The new immigration system arriving imminently – what to consider now
Brexit is here! New perspectives pr pld nightmares? Surely noting good for non UK workers, specially from EEA who
As of Thursday 22 October, we have more details on the new immigration system as the Home Office has now confirmed the content of the new Immigration Rules. With the Brexit transition period ending soon, and the new rules taking effect for non-EEA nationals from 1 December 2020, all employers need to be ready for the new immigration system.
Employers, employees and individuals need to consider how they can prepare now. Brexit spells the end of freedom of movement for nationals of the EU, and a new system will apply to all non-British nationals in the UK, including EEA and Swiss nationals. Employers need to start preparing for this change now, including understanding the proposed new rules, checking recruitment plans and budgets, obtaining or extending their sponsor licence and assisting staff with applications for work visas and the EU Settlement Scheme.
What’s changing?
EU workers EU workers and their family members who are in the UK now need to ensure they have obtained the right to stay in the UK under the EU Settlement Scheme and have applied for pre-settled or settled status. Those in the UK now or arriving any time up to 31 December 2020 have until 30 June 2021 to apply under the EU Settlement Scheme. Those arriving after 31 December 2020 will be subject to the new rules.
In addition, EU nationals who will be relocating to the UK after 1 January 2021 will need to satisfy an English language requirement, something they have not had to consider previously. This will apply to their family members also. Remember that the new system imposes a mandatory obligation on any EU national, and any EU family member, who wishes to continue to live and work in the UK.
Non EU workers Currently, non EU employees coming to work in the UK need to obtain a Certificate of Sponsorship (work permit) before they can apply to work in the UK. Employees, including those employed in partnerships and partners themselves, generally apply under Tier 2 of the current points based system to enable them to work in the UK as so-called sponsored skilled workers.
Under the new system, applicants will need to gain at least 70 points and demonstrate that they have a job offer from an approved and licensed sponsor, that the job is at the required skill level, and that they can speak English at the required level.- this in order to obtain a ‘skilled worker visa’. This is broadly similar to the present system. The scheme will open on 1 December 2020.
Most importantly, skilled worker visas will apply to all non British nationals, including EU nationals. From 1 January 2021 both EU and non EU citizens will be treated equally – until now, EU nationals have been able to live and work in the UK without specific permission to do so, under the freedom of movement provisions. The ‘skilled worker visa’ to work in the UK looks very similar to the current Tier 2 visa issued to sponsored skilled workers, with a few key differences, including:
The minimum salary threshold will be reduced from £30,000 to £25,600, or the ‘going rate’ of an occupation-specific threshold. The applicant will need to meet whichever threshold is higher in order to qualify
The minimum skills threshold will be reduced from degree level (RQF level 6) to RQF level 3 (A Level equivalent) – meaning that lower level and administrative level jobs may qualify in a way that they do not now
The resident labour market test will be removed – there will no longer be a requirement to advertise a job to local workers before recruiting foreign nationals
There will be a suspension on the cap of the number of skilled visas issued – currently the cap is set at around 21,000 visas per year: this will end.
A few key changes coming in with the new skilled worker visa system include the following, affecting new hires and intra-company transferees:
Intra-Company Transfer (ICT) visa holders will be able to switch from within the UK into the new Skilled Worker visa.
Previously, Tier 2 ICT visa holders needed to leave the UK for 12 months (the ‘cooling off period’) and apply for a fresh entry visa, unless they were a high earner (earning over £159,600 per annum). Tier 2 ICT Migrants are now permitted up to five years in the category in any six.
Current Dependant visa holders (family members) will now be able to switch from within the UK into the new Skilled Worker visa. Previously, Dependant visa holders needed to leave the UK and apply for an entry visa to return in this capacity
Under the current rules, Tier 2 General visa holders have been able to stay in the UK for up to six years. Under the new rules, the six year residence limit on Skilled Workers has been abolished, so there is no time limit on how long they can be issued for – they can now be extended indefinitely
You can no longer take into account guaranteed annual allowances/benefits for the purposes of calculating the minimum salary for the Skilled Worker category (you can still do so for ICT provided they would also be paid to a local worker in similar circumstances). In effect, this means that only base salary will count towards the minimum salary requirements.
Tier 5 visa holders – those here as temporary workers including interns or charity workers – will be able to switch into the new Skilled Worker route from within the UK. Previously Tier 5 visa holders needed to leave the UK and apply for fresh Entry Clearance (an entry visa).
Practical tips
In view of the changes, what do employers need to think about and how can they prepare now?
Those employers without a sponsor license must consider whether they will need a license to expand or even continue their operations in the near future. The Home Office are urging all employers, even those who do not currently employ or who have no plans to employ non British nationals, to obtain a sponsorship license. The build-up of outstanding license applications means long processing times – employers need to allow 8-12 weeks as opposed to 2-4 weeks, even for straightforward applications, so applying as soon as possible is advisable [a priority service will be available from 12 November for a fee of £500]
Employers with a sponsor license should take action to deal with the surge in EU national employees who must now be sponsored: this will involve budgeting for the additional visa costs, and training HR on the legal right to work implications, to ensure they have the employees they need and are fully compliant
Employers will need to continue performing right to work checks on all employees in the same way as they do now until 30 June 2021
The system will continue to be expensive – employers will need to factor in visa fees, the Immigration Health Surcharge (which has now risen to £624 per person per year), the Immigration Skills Charge (between £364 and £1000 per person per year) , and fees for all dependents – the total payable per application is not insignificant
Review whether a non sponsored working visa route may be suitable for current and potential employees – consider the Global Talent, Innovator or Start up visa routes which provide skill specific routes to live and work in the UK, while Youth Mobility and UK Ancestry visas are available for some individuals and may be applicable for eg, trainees and interns
A new post study work route will open up in 2021 which will allow those who have been students to work for a UK employer for up to two years, without being sponsored by that employer.
