Skilled Workers

TheLawStudent

General points

This category includes workers whose skills are needed by a UK based employer (as well as intra-company transfers, ministers of religion and sportspeople, which we will not be looking at in this module). We will be focusing in particular on applications made under Appendix Skilled Worker. First, some general points may be made in relation to the worker category.

Until 1 December 2020, there was a Resident Labour Market Test – in other words, an employer wanting to act as a sponsor for the purposes of the IR, they would have to go through to process to show that there was no one settled in the UK who could do the job. This requirement has been dropped, though there are still restrictions on who a sponsor can employ.

The rules for the Skilled Worker route are in Appendix Skilled Worker are split into validity, suitability, eligibility, maintenance and criminal record requirements.

Validity requirements (SW 1)

To apply under Appendix Skilled Worker, an applicant must:

  • Pay the application fee.
  • Pay the Immigration Health Surcharge.
  • Provide biometrics.
  • Provide a passport or satisfactory equivalent document.
  • Have a Certificate of Sponsorship that was issued to them by their sponsor no more than 3 months before the date of application.
  • Be aged 18 or over on the date of application.

The applicant may apply either from outside the UK, or within the UK. However, if the applicant is within the UK, they must not be in the UK on any of the following bases:

  1. as a Visitor; or
  2. as a Short-term student; or
  3. as a Parent of a Child Student; or
  4. as a Seasonal Worker; or
  5. as a Domestic Worker in a Private Household; or
  6. outside the Immigration Rules.

Suitability requirements (SW 2)

The applicant must not fall for refusal under Part 9 (general grounds for refusal).

If the applicant is applying for permission to stay (that is, they are already in the UK), then they must not be in breach of immigration laws or on immigration bail. (Note also that there are some forms of status which prohibit a person applying to switch to Skilled Worker status – see SW 1 above.)

Eligibility requirements for a Skilled Worker

Entry requirements for a Skilled Worker (SW 3)

If a person is applying from outside the UK, then (unsurprisingly) they must apply for and obtain entry clearance before they arrive in the UK.

If they are from a country designated by the SSHD as being one where there is a risk of tuberculosis (listed in Appendix T), then they must also provide a valid medical certificate confirming that they are free of active pulmonary tuberculosis.

Mandatory points requirements

SW 4.1 states that an applicant must gain 50 mandatory points, comprising:

  • A Certificate of Sponsorship (20 points). SW 5 sets out specific requirements for this to be valid, including:
    • The employer being an approved sponsor;
    • Confirmation of details of the applicant, the job, and the salary;
    • Confirmation of payment of the Immigration Skills Charge.
  • A job at the appropriate skill level (20 points). SW 6 sets out specific requirements in relation to this, in particular:
    • The job must fall within a category described in Appendix Skilled Occupations.
      • Appendix Skilled Occupations is essentially a list of the types of job the UKVI deems appropriate;
      • Each job is given a Standard Occupational Classification – a code number, which must be used in the application;
      • Each job is also assigned a going rate, which is the UKVI’s view of what constitutes an appropriate salary;
    • The employment must be genuine; and
    • The decision maker must be satisfied that the applicant is suitably qualified and experienced for the job.
  • Sufficient knowledge of English language (10 points). Additional detail in relation to this requirement is set out in Appendix English Language. Essentially the applicant must either
    • pass a test to level B1 (intermediate) in the Common European Framework of Reference for Languages; or
    • hold the nationality of a specified majority English-speaking country; or
    • have a degree that was taught in English.

Tradeable points requirements

SW 4.2 states that in addition to the 50 mandatory points, the applicant must gain 20 tradeable points. The term ‘tradeable’ essentially means that the 20 points can be gained in a number of ways:

  • The applicant’s salary equals or exceeds both £25,600 and the going rate (SW 8).
  • The applicant has a PhD in a subject relevant to the job (the sponsor must provide a ‘credible explanation’ as to how it is relevant) and their salary equals or exceeds both £23,040 and 90% of the going rate (SW 9).
  • The applicant has a PhD in STEM subject relevant to the job and the applicant’s salary equals or exceeds both £20,480 and 80% of the going rate (SW 10).
  • The job is in a shortage occupation (as defined in Appendix Shortage Occupation List) and the applicant’s salary equals or exceeds both £20,480 per year and 80% of the going rate (SW 11).
  • The applicant is a new entrant to the labour market and their salary equals or exceeds both £20,480 per year and 70% of the going rate (SW 12).
  • The job is in a listed health or education occupation (within Appendix Shortage Occupation List) and the applicant’s salary equals or exceeds both £20,480 per year and the going rate (SW 13).

Additional details of how salary is determined are set out at SW 14.

Maintenance (SW 15)

Apart from the salary requirement, there is a general requirement in relation to applicants’ finances at the time of application.

The applicant must have held funds equalling £1,270 for 28 days as at the date of application.

However, if the applicant has held permission to stay in the UK for more than 12 months (if they are extending their permission to stay as a skilled worker, or if they are switching from another status within the UK) then they do not have to meet this requirement.

Criminal records (SW 16)

Depending on the job being applied for, the applicant may need to complete a criminal records check. A complete list of which jobs will require a criminal records check is set out at SW 16.

This needs to be completed, before application, for each country where the applicant has spent more than 12 months in the past ten years.

Rights of appeal

There is no right of appeal if an application as a Skilled Worker is refused.

Instead, there is a right to seek Administrative Review (SW 17), which is essentially a review of the decision by another UKVI decision maker. Administrative Review is not covered in detail in this module.

Extensions of leave

There is now no limit on the amount of time a Skilled Worker visa holder can spend in the UK. Previously, a Tier 2 (General) worker (the equivalent status before 1 December 2020) was only able to spend a maximum of six years in the UK. Now, applicants can be granted permission up to a maximum of five years at a time, with unlimited extensions.

To apply for Indefinite Leave to Remain in the UK, the applicant will still be required to be employed by the sponsor for the ‘foreseeable future’. The applicant must be earning at least £25,600, and the going rate for the job, when they come to apply for ILR. If they are working in a shortage occupation they will need to be paid above £20,480 and the going rate for the job.

Dependants (SW 29-46)

A Skilled Worker may be accompanied by dependants (who are defined as spouses, civil partners, unmarried or same sex partners (who have lived with the Skilled Worker for at least two years), or children under 18 who are financially dependant on the Skilled Worker).

They will have to apply for entry clearance from outside the UK before traveling to the UK and any permission to stay will be for the same length of time as the Skilled Worker. They should make any applications for extension or settlement at the same time as the Skilled Worker.

Intra-company transfer

The intra-company transfer category is for employees of multi-national companies who are being transferred to a UK based branch of the same organisation for training purposes or to fill a specific vacancy that cannot be filled by a British worker. There are four sub-categories of intra-company transfer: short term staff, long term staff, graduate trainee, and skills transfer.