Here you can watch the recording of the webinar with the Home Office where we discussed the new points-based immigration system, what this means for the overseas recruitment, and the latest resources available and information on the EU settlement scheme.
The virtual session was chaired by Adele Bunch, programme lead at NHS Employers, supported by Vickie Hage, senior programme officer. They were joined by Dan Petriello, David Ramsbotham, Steve Cork and Carrie Goulding from the Home Office.
The presentations were followed by a question and answer session, which have been formatted into an FAQs available in the links below.
CoS – Certificate of Sponsorship
DCos – Defined Certificate of Sponsorship
IELTS - International English Language Testing System
IHS – Immigration Health Surcharge
ILTR – Indefinite Leave to Remain
MTI Tier 5 – Medical Training Initiative Tier 5 vias route
NARIC - National Recognition Information Centre for the United Kingdom
OET - Occupational English Test
RLMT – Resident labour market test
RTW – Right to work checks
RQF3-5 – Regulated Qualifications Framework 3-5 (in England, A level qualifications and above) that are defined as ‘medium skilled’ occupations for the points-based immigration system
SOC - Standard Occupational Classification
SMS – Sponsorship management system
UCoS – Undefined Certificate of Sponsorship
UKBA - UK Border Agency
1. I would appreciate a bit more detail of defined and undefined CoS.
A defined CoS applies when an applicant is applying from overseas and will need entry clearance, while an undefined CoS applies to sponsoring an applicant who is already in the UK and looking to extend or switch their current visa. This is irrespective if the position is on the Shortage Occupation List.
For example, when an applicant from outside the UK first applies under the new immigration system, they would be assigned a defined CoS as they are coming into the UK. However, if a non-UK national is either applying to switch their visa routes (for example, from a New Entrant to a Health and Care Visa) or is applying to extend their exiting visa, they will be assigned an undefined (or in country) CoS.
Defined CoSs effectively replace the restricted CoSs in the previous system, due to the removal of the cap of the number of people entering the UK. A defined CoS is applied for on a one-to-one basis and are run with daily (working week) instead on monthly panels like the previous restricted CoS. Defined CoS’ are therefore received typically after 24 working hours.
2. Does the defined CoS come from our allocation of undefined CoS?
No, this is separate and is applied for on a one-to-one basis.
3. I have trouble printing CoS’s – is there any advice for this?
You do not have to print a CoS – the reference number should be sent to the applicant for their records. In case you do want to print a CoS, you can try saving them as a PDF and using Internet Explorer / Edge over browsers such as Firefox or Chrome.
4. Is there guidance on how to complete the new CoS for skilled workers on the website as there are new questions which might not be applicable i.e. payee question and PHD question - are these mandatory questions?
Yes, and more information is available from the Home Office website (pdf).
5. What is the agreed turnaround time before assigning a CoS?
Assigning a CoS is up to the employer, and they typically expire after 3 months. In terms applying for a CoS from the Home Office, this typically takes 24 working hours if there are no issues with the application. If you are looking to make an in-year request for additional undefined (in country) CoS this is usually and 18-week service.
6. For all current Tier 2 COS certificates live on our system (for current employees) do we need to add a sponsor note to these to upgrade their current visa to the skilled worker or is this just for new ones now? Do we just specify that the salary is still in line with the new salary rules?
In order to transition an unassigned Tier 2 CoS to a skilled worker CoS, it needs to be upgraded by adding a sponsor note with information of the PAYE scheme the applicant will on. If you logon to the SMS, there is a message board on the front to highlight how this needs to be done.
Only CoS that are being used in a new Skilled Worker application need to be upgraded, existing Tier 2 Visa holders with continuing permission do not need to have their CoS upgraded.
For those using T2 CoS in a skilled application the new salary rules will apply but do not need to be marked on the CoS. If, however, that person is extending their permission to stay in the same job with the same employer then the old rules around allowances when calculating salaries if previously used can continue to be used.
7. So will the DCOS always approve the application for a doctor? If so, is there a way to skip going through the panel if the doctor falls into SOC 2211?
The panel runs on a daily basis so COS should be received the following day. No CoS will automatically pass through the panel. For example, if an error is made in the request such as Salary, this will be picked up for review. The majority of requests will be processed the following working day from submission.
