Associate Harry Yu analyses the latest immigration reforms in the UK, exploring the significant changes brought about by the Home Secretary's 5-point plan and the subsequent statement of changes to the Immigration Rules, with a focus on the impact on businesses and the widening of the visitor visa regime.
The Home Secretary announced significant reforms to the UK’s immigration regime on 4 December 2023 with a view to cutting down net migration. This announcement came in the form a 5-point plan, which shook the ground for many businesses and immigration practitioners. The most significant changes for businesses included stopping overseas care workers from bringing dependents, raising the work visa salary threshold to £38,700, and scrapping the shortage occupation list. The date on which these changes would be enacted is yet to be confirmed but is likely to be in spring 2024. Our immigration team at Russell-Cooke published a commentary on the changes to UK immigration law.
Three days after the 5-point plan, on 7 December 2023, the Home Office laid a statement of changes to the Immigration Rules before parliament, the contents of which did not include the 5-point plan. It would appear that these changes have been overshadowed by the impact of the earlier 5-point plan. As such, in this briefing, we provide commentary on how the statement of changes impacts the business immigration field and what to expect in the coming months.
The most significant changes for businesses will be the widening of the visitor visa regime.
From 31 January 2024 onwards, visitors coming to the UK to carry out permitted intra-corporate activities can now carry out client-facing activities, so long as it is incidental to their employment abroad.
What does this actually mean?
Visitors are permitted to visit the UK for a range of different permitted purposes including tourism/leisure, seeing friends and family so long as they are genuine visitors/intend to leave the UK at the end of their visit. Some nationals can directly enter the UK as a visitor, whereas others need to apply for visit visas in advance of visiting. As a general rule of thumb, working in the UK is strictly prohibited.
However, visitor rules have always incorporated carve-out provisions which allow a certain degree of business activities to be carried out in the UK. These carve-out provisions are carefully drafted so as to set a fine boundary between what is permitted and what counts as work (i.e. prohibited). Crossing this boundary carries serious consequences for the visitor and for the UK business.
One of these carve-out provisions is intra-corporate activities, which envisages a situation where an employee of an overseas based company is invited to the UK on a specific internal project, and is asked to advise/consult, trouble-shoot, providing training, or share skills and knowledge with UK employees of the same corporate group. The current caveat is that ‘no work is carried out directly with clients’. The Home Office would generally expect that such activities are of a short duration and the visitor will mainly be based at their own company’s offices as opposed to a client’s offices.
This is useful for executives of multi-national companies who are involved in cross-border projects. The current ban on carrying out work directly with clients may put someone in an impossible position; for example if they are the subject matter expert and they’re invited to the UK for the purposes of solving a particular problem on a project, they simply cannot do so without speaking with the client who has direct knowledge of the problem at hand.
From 31 January 2024, the same executive can advise or consult, trouble-shoot, provide training, or share skills and knowledge directly with clients. It is highlighted that this can only happen in an intra-company setting. The client-facing activity must be incidental to that executive’s employment abroad and these activities are required for a service or project delivered by the UK branch as opposed to the overseas company.
From 31 January 2024, visitors can carry out remote working in the UK, but that must not be the primary purpose of their visit.
What does this actually mean?
The Home Office recognises that in this day and age, remote working is prevalent and those on holiday in the UK may have to answer a few work emails during their time off. The crucial caveat is that the ‘remote working’ must be relating to employment overseas. The obvious question then becomes: what about those who are self-employed overseas? How many times does one need to visit Buckingham Palace in order for remote working to not be the main purpose of the visit?
Currently more than 25 countries globally have launched programs to attract digital nomads. Perhaps if and when net migration falls to the wayside in UK political discourse, the Home Office may seek to either launch its own digital nomad program or seek to include it in the existing visitor rules. For now, unfortunately, the current position is that if you are a digital nomad looking to take up residency in the UK, you need to explore alternative UK visa routes.
Permitted Paid Engagement (PPE) visitors
From 31 January 2024, there will no longer be an independent visitor visa route for PPE visitors. Instead, PPE will be incorporated into the Standard Visitor visa route.
What does this actually mean?
The current visitor visa regime is divided into four categories, namely (1) standard visitors, (2) marriage/civil partnership visitors, (3) transit visitors and (4) PPE visitors. What makes the PPE visitor unique to the other three routes is that it allows the visitor to work in the UK in a limited context for up to one month (i.e. dis-applying the general prohibition on work for visitors). Furthermore, PPE visitors are not subject to the general prohibition on visitors receiving payment from a UK source for activities undertaken in the UK, which means that they can be paid for their services in the UK.
The PPE visitor route however, is limited to only certain individuals, namely experts in their field who intend to come to the UK to carry out a specific PPE activity (e.g. a professor invited by a UK university to give a lecture on their subject area) for up to one month. Experts under the PPE route are limited to a very specific set of people, such as academics, expert lecturers, pilot examiners, qualified lawyers, professional artists, entertainers or musicians, or professional sportspersons.
Under the current rules, depending on the visitor’s nationality, they would either need to apply specifically for a PPE visitor visa (which is usually valid for up to 1 month) or present themselves at the UK border with the required evidence (e.g. an invitation letter from a specified body) to obtain a stamp from a UK Border Force officer (e-gates are not allowed).
Going forward, all visitors can carry out PPE activities subject to the condition that it is arranged before they travel to the UK, declared when applying for entry clearance and evidenced by a formal invitation letter by their host. The PPE activity must also be related to their area of expertise/occupation overseas, and must be completed within 30 days of them entering the UK.
The inclusion of the PPE route under the standard visitor category in many ways makes the visitor regime more complex. There is a large amount of overlap between PPE activities and general permitted activities under the visitor rules. In the absence of a special PPE visa, the lines have been blurred between a PPE visitor versus a standard visitor carrying out permitted activities. The blurred distinction can carry serious consequences for experts who undertake a mixture of permitted activities and PPE activities if their visit lasts for longer than 30 days. This is because if any PPE activity falls outside the 30-day timeframe, then they can potentially become liable for the criminal offence of being an illegal worker.
With the aim of the 5-point plan being to drive down net migration by limiting the scope of long-term work visas, it would appear that the Home Office is widening the scope of the visit visa regime in order to allow UK businesses to still have access to overseas talent (albeit on a temporary/from time-to-time basis). In other words, the Home Office’s position appears to be that the UK is open to the benefits overseas talents can bring, but in no way should they drive up net migration statistics.
The statement of changes has arguably not done enough to achieve that aim. Perhaps a better approach would have been to simplify the definition of PPE under paragraph V13.3 to ‘workers who are highly qualified in their field’ as opposed to being limited to specific experts (i.e. academics, expert lecturers, pilot examiners, lawyers, professional artists, entertainers, musicians, or sportspersons), which would mean that businesses can deploy workers into the UK to achieve certain objectives within a 30-day period. However, the concern for widening this definition is that businesses may abuse the visitor visa route to bring in temporary workers who otherwise would need a work visa.
Additional changes to the visitor route
Other changes made to the visitor route include further concessions for the aviation industry, scientists, researchers, academics, and legal professionals, which this commentary does not explore further.