following additional compliance officer recruitment.

Lastly, a rolling programme of IT transformation changes is also planned in the sponsorship sphere up to at least the first quarter of 2024. A new service, ‘Sponsor a Visa’ will launch in mid-2022 and will allow visa applicants to access a partly-populated online application form once the details of their role have been approved. Employers will need to be aware of this change and will likely need to adjust their internal processes accordingly.

Need more detailed information or assistance?

Take a look at our article for further information on the Home Office’s sponsorship roadmap. This is part of the Home Office’s broader digitalisation agenda, which you can read about here.

Our Immigration Team has a wealth of experience in advising on and assisting with sponsor licence applications and ensuring compliance. We can help you with any queries if you are new to the process, or if you need advice on remote working or other compliance issues.

As part of our Immigration Solutions for HR, our Immigration Team can also offer training, compliance guides and mock audits of your systems to identify any areas of risk, suggest improvements and prepare you for a real Home Office audit.

COVID-19

With the pandemic continuing for the foreseeable future, the Home Office will need to adjust its immigration policies in response to prevailing conditions affecting international travel and processing of immigration applications.

Although the Home Office has wound back immigration-related concessions and returned to business as usual as much as possible during 2021, the likely emergence of coronavirus variants during 2022 means it is possible that remaining concessions will be extended, or new ones introduced.

Need more detailed information or assistance?

We are continuing to monitor how the pandemic impacts UK immigration and will provide updates here.

Our Immigration Team is also able to assess rapidly changing pandemic-related travel requirements and restrictions both for the UK and other countries, and to provide timely advice on the implications and options for internationally mobile people.

Global mobility

The COVID-19 pandemic has undoubtedly encouraged businesses to look closely at possibilities to work and do business meetings remotely. However, ongoing international skills shortages combined with tax, social security, employment law and regulatory requirements mean that being able to recruit and mobilise international talent will remain key for businesses worldwide in 2022.

To ensure compliance with immigration laws in EEA countries, UK employers also need to keep pace with the evolution of how these countries are regulating the entry and stay of British nationals post-Brexit.

Need more detailed information or assistance?

Our international presence allows us to offer a 24-hour service to clients, with support being available through our Hong Kong office and our membership of the Ius Laboris alliance (the leading alliance of global human resources lawyers). With language expertise including Mandarin, Cantonese, Japanese, French, Azerbaijani and Russian, our team regularly helps companies transfer personnel for work or business worldwide.

Our article canvasses some of the issues associated with remote working abroad.

See the Ius Laboris Brexit Guide for International Employers, which covers business travel, frontier worker rights, employment permission and residence across 25 jurisdictions. To keep up-to-date on global mobility developments, you can subscribe to Ius Laboris’s Immigration & Mobility insights here.

We have also produced a factsheet on Schengen visas.

EU Settlement Scheme

Although the main EU Settlement Scheme application deadline was 30 June 2021, in 2022 applications will still need to be made for joining members, and to convert pre-settled status to settled status.

Making a late application for inclusion in the scheme may also be needed where it is identified that an eligible person has failed to apply on time. This may arise during a right to work check, or where a business is in the process of considering immigration routes for a new hire to enter the UK.

Need more detailed information or assistance?

See our article highlighting some of the action points and considerations associated with using the EU Settlement Scheme.

Our Immigration Team can help with both straightforward and complex EU Settlement Scheme applications. We can also assist with British citizenship applications for those who have been granted settled status.

Right to work

The Home Office’s temporary adjusted right to work check process that was introduced to address the logistical issues created by the COVID-19 pandemic is scheduled to end on 6 April 2022. Online checks for those with biometric residence cards, biometric residence permits and frontier worker permits will become mandatory from the same date. Employers will need to think about appropriate changes to internal processes to be able to manage right to work checks in a compliant manner.

In addition, employers must continue to be mindful of the appropriate steps to take on discovering that a prospective or existing employee failed to apply for status under the EU Settlement Scheme on time, despite being entitled to do so.

Need more detailed information or assistance?

An overview of what is due to change on right to work checks from 6 April 2022 is covered in our article here. We have also produced an article on the process to follow in respect of the right to work for individuals who have made a late EU Settlement Scheme application or who need to do so.

Our Immigration Solutions for HR provide a full overview of the requirements for right to work compliance. We offer training and e-learning courses on right to work checks to help upskill your team and a handbook which can be used as a learning tool.

We can also help to update your internal policies and recruitment documents to ensure they are in line with the new right to work check requirements from 6 April 2022.

Amendments to family, private life and settlement routes

The Independent Chief Inspector for Borders and Immigration is undertaking an inspection into the processing of family visas, which is due to be delivered in 2022. The Home Office has also confirmed that simplification of the family, private life and settlement routes is planned, which will likely be timed to take the inspection findings into account. Although no clear date has been identified for the amended Rules to come into effect, engagement with stakeholders suggests it is likely to be in Autumn 2022.

Simplification and reform of these routes may be beneficial for employers as it may provide a more streamlined, flexible and cost-effective option than employer sponsorship for some individuals. It may in some cases be an alternative option where a prospective employee is not eligible for sponsorship.

Need more detailed information or assistance?

See our commentary on the Home Office’s strategy statement on legal migration and border control, including the planned reforms to the family, private life and settlement routes.

We will be monitoring developments in this area throughout 2022 and will publish further information once it becomes available. In the meantime, our Immigration Team can be contacted directly for any queries or to assist with applications under these routes.

Visitor visa reform

It is possible that the Home Office will review visitor visa arrangements during 2022, in line with a recommendation from the Migration Advisory Committee to consider accommodating time-limited essential work travel to the UK within these.

Need more detailed information or assistance?

See the discussion of how the visitor Rules may be revised to accommodate short-term assignments in our article here.

Our Immigration Team can assess whether planned activities fall within those allowed for visitors, or whether work permission is required. We can also assist with making visa applications as appropriate.