Regardless of tomorrow's election result, it is highly likely that new restrictions will be imposed on many immigration routes to the UK. The marriage between Sponsor Licences and Skilled Worker visas, which has evolved into a fundamental tool for many UK businesses, will undergo major changes and make it significantly more difficult to hire migrant workers.
However, there is still time for companies to secure their future workforce under Transitional Provisions. Such provisions ensure a smooth transition when new 'Statements of Change' to the Immigration Rules are introduced, protecting the rights of individuals and providing stability.
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"Someone's sitting in the shade today because someone planted a tree a long time ago". The words of Warren Buffet are very relevant in this case. If you think you can benefit from the incorporation of international talent into your workforce, and you find the current Immigration Rules suitable for your business model and plans, you must act quickly so you can guarantee that these Rules (or at least the vast majority of them) will continue to apply to your business in the future.
What do Transitional Provisions do?
In respect to the Immigration Rules, Transitional Provisions allow for the transition from old to new legal regulations. These are designed to manage the implications of changing laws and to prevent disruption for individuals who are affected by these changes. In many cases, they are crucial for ensuring that those who have made plans or taken actions under previous regulations are not unfairly disadvantaged when new rules come into effect.
What is the power of Transitional Provisions?
- Legal Certainty: Transitional Provisions provide legal certainty by clarifying how existing rights and obligations are affected by new laws, and in many cases, guarantee that your or your employees' immigration status and conditions will be respected and legally binding based on the rules in place when the relevant visa or licence was obtained.
- Protection of Rights: People or businesses who have made life-changing decisions based on existing rules (such as applying for visas, investing in property, expanding their business into a new market, or starting families) rely on the stability of these rules. Transitional Provisions protect these individuals by ensuring that they will not be subject to retroactive changes that could adversely affect their status or plans.
Key examples in the Immigration Rules
Several recent examples may be used to highlight the power and necessity of Transitional Provisions in the Immigration Rules:
- Changes to the Skilled Worker and Partner routes: More recently, on 14 March 2024, the government introduced drastic changes to the income thresholds in the Skilled Worker and Partner Routes (under Appendix FM). Previously, the minimum general salary was increased from £26,200 to £38,700, and the 'going rates' (individual thresholds depending on the job and duties) were increased by 80% or more in some cases, making it extremely difficult for many small businesses to rely on foreign work. As for family visas, the minimum salary that a British or settled partner must earn to sponsor their foreign partner was increased from £18,600 to £29,000 for new applicants.
- Brexit and the EU Settlement Scheme: One of the most significant recent examples is the UK's withdrawal from the European Union. The introduction of the EU Settlement Scheme was accompanied by Transitional Provisions to protect the rights of EU citizens residing in the UK before Brexit. These Provisions allowed EU citizens to apply for settled or pre-settled status, ensuring their continued right to live and work in the UK, despite the change in immigration rules.
Even today, eight years after the referendum on Brexit and nearly four years after the end of the transitional period in December 2020, EU nationals living in the UK rely on these provisions to maintain the immigration conditions they had before Brexit, which were far more advantageous than the rules that followed.
However, in both cases a set of Transitional Provisions were introduced to safeguard the already acquired rights of those who were in the UK before 14 March 2024. In the case of the Skilled Workers with a salary below the new minimum threshold of £38,700, a new salary list was introduced. This ensured that even when they did not in all cases maintain the exact salary that was previously established, important exceptions and allowances were made so that the new rules would not have a major impact on those who had made plans, sometimes life-changing, on the basis of pre-established rules.
Transitional arrangements for families
With regard to the family route, transitional arrangements were also introduced for those who, before 11 April 2024, already had a family visa within the fiancé(e), proposed civil partner, or five-year partner route. In these cases, the new Rules established that "once a minimum income requirement (MIR) has been met, the same MIR must be met through to settlement on the route, provided the applicant is applying to stay with the same partner. This will also be the case for children seeking to join or accompany a parent. These arrangements provide certainty for those already within the route, or who apply before the increase comes into force."
In other words, if they were in the UK with the same partner before the Rules changed, they will not be expected to meet the new threshold and will be able to remain in the UK under the same circumstances and conditions as before, that is in terms of salary, with a minimum family income of £18,600 instead of the new £29,000 per year.
If you think that you can benefit from a Sponsor Licence to hire foreign workers; or you have a brilliant business idea you want to develop in the UK and you are pondering whether to use the innovator-founder visa or the Global Talent route; or if you are living overseas and want to move to the UK with your partner; it may be crucial for your personal or business interests to act as soon as possible. Labour's post-election changes are unlikely to make it any easier or cheaper for you, and waiting could lead to significant setbacks or undermine the opportunity entirely.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.