Intra-Company Transfer review

In September 2020 the government commissioned the Migration Advisory Committee (MAC) to carry out a study of the Intra-Company Transfer (ICT) visa category in order to advise the government on the operation and the effectiveness of the category.

On 23 March the MAC launched its call for evidence, so now is a useful time to take a look at what has prompted the review and what this means for the tech industry.

Background

The ICT category sits alongside the Skilled Worker category as one of the two primary routes for employers who want to hire skilled workers from outside the UK who need a visa. The category is specifically designed to enable businesses to move senior and highly skilled members of staff from overseas offices to the UK for secondments and assignments, and in order to be able to use the ICT category the business must hold a sponsor licence. Historically the ICT category has been very popular with international businesses as it used to be significantly easier to obtain an ICT visa compared to the old Tier 2 (General) category; however with the introduction of the new Skilled Worker category this is no longer the case:

• The ICT category has always been exempt from the Resident Labour Market Test requirement, but now that this has also been removed from the Skilled Worker category the ICT category has lost arguably its biggest attraction.
• The skill and salary thresholds for the new Skilled Worker category have been reduced, meaning that they are now significantly lower than the thresholds required for the ICT category.
• The requirement to complete a 12-month cooling-off period after the expiry of a visa has also been removed from the Skilled Worker category, whereas it still remains for the ICT category, albeit with more relaxed criteria.
• The annual cap on new applicants has been removed from the Skilled Worker category, meaning businesses no longer need to be quite so selective regarding to whom they offer a Skilled Worker visa.

All of these changes have resulted in a number of questions being raised regarding the utility of the ICT category. Apart from not needing to evidence English language ability, most of the reasons why an employer would choose the ICT category over the old Tier 2 (General) category have now been taken away, so is there any purpose for the ICT category going forward? To help the government answer this question the MAC has been asked to advise on the following points:

• The salary threshold for entry to the ICT route;
• What elements, if any beyond base salary, should count towards meeting the salary requirement;
• Whether, as now, different arrangements should apply to the very highly paid;
• What the skills threshold for the route should be; and
• The conditions of the route, in particular those where it differs from the main Tier 2 (General)/Skilled Worker route.

How will this affect tech companies?

As in other countries such as the US and Australia, IT and business consultancy firms rely heavily on intra-company transfers to meet the needs of their clients. Whether it is an internal project or a client commitment which needs fulfilling, these types of firm have become highly adept at maximising the utility of their global talent networks and are able to deploy staff around the world at speed.

Given the relaxations which have been introduced for the Skilled Worker category, the natural reaction is to dismiss the ICT category as a thing of the past and to start using only the Skilled Worker route. The Skilled Worker route can be used for temporary assignments as long as the relevant requirements are met. However it is important to remember that the Skilled Worker route is primarily intended to be used for overseas nationals who are filling permanent roles in the UK that arise from skills shortages. As such, some of the requirements for the Skilled Worker category do not necessarily suit the nature of temporary assignments.

For example, Skilled Worker visa holders must be paid at the level required by the rules for the entire duration of the visa, whereas ICT visa holders only need to be paid at the level required by the rules while the visa holder is physically present in the UK. Also, under the Skilled Worker category, allowances typical of temporary assignments such as a cost-of-living allowance cannot be counted towards the pay level required by the rules. However, as the ICT category is designed for temporary assignments these types of allowance can count towards the pay level required by the rules.

A large number of businesses are fundamentally locked in to the ICT category because of the nature of the way that they move their staff around the world. The MAC’s study of the ICT category will therefore go a long way in shaping how many tech businesses manage their global assignments over the coming years.

What next?

The MAC is currently analysing the feedback it received throughout the consultation phase of the review. It is due to report back to the government later this month.

Chris Harber is head of immigration at Boyes Turner, Reading