8. If applying for a doctors CoS - do we inform the Home Office that they are eligible for the health and care visa for the new skilled worker route? Do we add this in the sponsor note?
This should not be needed. If a sponsor is already registered, during the casework stage there is a visa form for an applicant to say they are taking advantage of the health and care visa based off the SOC code entered.
9. For staff already in post and changing roles / SOC code do we just have to notify the UKVI via the SMS system as no need for RLMT etc?
Yes, this is still required. As the change in roles are about compliance with the rules not about the RLMT.
1. Can the Home Office reject a pre-settled or settled application? If so, would an NHS employer have to do a CoS for the applicant to continue working?
Yes, the Home Office can reject an application to the EU Settlement Scheme. Although this is not common, the most frequent reason is if they fail to provide sufficient evidence or where serious, exceptional criminality causes are found. If an application is rejected, applicants are encouraged that they revisit their application to explore how it can be successful.
2. If we are recruiting an EU national starting after 1 January 2021 and they have not moved to settled worker shall we still hire them and let them work on the basis of their EU passport?
Following the Withdrawal Agreement, EU nationals here in the UK prior to 11pm on 31 December 2020 have until 30 June 2021 to apply to the EU Settlement Scheme. Until that time, right to work (RTW) checks will not change. The Home Office doesn’t expect or encourage employers to conduct retrospective RTW checks on existing staff or ask if they have applied to the scheme.
Therefore, as long as you conduct all appropriate RTW checks which were in place under freedom of movement (ie have seen their EU passport or ID card) then you can hire them. Care must be taken to not discriminate against those EU nationals that have the right to work in the UK but have not yet applied for settled status before the deadline of 30 June 2021.
3. The share code provides employers the opportunity to check RTW status. Where does it state on the report whether the individual has settled or pre-settled status?
From the grace period (1 January – 30 June 2021) an employee can show you their EUSS, but they are not mandated to do so under the terms of the Withdrawal Agreement and employers cannot discriminate against those who have not yet made an application. When RTW checks change on 1 July 2021 full guidance will be issued, and the status will be viewable. There will be a digital engagement session in early 2021 for both employees and employers.
4. If we can't legally ask existing EU employees for evidence of their status, how can we be assured they're okay to continue to work? Are they able to work in any case until end of June 2021 when the application window closes?
It is the responsibility of the individual to make an application to the EU Settlement Scheme. There is no requirement for the individual to inform you, as their employer, that they have applied or the outcome of their application. Likewise, you should not check that an employee has applied. As an employer there is no legal obligation for you to communicate the EU Settlement Scheme, however, you are encouraged to raise awareness and direct employees to the information and resources available from the Home Office which can be found here.
As long as you have conducted all appropriate RTW checks consistent with freedom of movement, they are able to work. Retrospective RTW checks are also not needed for existing staff after 30 June 2021.
If an employee does not acquire pre or settled status before 30 June 2021, this may impact their ability to access services such as the NHS, right to rent checks etc. You as an employer will not be penalized for employing someone who does not have settled status.
5. How would we know as the employer if an application has been declined if we are not allowed to ask them, are we at risk of employing somebody who does not have the RTW?
All that is required of employers is that all applicable RTW checks were completed at the time when you employed the employee. Additional Home Office material can be found on the gov.uk website.
6. You said that the pre-settled status gives a person five years and then they need to reapply. Should we be checking on this in the future when this expires to find out if they have applied for settled?
Early in the new year, the Home Office will be publishing new RTW guidance that will apply post 1 July 2021.
7. After the June 2020 deadline will there be an expectation for employers to check current EU staff to check they have settled or pre-settled status and are able to work in the UK?
Retrospective RTW checks are also not needed for existing staff after 30 June 2021. More detailed guidance on RTW checks after from July 2021 onward will be released by the Home Office.
8. Can we advise our EU employees to apply for the settlement scheme should they wish to continue their employment and invite them to speak to us in advance?
