The scale up route allows qualifying skilled foreign nationals to work in the UK for at least 2 years without significant restrictions. For employers, the route aims to help with faster and easier recruitment of talented overseas nationals, especially once visa-holders have already worked in the UK for at least 6 months for their scale up sponsor.
The following guide on the scale up worker visa looks specifically at the rules around a ‘scale up visa change of employer’ scenario, providing practical advice for visa-holders and employers on what steps must be taken when a scale up worker is starting a new job and leaving a previously sponsored role — as well as the circumstances in which a new application will be needed.
What does a ‘scale up visa change of employer’ scenario mean?
There are a number of benefits associated with the new scale up visa, designed to attract skilled overseas workers to the UK and help ‘build back’ the UK economy post-Brexit. This includes the fact that successful applicants on the scale up route will have a significant degree of flexibility having worked for their UK sponsor for a period of just 6 months. At this stage, the sponsor relationship automatically ends and the sponsor duties fall away, where the visa-holder can remain employed by the sponsor or leave their employment.
For successful scale up visa-holders, their initial grant of leave will be for 2 years where, having completed a period of 6 months working for their scale up sponsor in the job for which they were being sponsored to do, they will then be free to change employers. This means that their immigration status will no longer be tied to their original employer, leaving them free to undertake employment elsewhere. This short period of sponsorship will also make it much easier for other UK businesses to recruit top global talent.
The scale up visa-holder will be able to extend their stay in the UK by making an unsponsored application prior to expiry of their existing visa, regardless of whether they are working for their original employer or a different employer. It is only where a visa-holder changes employer within the first 6 months that they will need to apply to update their visa by making a fresh sponsored application. Importantly, if they continue to work for their UK sponsor but in a different job role, either during or after the first 6 months, no update will be necessary, but an unsponsored application must be made to extend their leave.
What is the difference between an unsponsored & sponsored application?
The scale up route is specifically aimed at attracting talented overseas nationals to the UK who have the skills needed to enable a scale up business to continue growing, and making it easy for these individuals to stay on in the UK if they are looking to stay longer or change employers. As such, the rules are far less restrictive than under other immigration routes.
An unsponsored application to extend an individual’s grant of leave is far easier to make than a sponsored application, where the employer — whether this be the original employer or a different employer — will not be required to assign a fresh certificate of sponsorship. Effectively, this means that the employer does not, at this extension stage, need to be an approved scale up sponsor or even be offering a job on the table of eligible occupations, although the applicant must still meet a minimum earnings requirement.
Ideally, a scale up visa-holder must make an unsponsored application prior to expiry of their existing grant of leave on this route. However, even once their leave expires and they leave the UK, they can still make an unsponsored application for entry clearance provided they last had permission as a scale up worker and that permission expired less than 6 months prior to the date of their application. In cases where an applicant’s leave expires and they are still in the UK, the very limited exceptions for overstayers would need to apply.
What criteria must be met for an unsponsored application?
An existing scale up visa-holder will not need to meet a sponsorship requirement to extend their stay under this route. This is because they may no longer be working for the UK scale up sponsor as named in their original application. However, the applicant must meet a minimum earnings requirement when making an unsponsored application. This is referred to under the rules as the ‘UK earnings in most recent grant of permission’ requirement.
Under the recent UK earnings requirement, the applicant must have been in receipt of monthly PAYE earnings equivalent to at least £33,000 per year during at least 50% of their permission as a scale up worker. This means, for example, that an applicant with a 2-year visa must have had this level of salary during at least 12 months of that grant of leave. Note that the minimum qualifying salary threshold for Scale Up workers changed from £33,000 up to 11 April 2023 to £34,600 from 12 April 2023.
However, the requirement only to meet a minimum level of earnings essentially means that a scale up worker who has met the initial 6-month work requirement with their scale up sponsor can go on to work for another employer, at any skill level, without sponsorship.
How is an unsponsored application made?
An unsponsored application on the scale up route must be made online. Having submitted their online application, the applicant will need to prove their identity and provide proof of their recent pay. The way in which an applicant can do this will depend on their nationality and what type of passport they have. The applicant may be able to use the UK Immigration: ID Check app or they may need to enrol their biometric information at either a UK Visa and Citizenship Application Services service point or an overseas visa application centre.
If the applicant has worked for different employers, they can include earnings from more than one job, but they must have earned a monthly salary equivalent to at least the minimum threshold per year in each job they include, and only include proof of the highest earning salary if they had more than one job at any given time. They cannot count self-employed earnings towards the minimum earnings requirement as this is not paid through PAYE.
