The Conservatives and Labour agree on many of the general themes relating to immigration, so it would seem likely that current policy proposals will be implemented as planned even if there is a change of Government. However, Labour’s policies have not yet been set out in detail, so there could be a re-set in some areas towards the end of the year or into 2025 if Labour comes to power.

In this article, we set out the main immigration changes most likely to be of interest to employers during 2024. To find out about what’s happening in UK employment law read our separate article here, and our Northern Ireland spotlight article here.

Illegal working civil penalty increases

Illegal working civil penalties cover the situation where a UK employer unknowingly employs a person who does not have the required permission to perform the job they are undertaking. From early 2024 the overall maximum illegal working civil penalty will increase from £20,000 to £60,000 per illegal worker identified. In addition, the starting point for a first breach will be increased from £15,000 to £45,000.

The draft order provides that the increase will come into effect on 22 January 2024 or 21 days after it is made, whichever is later. As the order is still progressing through Parliament and has not yet been made, it will come into effect in February at the earliest. 

An employer can obtain a statutory excuse against liability for an illegal working civil penalty by carrying out compliant right to work checks in line with Home Office guidance. Complying with the guidance is sometimes not straightforward and our clients often ask us for advice on how to correctly interpret the guidance.

Employers should consider bolstering their right to work checking processes to minimise the risk of incurring penalties and being subject to sponsor compliance action. For more information, see our article here.

Intensified sponsor compliance action

During 2022 and 2023, the Home Office ramped up sponsor licence revocations following a break in activity during the height of the pandemic. This trend is likely to continue in 2024, especially for sponsors in the care sector and in view of the Home Office’s continuing clamp down on illegal working.

All sponsors of workers need to be aware of their sponsorship duties and to ensure their HR systems and practices are robust. The risk of non-compliance can increase during periods of economic downturn as sponsors restructure their businesses, make changes to sponsored workers roles or make workers redundant.

It may be beneficial for sponsors to consider sponsor licence refresher training or a mock audit to limit the risk of a licence being suspended or revoked.

Significant restrictions on use of the Skilled Worker route

On 4 December 2023 the UK Government announced a ‘five-point plan’ to lower net migration, following on from recent high net migration figures. Many of the reforms restrict use of the Skilled Worker route. The Government anticipates this plan will build on previously announced restrictions on Student dependants as well as application fee and immigration health surcharge rises. The overall predicted fall in net migration is estimated at 300,000 people for the coming year.

The initial announcement was followed up on 21 December 2023 with a factsheet confirming further details of the policy, as well as a document on the estimated immigration impacts of it. For an analysis of these documents, see our article here. Amongst other things, the factsheet confirms that there will be transitional arrangements to minimise the impact of the changes on Skilled Workers already in the route by the time the Immigration Rules are changed in April 2024, and that a more detailed policy statement will be forthcoming.

The below table summarises the confirmed changes to the Skilled Worker route during 2024.

The impact of such a substantial increase to the general salary threshold is that only very senior members of many medium-skilled occupations (at Levels 3 to 5 of the Regulated Qualifications Framework) will continue to qualify, and some occupations will be priced out. This is because the new threshold corresponds to the median income for skilled roles in aggregate and occupation-based going rates will also be recalibrated to align to the median salary level for the occupation rather than the lowest quartile.

The new general salary threshold may also be above the upper end of the range for some skilled occupations, including in construction, retail, hospitality, food production and food processing. Unless these occupations are recommended for addition to the new Immigration Salary List, using the immigration system for them will be uneconomical for employers.