While there is no statutory duty for employers to promote the scheme, it is good practice for employers to raise awareness of the settlement scheme, signpost employees to existing Home Office guidance and support applications. You can also provide additional resources such as targeted letter and promotion campaigns, training for your HR staff etc.
However, there is no obligation for the employee to notify you of their status, nor should you ask for them to prove their status.
9. If an EU national was living in the UK then left in the UK in 2019 but we will be employing them in Feb 2021 are the able to come under EU settlement?
This will only be the case if they applied under the EUSS when they were in the UK. If they have been successful in their application before they left in 2019, then they would be entitled to settlement. If they did not apply to the scheme before they left, they would need to apply to the new points-based immigration system and can contact the Resolution Centre for guidance if required.
10. You mention that time out of the country is allowed, is there a maximum amount of time?
Before acquiring settled status and ILTR, applicants must be in the UK for six months out of every 12-month period. After this is acquired, they can spend up to five years out of the UK before they lose that status.
11. How can we prove that an applicant has been in the UK before, apart from using the NI method? How can we check this against the EU Settlement scheme?
National insurance is just one type of evidence applicants can supply. Other forms of acceptable evidence include: records of study or bank accounts in the UK, mobile phone bills, registration for Council Tax etc.
12. What is the document issued for the EU settled status? Is it a letter or ID card?
There is no physical document issued to prove someone has settled status. They are emailed a unique digital share code which is connected to their current passport.
For example, when an EU national is applying for a new position after July 2021, they can give their future employer their EUSS reference number which then can be examined under a RTW check. NHS Employers has a dedicated page on the EU Settlement Scheme, which can be found on our website.
13. I'm going to Presume the Right to Work checklist will be updated from 01JAN2021?
From January – 30 June 2021, the RTW for EEA citizens can be checked in the same way it is now. New guidance from the Home Office and with assistance from NHS Employers will be released early in 2021 that will highlight new RTW checks applicable from 1 July 2021.
The NHS Employers right to work check standard will be updated to reflect the requirements under the new immigration system and published on 4 Jan.
14. Can you provide contact details for the settlement resolution centre?
0300 123 7379 (Monday-Friday, 8am to 8pm or Saturday and Sunday, 9:30am to 4:30pm).
15. Will there be a grace period then if staff have not applied by 31 July 2021 to allow them to carry on working if we cannot ask them before?
Employers cannot ask staff if they have applied for settled status nor conduct retrospective RTW checks. All employers need to ensure is that all applicable RTW checks at the time were conducted. The Home Office will continue to accept late applications for genuine reasons for missing the application deadline, however, individuals are encouraged to apply as soon as possible. If employees ask employers for information, they can then be signposted to information and resources from the Home Office.
16. If an applicant has pre-settled or settled status. Are family members eligible for a dependent Visa?
Under the Withdrawal Agreement there is indefinite rights to family reunion, meaning certain family members can join their family in the UK and apply to the EUSS. However, this does depend on who the dependant is and the relationship.
1. We have a lot of EU staff employed as health care assistants or even on the nurse bank and they won’t earn enough to qualify for a COS - does this mean going forward we won't be able to employ any of these staff?
If staff are here now, employers should encourage and signpost them to apply to the EU Settlement Scheme to ensure their right to continue to live and work in the UK.
For future recruitment, healthcare assistants do meet the RQF 3 skills requirement. Therefore as long as the salary requirement does meet the £20,480 and meets the national Agenda for Change pay scale, then they would also meet the salary requirement. More information can be found on our Skilled Worker route page.
2. For lower skilled posts for applicants who would not have RQF 3, would these individuals need to apply through limited leave to remain and not the skilled worker route?
There is no bespoke route for workers below RQF3 and they will not qualify for the skilled worker route. There are a range of other visas that they may be able to apply for depending on their situation (ie spousal) that may give them the RTW.
3. If an EU national arrives in the UK after 1st January 2021 and starts working, would they need to be sponsored by the employer via the new system?
Yes, and they cannot start working without being sponsored and having a CoS. However, if an EU national does not tell you when they arrived in the UK but do have a valid passport or ID card, employers have a statutory duty to employ them under the terms of the Withdrawal Agreement, even if post-June 2021 they end up working illegally. In this situation, the employer will not be subject to any enforcement action, but you may lose any investment in terms of education and training.
