Corporate Immigration — United Kingdom, British National Overseas visa

Statement of changes in Immigration rules

The latest statement of changes to the Immigration Rules  was also published on 31 March 2023:

• New sponsor duties and compliance came into force recently under the Home Office’s Workers & Temporary Workers Guidance
• The Innovator Founder visa replaces both the Innovator and the Start-Up visas
• Underused UK Visa Routes

The Skilled Worker visa is an increasingly popular route but can be administratively burdensome, so we have explored here 2 different routes to consider – the Global Talent Visa and the Youth Mobility Scheme.

The UK – Australia Free Trade Agreement – Changes To Visa Rules

The UK’s first post-Brexit trade deal came into force on 31 May 2023. Whilst the key purpose of this agreement is to facilitate trade between the 2 Commonwealth nations, there are implications for UK in-bound migration under the Youth Mobility Scheme and the Global Business Mobility Route.

Latest UK Visa Processing Times

New sponsor duties and compliance came into force recently under the Home Office’s Workers & Temporary Workers Guidance.

 On 31 March 2023, the Home Office updated their Workers and Temporary Workers Guidance in relation to sponsor duties and compliance.

For the purposes of this article, we will focus on the following key changes which came into force on12 April 2023:

• Reporting duties for remote/hybrid working.
• The requirement for sponsors to report worker absences of more than 4 weeks on a reduced salary.
• The requirement to report worker absences for more than 4 weeks under all circumstances.
• Reporting duties for sponsors of “offshore workers.”
• Revocation of UK Expansion Worker and Scale-Up sponsor licences.
• Power to revoke a Government Authorised Exchange (GAE) licence.
• Automated changes which can be made via the SMS.

Reporting duties for remote/hybrid working

Due to changes in working practices in recent years, e.g., remote or hybrid working models; sponsor guidance confirms that sponsor licence holders are required to report any changes to a worker’s employment location.

These include where:

• The worker is, or will be, working at a different site, branch or office of your organisation, or a different client’s site, not previously declared to the Home Office;
• The worker is, or will be, working remotely from home on a permanent or full-time basis (with little or no requirement to physically attend a workplace); and
• The worker has moved, or will be moving, to a hybrid working pattern

“A hybrid working pattern is where the worker will work remotely on a regular and planned basis from their home or another address, such as a work hub space, that is not a client site or an address listed on your licence.”

All changes must be reported via the Sponsor Management Systems (SMS) within 10 working days of the change taking place; however, occasional changes to work locations, e.g., attending at a different site or a different office for the occasional shift/s, do not need to be reported.

Rather confusingly, since the updated guidance was published, the Home Office has indicated that sponsors do not need to confirm on the SMS whether or not workers are working in a hybrid capacity as this is the new norm. Rather, the Home Office has confirmed that, as long as records are maintained on-site, this would be sufficient for the purposes of a future compliance visit. Of course, sponsor guidance still hasn’t been updated to reflect this change, so we’d still encourage updates to the SMS to ensure compliance with current sponsor guidance.

The requirement for sponsors to report worker absences of more than 4 weeks on a reduced salary

In addition to the previous guidance where sponsors were only required to report worker absences of more than 4 weeks without pay the new guidance now requires sponsors to report a worker’s absence of more than 4 weeks on reduced pay.

The requirement to report worker absences for more than 4 weeks under all circumstances

In accordance with the updated guidance, where a worker has been absent for more than 4 weeks in total in any calendar year, sponsors will now be required to report the reason for the absence, even if the absence was caused due to sick leave or parental leave. Prior to the change, there was no duty for sponsors to report absences which fell within compelling or exceptional circumstances.

However, in circumstances where sponsors feel that they shouldn’t terminate a worker’s employment due to compelling or exceptional circumstances, the Home Office can still cancel a worker’s permission if they are not satisfied with the reason/s provided.

Reporting duties for sponsors of offshore workers

From 12 April 2023, sponsors of ‘offshore workers’ will be required to notify the Home Office in relation to the following:

• The date that the worker first arrives in UK waters for the job for which they are being sponsored; and
• the date that the worker leaves UK waters at the end of the job for which they are being sponsored.

Sponsors of offshore workers will be required to notify the Home Office:

• No earlier than the date the worker arrives in or leaves (whichever is relevant) UK waters; and
• no later than 10 working days after the date the worker arrives in or leaves (whichever is relevant).