How much does an unsponsored application cost?
The fee for an unsponsored application to extend the grant of leave on the scale up route is £715. The applicant will also be liable to pay the Immigration Health Surcharge, currently set at £624 per year, for each additional year of stay.
What will be the conditions of any unsponsored permission?
If an unsponsored application on the scale up route is successful, the applicant will be granted an extension of leave for a further 3 years, during which time they will not be required to work for a scale up sponsor or even remain in the same job that they had at the time of their extension application. In addition to any paid employment, they can also undertake other work, including voluntary work and self-employment.
However, if an unsponsored scale up visa-holder is planning to settle in the UK, they must meet on ongoing minimum earnings requirement from paid employment. Under the settlement rules for the scale up route, the applicant must be in receipt of a salary through PAYE of at least £33,000 per year when they apply, and have had monthly PAYE earnings of £33,000 per year or more during at least 24 months of the 3 years immediately before the application. Note that the minimum qualifying salary threshold for Scale Up workers changed from £33,000 up to 11 April 2023 to £34,600 from 12 April 2023. Having spent a continuous period of 5 years living in the UK, and provided the applicant meets the other requirements for indefinite leave to remain, in addition to the minimum earnings requirement, they can apply to settle in the UK permanently.
If any unsponsored application is rejected, the applicant can request an administrative review of that decision. However, specialist legal advice should always be sought in these circumstances to maximise the prospects of this being resolved in the applicant’s favour.
What criteria must be met for a sponsored application?
In circumstances where the scale up visa-holder is required to apply to update their visa following a change of employer within the first 6 months of their stay in the UK, as with their initial application for their previously sponsored job role on this route, their new job with their new employer must meet all the eligibility requirements. This means that they must have a high-skilled job offer from a qualifying scale up business at the required salary level. As such, the applicant will need a fresh certificate of sponsorship to prove that:
- the job is on the table of eligible occupations
- the job is with an approved UK scale up sponsor
- the job meets the minimum salary requirements
- the applicant is expected to be working in that job for at least 6 months.
To qualify for a new scale up visa following a change of employer within the first 6 months of being in the UK, the applicant will need to be paid whichever is the highest out of the following three options: £33,000 per year; £10.10 per hour; or the ‘going rate’ for the type of work they will be doing. Each occupation code has its own annual going rate.
A list of annual going rates for eligible occupations on the scale up route can be found on the Home Office website. These are based on a 39-hour working week, and will need to be pro-rated for other working patterns, based on the weekly working hours set by the employer.
In any fresh sponsored application, the applicant will also need to meet the financial requirement again, but will not be required to meet the English language requirement. This is because the language requirement has already been met to the required level in the previous sponsored application for a scale up visa, where this will be treated by the Home Office as having been met for the purposes of any fresh sponsored application.
If an applicant has been in the UK for less than 12 months on the date of application, they must have funds of at least £1,270 or, alternatively, their sponsor must confirm on the sponsorship certificate that they will, if necessary, maintain and accommodate the applicant up to the end of the first month of their employment to an amount of at least £1,270.
The applicant will also have to pay another application fee and the healthcare surcharge.
What does a ‘scale up visa change of employer’ mean for dependants?
One of the main benefits of the scale up route for overseas nationals is that it allows the dependants of successful applicants to join or apply to follow them to the UK. As it is also a route to settlement, this will provide the scale up worker and their immediate family with the opportunity to live in the UK indefinitely, provided they all meet the requirements.
However, the dependent spouse, partner or child(ren) of the principal applicant or primary visa-holder must apply separately, each meeting a relationship and financial requirement. This means that, in circumstances where any ‘scale up visa change of employer’ scenario means that the visa-holder is required to apply for a new or extended visa, any dependent partner or children living with them in the UK will need to apply separately to update their own visa(s). They can either apply at the same time as the principal applicant, or at any time before their current visa expires, although their new visa will end on the same date.
When should the Home Office be notified of a change of employer?
If a scale up worker has satisfied the requirement to work in their sponsored job role for at least 6 months, if they subsequently change employer they will not then be required to notify the Home Office or immediately make a fresh application to update their visa.
When their visa is due to expire, a scale up worker will need to apply to extend their visa, but any application at that stage need only be an unsponsored application. It is only if a visa-holder changes employer in the first 6 months must they apply to update their visa.
DavidsonMorris’ business immigration specialists support with all aspects of UK work visa applications, including unsponsored scale up visa applications when changing employer. For expert advice, contact us.
Last updated: 19 March 2023