We would suggest sponsors consider taking the following actions:

• Review the Skilled Worker sponsorship pipeline for new hires with a view to making applications ahead of the changes taking effect, including requesting a Certificate of Sponsorship allocation increase;
• Consider bringing forward sponsorship of Students, Graduates and other existing employees with limited immigration permission where appropriate and feasible (including considering whether to apply for entry clearance for Students who are ineligible to switch in-country);
• Consider whether and to switch Senior or Specialist Workers/Tier 2 (Intra-Company Transfer) permission holders into the Skilled Worker route;
• Analyse the median salaries for the occupations Skilled Workers are commonly sponsored for, to better understand what roles and what level of seniority may still be eligible for sponsorship within the business following the implementation of the changes (see the Excel spreadsheet below figure 10 here as a starting point, however note that this is based on the Standard Occupational Classification 2020 whereas Skilled Worker route occupations are currently based on the 2010 version so may not completely align for all occupations);
• Analyse whether the business has capacity and willingness to increase salaries (ensuring to avoid discriminating against non-sponsored workers in the same occupation) where this would be required to continue to sponsor Skilled Workers;
• Monitor for further information on how the Rules for new entrants will work, with a view to understanding the potential impact on upcoming graduate programme participants; and
• Monitor for further information on transitional arrangements with a view to deciding whether to make any early extension applications.

In some cases, taking prompt action may also mean that the Immigration Health Surcharge increase can be avoided. See further information on this in the next section below.

Immigration Health Surcharge increase

The Immigration Health Surcharge will increase in the near future. The draft order for this allows for changes to come into effect from the earlier of 16 January 2024 or 21 days after it is made. The order is currently still in the process of being approved by Parliament so will not be in effect until at least February, giving applicants a small further window of time to make applications ahead of the rise. Whether to apply before the rise will depend on a range of factors including the following:

• Whether the applicant is exempt from paying the charge (in which case there is no need to apply earlier);
• The availability of a certificate of sponsorship (for sponsored work routes);
• The start date of a sponsored role, which must not be more than three months after the date of application; and
• How the timing of an application may impact on the expiry date of the permission granted, and therefore whether the holder will have sufficient permission to apply for settlement if desired, or will have to apply for a further extension – in this case a calculation would need to be made to determine the likely timelines for application processing and what is the least costly process.
  
  

The new yearly rate depends on the immigration category the applicant is applying under, as follows:

• For students, Student, Student dependant, Youth Mobility scheme and applications made by children under 18 on the date of application the fees will jump from £470 to £776.
• For all other relevant immigration categories, including Skilled Workers, the fees will jump from £624 to £1,035.

Since immigration application fees were increased in October last year, the overall application cost for a five-year Skilled Worker visa, without dependants, is currently in the region of £10,000. The cost will climb to almost £12,000 when the Immigration Health Surcharge increase becomes effective.

The cumulative effect of immigration-related costs increases is substantial and may lead more sponsors to review how the cost burden is distributed between the sponsor and sponsored workers. Sponsors should exercise caution if considering passing any immigration-related costs on to a sponsored worker. It is not permitted to pass on the Immigration Skills Charge under any circumstances. We would suggest that advice is sought on the recoupment of other immigration-related costs, either on a repayment basis or under a clawback agreement, to ensure this does not breach sponsorship requirements or employment law.

New IT services for sponsors

The Home Office is in the process of replacing the Sponsor Management System (SMS) with new services for sponsors. Some of these were due to roll out as part of the Home Office’s sponsorship roadmap during 2023 but have been delayed. No current timeline for implementation is available, however the services scheduled to be introduced are as follows:

• ‘Sponsor a Visa’ – this will allow visa applicants to access a partly-populated online application form once the details of their role have been approved;
• ‘Manage a Licence’ – sponsors will be able to use this to carry out their sponsor licence reporting functions on a new platform that will replace the SMS; and
• ‘Become a sponsor’ – this will provide a new application process for intending sponsors.

Reforms to EU Settlement Scheme processing

During 2023, the Home Office implemented an automatic extension process for EU Settlement Scheme (EUSS) pre-settled status holders. This was necessary due to a successful legal challenge. The extended permission is for two years and should be processed within one or two months of the existing pre-settled status expiry date. The Home Office recommends that employers wait to within a month of the expiry to carry out an online right to work check to confirm the extended permission.

