Immigration law has always been complicated. In 2019, one judge went as far as to say that the Rules had achieved a degree of complexity which even the Byzantine Emperors would have envied. Over the years, the Home Office has attempted to simplify the Immigration Rules on several occasions, but with the recent changes to salary levels for skilled workers employers are finding them increasingly difficult to navigate.
The most obvious example, and one which we come across on a daily basis, is the salary level required for Skilled Workers. The general rule has always been that the worker must be paid above the general threshold for the visa or the going rate for the role, whichever is higher, in order to avoid those on work visas being paid less than a UK employee would be in the same role. However, as a result of several changes to the Immigration Rules, the general threshold and going rate are not always easy to identify, as they can vary depending on individual circumstances.
There are now 11 separate tables of job categories and salary levels and in many cases a job appears in more than one table and has more than one possible salary in the table. Added to that is the fact that some jobs or applicants qualify for lower general thresholds, and it is easy to understand why employers find managing this difficult.
To help with this, below is a summary of how to navigate the Rules and avoid applying the wrong salary threshold, which can result in a visa refusal.
People applying for their first Skilled Worker visa
Most people applying for their first Skilled Worker visa will start by looking at Table 1 of Appendix Skilled Occupations. This table covers most jobs which meet the skill level required to qualify for a Skilled Worker visa. For each job, there are different rates listed:
- Option A: the normal going rate for the job, based on a 37.5 hour working week.
- Option B: a rate that is 90% of the normal going rate, which is suitable for those with a PhD that is relevant to the role. Not all jobs qualify for this rate.
- Option C: a rate that is 80% of the normal going rate, which is suitable for those with a PhD in a STEM subject that is relevant to the role. Again, not all jobs qualify for this rate.
- Option E: a rate that is set at 70% of the normal going rate, which is available to those who are new entrants. A new entrant is someone who is under the age of 26, working towards a UK professional qualification, switching from a student visa having completed their course or moving from a Graduate visa. There are limits on how long someone can qualify as a new entrant, and an employer needs to be aware of these.
There is also an Option D, which is the same going rate as Option A but qualifies for a different general threshold because the job is listed on the Immigration Salary List.
Where a job does not appear in Table 1, an employer needs to check the Temporary Shortage List. This is a list of jobs in a different section of the Immigration Rules which are considered to be medium skilled and important to the UK growth plans. These jobs are still suitable for Skilled Worker visas and appear in Table 1a, although not all jobs in Table 1a qualify as Temporary Shortage Jobs.
Finally, a job may appear in neither Table 1 nor Table 1a but still be suitable for sponsorship. This applies to roles where the salary is based on national pay scales, and these can be found in Table 3, Table 3a or Table 4.
People extending their visa
When someone comes to extend their visa, identifying the correct rate can still be a difficult task as it depends on the date their first Certificate of Sponsorship was assigned, which will not be the same as their visa start date.
Where someone was assigned a Certificate of Sponsorship before 4 April 2024, they use the rates in Table 2 or Table 2a depending on the skill level of the role.
Where someone was assigned their first Certificate of Sponsorship after 4 April 2024, they continue to use Table 1 or Table 1a. However, as the rates have increased since 2024, they may find that they no longer meet the salary threshold.
How should employers handle this?
The key for an employer considering extending a visa is to start the process early. This allows time to identify the correct salary threshold and, if necessary, hold internal discussions about increasing the salary to meet the new threshold.
MFMac can help employers navigate the complexities of the salary rules as well as the other complexities in the Immigration Rules, so please do not hesitate to get in touch with our team.