4. Is there a helpline I can access for advice?
The UKBA helpline for employer is 03001 235434 and can also be contacted at UKVINHSTeam@homeoffice.gov.uk.
5. How do they demonstrate English language?
This can be done by a variety of means depending on the individual’s circumstances including using a secure English language provider such as IELTS or OET, whether the individual is from a predominantly English-speaking county, undertook a degree overseas that was taught in English they can be validated by The National Recognition Information Centre (NARIC), undertook a degree in the UK taught in English, or can already prove they meet the requirements.
6. Could you please elaborate your point on EU nationals not having to sit OSCE etc because of mutual recognition, noting this makes process cheaper.?
The Mutual Recognition of Professional Qualification Directive will continue until 31 December 2020.
For a maximum period of two years from 01 January 2021, transitional arrangements will apply. UK healthcare professional regulators will continue to recognise EEA qualifications listed in the directive as evidence of skills, knowledge and experience regardless of the applicant’s country of origin (under transitional arrangements it is the place of qualification that is considered, not the nationality of the applicant).
Different arrangements apply for Swiss nationals, who benefit from a four-year grace period from 01 January 2021 during which they will be treated in the same way as pre-31/12/20 EEA applicants based on their nationality, not their place of qualification.
Professional regulatory bodies are working with the Department of Health and Social Care to review registration arrangements for applications from holders of EEA and Swiss qualifications from January 2023 onwards, or earlier if agreed. Until new arrangements are in place, professional qualifications will continue to be recognised under the transitional arrangements.
This means individuals during this time period will not have to sit the computer based test or the Observed Structured Clinical Exam, costs which are often met by employers as part of overseas recruitment.
7. If the visa application is not successful does the employer get a refund of the Immigration Health Surcharge (IHS) and cost of the CoS certificate?
There will be a discount of the IHS as this is based on time actually worked, but the cost of the CoS will not be refunded. This is designed to make sure sponsors do not assign CoS speculatively in order to game the system.
8. Please could you confirm the definition of new entrant?
The definition of a new entrant has been expanded and now includes those that are under 26 years of age (on the day of application), those that have come from previous study routes, and a number of post-doctoral roles and those that are in the process of qualifying. This link to find out more is on the gov.uk website. This also now applies for a four-year period, as opposed to a three year period.
9. Is there still a maximum number of years that we can sponsor for and does the candidate still have the option to apply for Indefinite Leave to Remain (ILTR)?
The Home Office has removed the maximum time limit of sponsorship of six years. Therefore, employers can sponsor and employee indefinitely. The salary threshold for ILTR has been reduced from £35,000 and aligned this salary thresholds to published pay scales, the general salary threshold, or the going rate for the job whichever is higher.
10. Will MTI Tier 5 now be the graduate route in future. Is this visa not trust specific to allow work between different trusts?
The Tier 5 (Temporary Worker - Government Authorised Exchange) route is staying the same for now, although these schemes will be reviewed in 2021. Therefore, for now the current Tier 5 route will be in addition to the future graduate route to be launch in the summer of 2021.
11. Is there anywhere on NARIC where employers can check the qualifications rather than having to add this into the candidates "to do" list?
NARIC provide a range of services that are available to employers, and you can find out more on its website.
1. If we are suspending the hours - is the salary threshold a cash one or just the rate for the job? Ie for those on zero-hours contracts
Those being sponsored will require a contracted job with hours to ensure the minimum salary so those on zero hours contract won't be able to be sponsored. Those with guaranteed bonus schemes cannot use this against the salary threshold.
2. What if applying for a part time post? Does their gross salary have to be set at the minimum? Or can it be pro rata?
An applicant’s total remuneration package must meet the required salary threshold, which in the case of many health and care workers in £20,480. The going rate however, which is above the base level salary threshold, can be pro-rated as long as the overall package (aka their salary after it has been pro-rated to account for part-time work) meets £20,480. The Home Office has removed the requirement for health and care roles on the Shortage Occupation List to only be full-time employees.
3. Have you removed the 20 hours maximum additional hours a migrant can work over their full-time position? Ie international nurses working on NHS trusts banks?