It is not currently clear if the Home Office intends to cancel or curtail the permission of those who have broken the continuity of their residence, as the Employer’s guide to right to work checks states an extension will not be granted if the person no longer meets the requirements for pre-settled status. Clarification from the Home Office is anticipated soon.

During 2024, the government is intending to implement automated decision making for those with pre-settled status to gain settled status if they are eligible. Further details are awaited on the date this will go live and what the process will be.

We also anticipate litigation to emerge this year relating to the recent stricter treatment of late applications to the scheme. Since 9 August 2023, having limited English language skills or being unaware of the requirement to apply to the EUSS by the relevant deadline will not be considered ‘reasonable grounds’ for applying late. Many applicants have had their applications invalidated and it would seem likely that some will seek to challenge the decision via judicial review. If a judicial review is successful, this may prompt a relaxation of the current policy.

Restrictions on family-related immigration routes

The Government’s plan to reduce net migration includes measures geared towards restricting family-related immigration routes. The prohibition on accompanying dependants of carers and senior carers has already been mentioned, but new restrictions will also apply to partners under Appendix FM and Student dependants.

Substantial increase to the minimum income requirement for the five-year partner route

The minimum income requirement for sponsoring a partner under the five-year settlement route will rise from £18,600 to £29,000 in Spring 2024. The additional income requirement for accompanying children will be scrapped.

Incremental minimum income requirement rises to £34,500 and then £38,700 are planned, however there is currently no specific information on when these are due to occur, other than a response to a parliamentary petition which confirms plans for the £38,700 threshold to be introduced in ‘early 2025’. Whether they will occur at all may not be known until after the result of the next general election.

The Home Office has confirmed that individuals who already have permission on the five-year partner route or who apply as a fiancé(e) or partner before the income threshold is raised will have their applications for extension or settlement assessed against the current income requirements. Further details of transitional arrangements should be made available soon.

Fewer international students can bring dependants if their course starts in 2024

For students on postgraduate courses starting from 1 January 2024 (and subject to exceptions for government-sponsored Students and children born in the UK), dependants will only be allowed if the Student is on a PhD or other doctoral course, or is a post-graduate course confirmed by the sponsor as being a research-based higher degree.

This has the potential to reduce the talent pool for employers who otherwise would be able to recruit dependants of student visa holders. Student dependants can generally work in the UK without restrictions, including self-employment and voluntary work. For more information, see our coverage of this development here.

Reforms to other immigration routes

In addition to amendments to work and family-related routes, the following ad hoc reforms to other immigration routes are due to take effect this year.

Further activities permitted for visitors

The activities allowed for visitors will be expanded. Visa nationals, who apply for a visa in advance of travel, can benefit from the new provisions if they apply on or after 31 January 2024. Non-visa nationals can benefit when they enter the UK as a visitor on or after this date.

Some headline points of interest to employers are that:

• Business travellers engaging in intra-corporate activities such as advising and consulting will be allowed to do so directly with clients;
• Visitors will be allowed to work remotely on activities related to their overseas employment, provided this is not the primary purpose of their visit – currently the policy on remote working is only set out in guidance; and
• Experts invited by a UK-based organisation for a permitted paid engagement will be able to visit for up to six months instead of one. This is beneficial to individuals in particular fields such as academics, professional sportspersons, professional artists, entertainers or musicians.

For further details, see our article here.

Employers can still find themselves on the wrong end of a sanction for employing an illegal worker, simply by misunderstanding what is allowed and what is prohibited while in the UK as a visitor. It is therefore important to know what the changes are and fully understand how they impact employees coming to the UK for business visits.

Expansion of Youth Mobility Scheme

The Youth Mobility Scheme (YMS) allowsyoung adults (18+) from participating countries to experience life in the UK for a limited period. The countries currently participating are Australia, Canada, Iceland, India, Japan, New Zealand, Taiwan, South Korea, Hong Kong and Monaco.