Most importantly…
Act now! These changes are coming in imminently, with applications for skilled workers opening on 1 December 2020. Employers need to focus on recruitment needs and assess what the business will require over the coming years, in order to ensure they have the personnel they need in place by the required time. There is a clear vision of where the government intend to go in terms of immigration, and employers need to be prepared to survive any delays or confusion surrounding the implementation issues which are bound to arise between now and the new system’s arrival on 1 December 2020, and following the start of the new system, particularly as it applies to EU nationals, in January.
UK based businesses should upskill their HR teams on sponsor licence management and the requirements of the new system – it’s crucial to make sure this is done so they are ready to go in, or ideally before, January 2021. Employers need to stay ahead of the curve with changes and updates: immigration policies normally have at least two major updates per year, though the pace of change has significantly increased in recent years. Significant adjustments will continue to be necessary as the post Brexit immigration system is established, and we anticipate frequent updates throughout 2021 and beyond.
Brexit and Covid
The Covid-19 pandemic has meant that Brexit may have taken a backseat in terms of people’s priorities, but the end of the transition period is fast approaching. Many are probably tired of the same Brexit talks, but it is important to be aware of the crucial dates that will impact European Economic Area (EEA) nationals and employers.
EEA nationals
From 1 January 2021, freedom of movement will end and any EEA national coming to the UK for work will need a valid visa to allow them to work under the new immigration system. This does not impact EEA nationals already in the UK or those that arrive by 31 December 2020 as they are expected to apply under the EU Settlement Scheme (EUSS) that will allow them to continue to work and live in the UK. EEA nationals that wish to remain in the UK will need to complete the EUSS application by 30th June 2021.
The EUSS will either grant an individual pre-settled or settled status. Pre-settled status is a five-year leave which can be later switched to settled status once the individual completes five years of residence in the UK.
Non-EEA family members
Family members of non-EEA nationals must also apply under the EUSS and the deadline is the same with a few exceptions.
They must also be in the UK before 31 December 2020 and apply under the EUSS by 30 June 2021. However, if they are not in the UK by the end of the transition period, they can still apply as long as the EEA family member has obtained pre-settled or settled status and their relation began prior to 31 December 2020. Family members of Swiss citizens have an extended timeframe in which the relationship must have begun before 31 December 2025.
Brexit and right to work checks
Employers should guide their current employees on the necessary steps and the crucial dates but they do not need to conduct retrospective right to work checks for their current EEA employees as their passports will remain sufficient. Employers also cannot insist employees confirm their EUSS status until after 30th June 2021. Unfortunately there is no guidance from the government on how employers are to check whether their EEA employees have completed the EUSS by 30 June 2021 but we assume further details will be provided closer to the time.
As the employment of an EU national after the 30 June 2021 without lawful status, either under the EUSS or under the new immigration system, could be considered unlawful, we advise clients to obtain evidence of status prior to this date on a voluntary basis.
Final checklist
Have robust right to work checks and up-to-date records of current employees.
Be aware of deadlines that relate to Brexit, and that EEA nationals and their family members are able to demonstrate their right to work.
Possess a valid Sponsor Licence to allow the company the flexibility to apply for any necessary work visas.
Review potential new hires in the coming months.
Review potential internal company transfers and the activities they will be engaged in while in the UK. Will any of these need work visas or will they be eligible to enter under the Visitor rules?
Carefully consider your Certificate of Sponsorship needs over the next 12 months and beyond
Immigration and asylum interviews exempt from English lockdown
A blanket lockdown began today — in England; other jurisdictions are available — and runs for 28 days. During that time, people are not to leave home “without reasonable excuse”. The lockdown regulations include a list of things that automatically qualify as a reasonable excuse, although it is non-exhaustive so other excuses that are reasonable will also qualify.
The list of reasonable excuses is in regulation 6 of the Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020 (SI 2020 No. 1200). As I’ve already highlighted on our main coronavirus page, but wanted to pull out in case it’s a little hidden away, there is a specific exception for visas and asylum:
(4) Exception 2 is that it is reasonably necessary for [the person concerned] to leave or be outside [their] home…
(f) to access critical public services, including…
(iv) asylum and immigration services and interviews.
By contrast, the regulations enforcing Lockdown 1.0 in March did not explicitly say that asylum and immigration services were “critical public services”. They did include a separate exception for people to “fulfil a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings”, which appears again in the new regulations.
The Home Office has also updated its guidance to emphasise that “our in-country immigration services (UK Visa and Citizenship Application Services, Service and Support Centres and English Language Test centres) will remain open” this time around.