However, as it is not currently possible for sponsors of offshore workers to report this information through SMS, sponsors will be required to notify the Home Office of the required information by emailing the Offshore worker notification inbox (offshoreworkernotificationsinbox@homeoffice.gov.uk).

Sponsors will be required to provide the following Information:

• The sponsor licence reference number
• The CoS reference number of the offshore worker
• The name, date of birth and nationality of the offshore worker
• The name of the ship or vessel on which the offshore worker will be based
• The date they arrived in, or left, UK waters

There will be no requirement to notify the Home Office if the worker temporarily leaves UK waters (for example, to take a holiday or as part of their employment) during a period of valid permission; provided that the sponsor correctly notifies the Home Office of the worker’s initial arrival and eventual departure dates.

In relation to offshore workers who do not require sponsorship, the offshore worker will be responsible for notifying the Home Office of their dates of arrival and departure from the UK; and the worker must make this notification each time they arrive in and leave UK waters.

Sponsors of offshore workers are advised to keep records of all entries to the UK in line with their sponsorship record-keeping duties. Failure to comply with these duties could result in the sponsor’s licence being revoked.

UK Expansion Worker and Scale-Up licences cannot be downgraded to a B-rating

The Home Office is adopting a firm approach in relation to UK Expansion Worker and Scale-Up Worker sponsors who fail to comply with their sponsor duties. If a sponsor fails to meet sponsor duties, the Home Office will no longer downgrade the sponsor to a B-rating or provide an action plan; instead, the Home Office will consider revoking the sponsor’s licence.

Furthermore, sponsor licences can no longer be held for more than four years in either UK Expansion Worker or Scale-up routes.

Power to revoke a Government Authorised Exchange (GAE) licence

With reference to the updated guidance, the Home Office can revoke the licence of a Government Authorised Exchange (GAE) sponsor if the government department which endorsed the sponsor licence withdraws its endorsement.

Automated changes which can be made via the SMS

From 12 April 2023, SMS requests to replace an Authorising Officer or a Key Contact, and to add new Level 1 users will be fulfilled immediately if the following criteria is met.

• The postcode of the address stated for the new Authorising Officer, Key Contact or Level 1 User match either the postcode of the sponsor’s main organisation address or that of its head office address or, for Key Contacts and Level 1 Users, the postcode of a legal representative organisation that is nominated on the licence;
• the licence must be fully active; and
• the sponsor must be an A-rated sponsor.

The Innovator Founder visa replaces both the Innovator and the Start-Up visas

The Innovator Founder visa is a hybrid of the now defunct Innovator and Start-up Visas. It is now the only route for foreign entrepreneurs to enter the UK to establish a new business. It is also available to those who have significantly contributed to an existing business.

Business Idea

The business venture must be innovative, viable, and scalable. This is assessed as follows:

• The applicant must have a genuine, original business plan that meets new or existing market needs and/or creates a competitive advantage (innovative).
• The applicant’s business plan must be realistic and achievable based on the applicant’s available resources (viable).
• The applicant must have, or be actively developing, the necessary skills, knowledge, experience and market awareness to successfully run the business; and (viable).
• There must be evidence of structured planning and of potential for job creation and growth into national and international markets (scalable).

The applicant’s role in the business must be substantial. They must have either generated or made a significant contribution to the ideas in the business plan, and they must have a day-to-day role in carrying out the plan. It is permissible for an individual to have joined a business after it was registered with Companies House, provided the business had not already commenced trading. However, this necessitates additional scrutiny to show the applicant made a significant contribution to the business plan, and has not simply been added to an existing business for the purpose of facilitating investment. In short, with any application, the applicant must either be the sole founder or an instrumental member of the founding team.

Endorsement

Like its predecessors, to be granted leave under the Innovator Founder route applicants must be endorsed by government-approved endorsing bodies:

“Endorsement is based on the principle that it is you [the endorsing bodies], rather than the Home Office, who are best placed to assess businesses and identify innovative business ideas and talent.”

Whilst ostensibly perceptive from the Home Office, the cynical immigration practitioner may see this policy as another attempt from the Home Office to elude responsibility and accountability. As the actual visa application process is relatively straightforward once endorsement has been secured, it is the endorsing bodies who arguably hold the power. They will decide whether an applicant’s business is innovative, viable, and scalable.

There are three endorsing bodies (not counting the Global Entrepreneurs Programme (GEP), a government programme run by the Department for Business and Trade):

• Innovator International (the trading name of Geminus Innovation)
• Envestors
• UK Endorsement Services (UKES)

The Home Office provide guidance for endorsing bodies to follow when assessing a business for innovation, viability, and scalability, but the exact endorsement process and assessment of each application differ between bodies. Relevant details are set out on each body’s website; all require a detailed business plan, including financial projections, and at least one interview.