Supplementary work is allowed the current rules still apply.
Supplementary employment means employment in a job (other than the job for which the person is being sponsored) which appears on the Shortage Occupation Lists in Appendix Shortage Occupation Lists, or in the same profession and at the same professional level as the job for which the person is being sponsored, provided that: (a) the person remains working for the sponsor in the job for which the Certificate of Sponsorship records the person is being sponsored; and (b) the other employment does not exceed 20 hours per week and takes place outside of the hours when the person is contracted to work for the sponsor in the job for which the person is being sponsored.
4. What about employees on dependant visas - can they work as and when zero-hour contracts?
If they have the RTW on their specific visa, then yes.
1. Can you please clarify the minimum salary the applicant must earn to be eligible for the skilled worker route and how connects with Agenda for Change pay rates?
The job offer must meet the applicable minimum salary threshold. This is the higher of either: the general salary threshold at £25,600, or the specific salary requirement for their occupation, known as the going rate.
Applicants will be able to trade characteristics, such as their qualifications, to offset a lower salary to get the required number of points. If the job offer is less than the minimum salary requirement, but no less than £20,480, an applicant may still be eligible if they have:
• a job offer in a specific shortage occupation
• a PhD relevant to the job
• a PhD in a STEM subject relevant to the job.
There is a time limited exception for pre-registration nurses and midwives as the rate on the salary scale is slightly below this.
The majority of NHS roles come under the public service exemption. This means that as long as their salary is at an agreed NHS Agenda for Change 2020-2021 pay scales or as featured in the NHS Employers Pay and Conditions circular 2020, they would meet the salary threshold requirement if this salary is above the lowest salary threshold of £20,480.
2. Will there be a comprehensive list of ‘going rates’?
A list of the going rates can be found on the gov.uk website. Please note we have identified an error under Dentists where the wrong salary scale is linked to. This will be correct in April.
3. In the absence of a RLMT, is a visa then granted purely based on points?
The RLMT was abolished when the new skilled worker route was introduced on 1 December 2020. As such, visas in the new immigration system will be based on if an applicant can acquire the required 70 points needed for a successful application. This is based on a system of fixed and tradable points, more detail is available on the gov.uk website.
Caseworkers may still assess if there is a genuine vacancy in order to deal with exploitation and illegal facilitation. When doing so, a caseworker may request additional information from a sponsor.
A person being sponsored will also still have their suitability assessed based no criminality checks.
1. For staff in post on a current Tier 2 visa am I right in thinking that when we renew, they will need to be changed to skilled worker and the new points system rules will apply?
Yes, they will need to apply through the new skills-based system before their visa is due to expire. There are transitional measures in place to ensure that any Tier 2 visa holder will be no worse off under the new system than they were under Tier 2.
2. Can an applicant with from Tier 4 switch to a skilled worker route?
Yes, and they can now do this in country, without having to return to their home country.
3. In the beginning [of the event] it was said that doctors on a visa do not need to leave the country in order to get a new visa - does that mean a change from T5 to T2 also do not need to leave the country?
Yes, applicants changing from a Tier 5 to a skilled worker / health and care visa will not have to leave the country, and will therefore fall under an undefined (in country) CoS. The applicant who is applying for permission to stay must be in the UK on the date of application and must not have, or have last been granted, permission:
(a) as a visitor; or
(b) as a short-term student; or
(c) as a parent of a child student; or
(d) as a seasonal worker; or
(e) as a domestic worker in a private household; or
(f) outside the Immigration Rules.
4. What happens to the staff we have who don't meet required salary/qualifications level for the worker skilled visa when their current tier 2 visa runs out?
They should all meet the new requirements for skilled workers, as both the salary and skills levels are lower than the previous Tier 2 system (with the exception of some transitional measures for PhD routes). There are transitional measures in place to ensure that any Tier 2 visa holder will be no worse off under the new system than they were under Tier 2. If this is not the case, please get in touch as this is likely to be an oversight by Home Office and should be amended in the rules.
5. If the person is switching from Tier 5 to skilled worker route in the UK - do we use an undefined COS for this?
Yes, and undefined CoS would be appropriate.