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Changes to the immigration system after Brexit
This guidance highlights the changes to the UK immigration system for European Union (EU), European Economic Area (EEA) and Swiss nationals that occurred from 1 January 2021 after the end of the Brexit transition period.
The issues outlined include:
This guidance does not replace legal advice or a consultation on an individual basis with the relevant regulators.
We cannot accept any liability resulting from any action or lack thereof taken on the basis of the information contained in this guidance.
EU Settlement Scheme
Make sure relevant employees register under the EU Settlement Scheme
Any employees of EEA or Swiss nationality and their non-EU family members living in the UK before 31 December 2020 should apply for the EU Settlement Scheme.
Those who do not apply to the scheme by 30 June 2021 will potentially become unlawfully present in the UK, meaning they will be unable to continue working here legally.
None of the above applies to Irish nationals and Irish frontier workers, who do not need to apply under the scheme.
Prepare for right to work checks
Prepare and train staff for the right to work checks that will need to be carried out after 30 June 2021 on new EEA or Swiss national employees.
Before 30 June 2021, a valid passport or ID card will be sufficient. The government has indicated that right to work checks will continue being done using an online platform, which permits remote checks.
Familiarise yourself with sponsorship processes
EEA or Swiss nationals arriving in the UK from 1 January 2021 will not have the automatic right to work, so they may require sponsorship unless they qualify for a frontier worker permit or another type of visa.
Review existing sponsor licences
Make sure that:
- the sponsor licence is up to date, with all relevant overseas and UK offices (particularly those in the EU) being approved as linked entities or work sites on the sponsor licence – this is important for intra-company transfer (ICT) migrants
- there are enough certificates of sponsorship for the future, and apply for more if needed
- all relevant individuals who may need to be sponsored are identified and the sponsor is aware of the requirements for individual sponsorship
- relevant records and reporting duties are being maintained for existing sponsored employees
- internal audit checks are taking place
Apply for a sponsor licence (if the firm does not already have one)
Make sure that:
- sponsors have human resource systems in place to comply with sponsor duties, including record keeping and monitoring of migrants
- the organisation has individuals who are aware of the sponsorship process, sponsor responsibilities and are able to take on 'key personnel' roles assigned to them under the licence
- sponsors are committed to employing overseas migrants in line with the Home Office requirements (for example, guaranteeing to pay the migrant at a specific salary level)
Be aware of changes to the immigration system
The changes to the immigration system came into force on 1 December 2020:
- the skilled worker route replaced the Tier 2 (general) visa category and the intra-company transfer route replaced Tier 2 (intra-company transfer)
- existing Tier 2 sponsors were automatically granted a new skilled worker licence and/or intra-company transfer licence and received an allocation of certificates of sponsorship
Financial and strategic planning
Understand the 'points-based system'
Be aware of how the new ‘points-based system’ works, including ‘tradeable’ points for the skilled worker route.
- Salaries must meet whichever is higher of the general salary threshold (£25,600) or the specified ‘going rate’ for an occupation. Flexibility is provided based on whether the employee has a PhD relevant to the role and/or whether the job is listed on the Shortage Occupation List
- The effective minimum salary to sponsor a skilled worker visa for solicitors is £34,300. This figure is the ‘going rate’ for the occupation, based on a 39-hour working week. If the contracted hours are higher or lower, then the going rate is adjusted pro rata. If the applicant is a ‘new entrant’, the going rate is £24,010
Factor in costs for sponsored workers
Be aware of the costs for each sponsored worker, including:
- an immigration health surcharge of £624 per year
- immigration skills charge payments of £364/£1,000 per year (depending on business size)
Factor in timing for other requirements
Factor in timing for the below:
- an English language test may be required
- the maintenance requirement – usually funds must be in the applicant's account for at least 28 days (unless sponsor certifies maintenance)
- processing times vary depending on type of immigration permission
Be aware of changes to visa routes
Changes have been made to the visa routes under which individuals can work for you:
- skilled work route – requires sponsorship, salary and skills thresholds
- unsponsored work route – limited to highly skilled individuals, proposed two-year immigration permission, unlikely to be activated until 2022
- graduate route – to be launched on 1 July 2021 for international students to look for work after they graduate – which will provide two to three years’ permission to live and work in the UK without a sponsor, depending on degree level
- other routes include:
- Tier 5 (Youth Mobility Scheme) – two-year immigration permission for certain nationalities aged 18 to 30
- visitor route – be aware of restricted ability to enter for work purposes
- students – restrictions on ability to work, although doctorate extension scheme has more flexibility
- intra-company transfers
Prepare for recruitment issues with 'low-skilled' workers
There is no specific immigration route for many ‘low-skilled’ workers, so prepare for possible issues with recruitment.
Monitor changes to right to work checks
Keep up to date with the rules that are in place when the employee starts here, regarding right to work checks, which remain unchanged for EU, EEA and Swiss nationals until 30 June 2021.
We’re awaiting further clarity from the government the evidence required for right to work checks completed after that date.
Identify visa requirements and costs for British citizens
Make sure that any visa requirements and costs for British citizens travelling within the EEA/Switzerland are identified in advance.
Employers should be aware that the intra-company transfer (ICT) rules have remained broadly as they were before 1 December 2020.
The previous ‘cooling off’ rules, which required a 12-month waiting period for those returning to the UK as skilled sponsored workers in many circumstances, have been removed. Instead, an overseas ICT transferee must not hold entry clearance or leave to enter/remain as an ICT transferee for more than five years in any six-year period, except where they qualify to be granted up to nine years because their salary is £73,900 or more.
Check that UK nationals apply for EEA residence schemes
Make sure that employees of UK nationality who are exercising EEA free movement rights abroad apply for parallel residence schemes in their country of residence.
The requirements may differ between countries, so it's important to find out exactly what residence requirements are needed for each employee working in the EEA/Switzerland.
Check whether moves could affect EU settled status
Consider whether proposed moves outside of the UK could affect EEA/Swiss nationals’ eligibility to apply for or maintain EU settled status under the EU Settlement Scheme.