An endorsing body’s responsibilities do not end upon an endorsement. Applicants are required to have at least two “checkpoint meetings”, before the 12 and 24-month anniversaries of their grant of permission, to demonstrate to the endorsing body that they are making progress towards their business plan. It is open to the endorsing body to withdraw the endorsement at any time.

Multiple innovator founders can apply for endorsement to be co-directors of the same company, but each applicant must receive individual endorsement.

Organisations which were previously approved endorsing bodies under the Innovator and Start-up routes are still required to hold contact point meetings with individuals they previously endorsed, and to endorse applicants who are:

• Switching from Startup to Innovator Founder.
• Extending Innovator leave (which will become Innovator Founder leave).
• Applying for Settlement.

Visa Application

The application itself is relatively straightforward, with some key changes from the Innovator and Start-up routes which make this route easier than its predecessors:

• There is no longer a minimum funds requirement (previously it was set at £50,000), although the business plan still requires significant investment.
• Applicants will be able to supplement their income by working in other employment as well as for the business they have established, provided that the other employment is sufficiently skilled – RQF level 3 or higher.
• There are now four endorsing bodies for new applications, rather than the previous 65, answering concerns that some of the prior endorsing bodies weren’t fit for purpose.

Nevertheless, the Home Office retain ultimate discretion. Even with a valid endorsement, an application can still be refused if the Home Office deem the business lacks innovation, viability, or scalability, or if they doubt the genuineness of the applicant. It is important that the visa application is properly evidenced; an endorsement should not be seen as an automatic ticket to a visa.

Some FAQs answered:

1. Dependents are eligible to apply.
2. Permission is granted for three years, and there is no limit on the time a person can spend in this route.
3. Settlement is available, although the requirements to meet are fairly onerous.

Underused UK Visa Routes

The Skilled Worker route is becoming a popular choice for migrant workers in the post-Brexit UK now that European citizens are subject to immigration control and require sponsorship unless they are able to apply under other categories such as the EU Settlement Scheme. Sponsorship of migrant workers can be quite administratively burdensome on both employers and sponsored workers, it may therefore be worth looking at alternative work visas, if the worker is eligible under the categories discussed below.

Global Talent Visa

The Global Talent visa is a route for applicants considered leaders in their field or those who have the potential to become leaders. This covers applicants working in:

• Digital technology
• Arts and culture (including film and television)
• Academia and research across disciplines from engineering to medicine

A Freedom of Information request submitted by Latitude Law confirmed that only 2970 Global Talent entry clearance (permission to enter) applications were granted by UK Visas and Immigration between 1 January 2022 and 31 December 2022 and that only 34% of applicants were female. The data does not confirm the reason why women are not submitting as many applications under this route. We would encourage more women to apply if they believe they could be considered a Global Talent endorsement candidate under exceptional talent or exceptional promise.

For those who meet the eligibility criteria to apply, it is an attractive visa route for the following reasons:

• For applicants from majority non-English speaking countries, there is no English language requirement as with other visa categories such as the Skilled Worker route.
• The application fee for stage 1 endorsement applications is £456 and the stage 2 visa application fee is £168, which is substantially less than the visa fees and further charges incurred for most sponsored worker routes. An immigration healthcare surcharge will also be applied for each year of permission to stay in the UK.
• Applicants endorsed as Exceptional Talent are able to apply for settlement in the UK after three years. This may be combined with previous time spent in other points-based work visa categories.
• Applicants who are not able to apply for settlement after three years (those endorsed as Exceptional Promise by Tech Nation or Arts Council England), can still obtain up to five years’ permission to stay in the UK, without having to extend their visa.
• Applicants are not required to demonstrate a sufficient amount of savings at the time of applying to support themselves when they arrive in the UK.
• Applicants can work in self-employed and most employed roles without sponsorship. However, they must have earned income in the UK, during their period of limited permission to stay, in the field in which they were initially endorsed if they intend to apply for settlement or an extension of their permission to stay under this route.

Applications for endorsement as a digital technology candidate are currently being reviewed and endorsed by Tech Nation. In January 2023, Tech Nation announced it would be ceasing operations in its current form from 31 March 2023, following the removal of its core funding from the UK government.  Tech Nation has now confirmed it will continue to issue endorsements in the digital technology subcategory of the Global Talent route.