For applications made from 31 January 2024:

• Andorra and Uruguay will participate in the scheme; and
• The age limit for Australian and Canadian nationals will increase from 30 to 35 and the maximum length of time they can stay on the route will increase from two years to three years. These changes are similar to ones brought in for New Zealanders from 29 June 2023.

Employers can take advantage of the expansion of the scheme as individuals on a YMS visa have mainly unrestricted work conditions, except that they cannot work as a professional sportsperson or undertake certain types of self-employment. They do not require visa sponsorship, unlike Skilled Workers.

During 2024 and beyond, YMS provisions may be negotiated with EEA countries on a bilateral basis, to further help address skills shortages and encourage cultural exchange. It is thought this can benefit hospitality, retail and construction industries. We will continue to keep a close eye on this development.

Review of Graduate route

The Migration Advisory Committee (MAC) will be commissioned in January 2024 to review the Graduate route. When the factsheet was originally published, it stated that the MAC’s report would be due in ‘late 2024’. This wording was removed on 5 January 2024, however a timeline should be made available when the commission itself is published. The Home Office will consider the MAC’s findings once the report is released, with reforms to the route expected shortly afterwards.

Review of immigration routes for the agricultural sector

The Seasonal Worker route has proven to be controversial, with agricultural sector employers calling for additional capacity to recruit workers from abroad to meet skills shortages, in part exacerbated by the war in Ukraine, set against a series of media reports of worker exploitation.

MAC launched an inquiry into the scheme in 2023, which is currently in progress. It is anticipated that reforms to the Seasonal Worker route and/or the Skilled Worker route may flow from the review of the Seasonal Worker route and other government initiatives aimed at supporting the agricultural sector.

Replacement of physical immigration documents with eVisas

The Home Office intends to phase out biometric residence permits and other physical immigration documents by the end of 2024. Holders of these documents will be required to register a UKVI account so that they can access the eVisa version of their existing permission. They will then be able to use the Home Office’s View and Prove service to demonstrate their status to employers, landlords and any other parties they authorise to verify this.

Details of the registration process are due to be released during the course of this year, but in the meantime, we would suggest that employers consider minimising the impact of this change for individuals requiring a repeat right to work check. This can be done by carrying out an early check using the current online process for individuals who hold limited immigration permission. For further information, see our article here.

Further roll-out of Electronic Travel Authorisations for visitors to the UK

The Electronic Travel Authorisation (ETA) is the Government’s digital permission to travel scheme for non-visa nationals and citizens of countries currently eligible to use the Electronic Visa Waiver scheme. It will apply where these individuals are intending to travel to the UK:

• As a visitor;
• As a creative worker for up to three months; or
• As a person transiting the UK.

British or Irish passport holders, residents of Ireland entering from within the Common Travel Area and individuals already holding a visa or other UK immigration permission are not required to obtain an ETA.

The ETA system went live for citizens of Qatar on 15 November 2023. Citizens of Bahrain, Jordan, Kuwait, Oman, Saudi Arabia and the United Arab Emirates can apply from 1 February 2024 if they are travelling to the UK on or after 22 February 2024. It should be fully rolled out to all non-visa nationals by the end of 2024.

Obtaining an ETA involves an online application, including providing biometric details using the UK ETA app, and payment of £10. Processing can take three working days or longer on occasion. An ETA allows multiple entries and lasts for two years or until the expiry of the holder’s passport if this expires sooner.

Keep in touch with Lewis Silkin for further updates and assistance

We will be monitoring immigration law developments throughout 2024 and will publish further information once it becomes available. You can sign up here to receive our updates.

Through our Immigration Solutions for HR, we can offer training, compliance guides and mock audits of employers’ HR systems to identify any areas of risk, suggest improvements and prepare for a real Home Office sponsorship or right to work audit.

If you have queries on any of the topics raised in this article or need assistance with a sponsor licence or UK immigration application, please get in touch with our Immigration Team.