Brexit and UK Immigration: A summary of what employers and EU workers in the UK need to know

This article has been co-written by Tim Hayes and Ashif Ali, Paralegal (E [email protected] T +44 (0)20 7783 3573)

As we approach the end of the transition period, set for 11pm on 31 December 2020, the government has been ramping up communications to the public, recently focusing on what employers should be aware of if they wish to hire citizens from the European Economic Area after that date. This article is to outline the most important issues relating to immigration and sponsorship that both employers and prospective employees from EEA countries need to know and be ready for when the transition period ends.

How are right to work checks affected?

The government has stated that right to work checks will remain unchanged until 30 June 2021. Until then employers should continue to continue to accept the passports and national identity cards of EU citizens as evidence of their permission to work. Employers won’t be asked to differentiate between European nationals not residing in the UK as at 31 December, and who therefore need permission to work, and European nationals who are eligible to apply under the EU Settlement Scheme, but who either have not yet done so or who have applied but have just not yet been granted pre-settled or settled status.

Hence, whilst employers will no doubt welcome the fact that right to work checks will remain the same for the time being, there is a higher risk of employing someone without the right to work.

New requirements for skilled migrant workers

EU citizens moving to the UK after 31 December in order to work will be required to obtain a visa in advance. Any EU citizens applying for a skilled worker visa will need to show that they have an offer of a job at the required skill and salary level from an approved employer sponsor in order to apply for their visa.

Employers planning to sponsor skilled migrants from the EU after the new year who are not currently an approved sponsor are urged to consider getting approved now. From 1 January 2021 employers will require a sponsor licence if they wish to hire EU workers from outside the UK.

Home Office licenced sponsors

If you’re already a licensed Tier 2 sponsor, you’ll be automatically granted a licence under the new scheme in the corresponding category. There is, therefore, no need to reapply under the new system.

What do these changes mean for skilled workers and their employers?

Employers need to ensure they are well aware and up-to-date with the new requirements for skilled workers to stay in the UK. From 1 January 2021 anyone recruited from outside the UK for the Skilled Worker route will need to demonstrate the following:

• they have a job offer from a Home Office licensed sponsor;
• they can speak English at the required level;
• that the job offer is at the required skill level of RQF3 or above (equivalent to A level); and
• will be remunerated at least £25,600 or the ‘going rate’ for the job offer, whichever is higher, unless an exemption applies.

Intra-company transfers

Employers may apply for an intra-company transfer sponsor licence if they wish to transfer an existing employee from their business overseas to work for them in the UK.

From 1 January 2021 any workers transferring to the UK under the intra-company route will be required to:

• be sponsored by a Home Office licensed sponsor as an intra-company transfer;
• have 12 months’ experience working for a business overseas linked by ownership to the UK business they will work for;
• be undertaking a role at the required skill level of RQF6 or above (graduate level equivalent); and
• be paid at least £41,500 or the ‘going rate’ for the job, whichever is higher.

What happens to UK nationals posted in the EU?

The residency rights of UK nationals working in the EU are safeguarded until 31 December 2020. After that date, workers must apply for permanent residence status in the host country. Employers should assess the need to support workers in making these residency applications, and/or to make arrangements to facilitate the return of workers located in the EU.

EU Settlement Scheme

EEA and Swiss citizens (and their family members) living in the UK as at 31 December 2020 can apply to the EU Settlement Scheme but must do so by 30 June 2021. The new immigration system will not apply to EEA or Swiss citizens already employed in the UK by 31 December 2020.

For further details, speak to our immigration team.