Youth Mobility Scheme

Applications under the Youth Mobility Visa category are for citizens aged between 18 and 30 (in some cases up to 35 from June 2023) from the following countries:

• Australia
• Canada
• Japan
• Monaco
• New Zealand
• Hong Kong
• Republic of Korea
• Taiwan
• San Marino
• Iceland
• India

Invitation to apply arrangements operate in respect of Japanese, Taiwanese, Hong Kong, Korean and Indian citizens. Applicants can also apply if they’re a British overseas citizen, a British overseas territories citizen or a British national (overseas).

If the visa application is granted, the applicant can stay in the UK for a maximum of two years (three for certain nationalities from June 2023), and leave and return at any point within this period of time. If the applicant turns 31 during their permission to stay in the UK, they can stay for as long as their visa is valid. The applicant is permitted to work and study in the UK, without sponsorship, during their period of permission to stay and they are able to ‘switch’ into other visa categories without being required to leave the UK.

There have been recent changes to the Immigration Rules confirmed for this temporary visa route which will take effect from 29 June 2023. If an application is made before 29 June 2023, it will be decided in accordance with the Immigration Rules in force until 28 June 2023.

The UK’s first post-Brexit trade deal, the UK–Australia Free Trade Agreement (FTA) (The Agreement), came into force on 31 May 2023. Whilst the key purpose of this agreement is to facilitate trade between the two Commonwealth nations, there are some implications for UK-inbound migration. The two areas of impact are:

1. The Youth Mobility Scheme
2. The Global Business Mobility Route

Youth Mobility Scheme

The Youth Mobility Scheme allows young persons of certain nationalities to live, study, and work in the UK for a period of time as a young adult. The scheme currently allows individuals aged between 18-30 to spend up to 2 years in the UK. The UK-Australia FTA extends the eligibility of the visa for Australians aged 18-35, and allows Australian nationals to spend a total of 3 years in the UK. In line with the New Zealand Trade Agreement changes, we expect this will be granted in a 2-year (visa) + 1-year (in-country extension) format.

However, those at the upper end of the new 35-year age limit should temper their enthusiasm. Puzzlingly, the Youth Mobility Scheme changes seem to be one of the only aspects of the Agreement which requires additional time to implement. The Agreement promises to do so within 2 years of the agreement coming into force, so by 31 May 2025 at the latest. We understand that changes to UK Immigration Rules will be implemented later in 2023 – to bring Australians in line with New Zealanders who will benefit from the new age threshold from 29 June 2023.

The Global Business Mobility Scheme

The Global Business Mobility (GBM) Route is a combined category of five temporary sponsored work routes, including:

1. Senior or Specialist Worker
2. Graduate Trainee
3. UK Expansion Worker
4. Service Supplier
5. Secondment Worker

Three GBM Visas have seen minor changes as a result of the UK-Australia FTA.

1. Australians applying under the Senior or Specialist Worker Visa to transfer to a UK branch or subsidiary of their overseas employer are entitled to a temporary stay for a period not exceeding 3 years, with possible extension by discretion. Note that the Immigration Rules allow for a grant of leave of up to 5 years in this category (when the job is expected to last as long), so we must wait to see how this is implemented in practice.
2. Australians applying under the UK Expansion Worker Visa no longer need to demonstrate that they have worked for their overseas employer for 12 months prior to the application to come to the UK to open a branch of a subsidiary of that company.
3. Australians applying under the Service Supplier Visa to complete temporary work assignments will have the same access as EEA nationals; they will be entitled to leave for up to 12 months, rather than the 6-month limit for non-EEA nationals.

The Agreement also promises to deal with applications from Australian businesspersons (the Global Business Mobility Route and Business Visitor Route) “as expeditiously as possible”. Practitioners will be hesitant to rely on such promises from an organisation with a track record of delays like UK Visas and Immigration, but it is useful to have something with which to hold the Home Office accountable should unnecessary delays occur.

The Agreement ends with regard to migration by promising a review of the progress made on mobility agreements two years after the Agreement comes into force, in 2025.

Santa Fe analysis

Should you have any questions, please contact:

Koshi Blavo Barna
UK Head of Immigration
Santa Fe Relocation
London, UK
D: +44 0203 457 3595
E: koshi.blavobarna@staging.santaferelo.com

Robert Day
Group Head of Immigration Operations
Santa Fe Relocation
London, UK
D: +44 7990 021125
E: robert.day@staging.santaferelo.com

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