On 1 January 2021, the new points-based immigration system came into effect for EU and non-EU nationals. These changes mean that employers will have to adapt and introduce new processes for employees affected by the changes below:
End of free movement and introduction of the new points based immigration from 1 January 2021
The Brexit transition period, during which EU law continued to apply in the UK, ended on 31 December 2020 marking the end of free movement for EEA nationals. Those who were not already resident in the UK prior to 31 December 2020 are now subject to the same immigration rules as everyone else, marking a significant overhaul to the immigration system we knew previously with implications for the way UK businesses employ non-UK national staff.
For those seeking employment in the UK, permission to work can now be obtained under new points-based immigration system which came into force on 1 January 2021, with the rules regarding business travel, intra-company exchanges and short-term work also changing for incoming EEA nationals. For employers and recruiters, the most significant change is the introduction of the Skilled Worker Visa which will require any employer seeking to bring non-UK national talent into the UK to hold a valid UKVI Sponsor Licence.
More businesses will need a Sponsor Licence
Only sponsors licenced by UKVI are capable of issuing the certificate of sponsorship required to score the mandatory 20 points for sponsorship under the Skilled Worker Visa. While existing Tier 2 Sponsor Licences carried over automatically in December 2020, employers who do not yet hold a licence are encouraged to contact us to discuss obtaining one as soon as possible if they want to continue bringing non-UK national talent into their business.
While more applicants will require sponsorship under the Skilled Worker route, theoretically the types of jobs capable of sponsorship should also increase. The previous skill-threshold of level RQF6 (i.e. Master’s degree level) has been reduced to RQF3 (A-Level or Scottish Higher level) or above. Applicants do not actually require to hold this qualification but it does widen the scope of Appendix Skilled Occupations in terms of what type of work is considered sufficiently skilled for the purpose of this visa. The Migration Authority Committee have also made recommendations regarding the type of jobs which should be included in Appendix Skilled Occupations, so further changes to this list may be on the horizon.
Deadline for applying to the EU Settlement Scheme on 30 June 2021
For EU nationals resident in the UK before 31 December 2020, the appropriate means of securing ongoing permission to live and work in the UK is to register through the EU Settlement Scheme. Although the requirement for pre-settled and settled status under the EU Settlement Scheme is residency in the UK before 31 December 2020, applicants have until 30 June 2021 to make an application. It is essential that any EEA national resident in the UK by 31 December 2020 comply with this deadline to avoid losing their entitlement to settled or pre-settled status under the EU Settlement Scheme and, by default, falling into the new points based system, which has significantly more involved eligibility requirements and costs.
Right to work checks: care required until 30 June 2021
The extended deadline of 30 June 2021 for applying to the EU Settlement Scheme does create a slight anomaly for recruiters. The EU Settlement Scheme Online Guidance for Employers makes it clear that, in conducting Right to Work checks, an EEA passport is sufficient as proof of right to work in the UK until 30 June 2021. The difficulty this poses is that EEA nationals cannot be compelled to apply to the EU Settlement Scheme nor can they be discriminated against by a potential employer for not holding pre-settled or settled status before 30 June 2021. However, if they fail to apply to the EU Settlement Scheme before this deadline or otherwise obtain a work-permitting immigration status in the UK, they will strictly speaking not have permission to work from 1 July 2021 onwards. Employers seeking advice on an EEA national staff member’s permission to work are encouraged to contact our Employment and Immigration team for further advice on Right to Work checks and discrimination.
No more Resident Labour Market Test but more guidance required regarding the need to advertise sponsored roles
Many recruiters will rejoice the decision to scrap the Resident Labour Market Test under the new Skilled Worker route. However, the new rules do not abolish the need to advertise sponsored roles entirely. Employers must still demonstrate the genuineness of the role which can be challenged where the Home Office have “reasonable grounds to believe” that the job does not exist, is a sham or has been created for the purpose of facilitating an application for entry clearance or leave to remain. What this actually means for employers in practice is not yet clear and the hope is that more guidance will be issued soon. In the meantime, while the RLMT and 28-day advertising period is no longer prescribed, advertising to a similar standard as required by the RLMT would certainly do no harm in ensuring the genuineness test is met.
Changes to business travel between the UK and EU and use of the new Frontier Worker Permit
The end of free movement will have a significant impact on short-term business travel between the UK and EU from 1 July 2021 onwards and incoming EU business travellers will need to carefully consider the duration and purpose of their visit.
Currently, visa-free short term travel for EEA nationals is generally permitted up to 6 months for certain specific and fairly limited activities, which includes certain business activities such as attending conferences and meetings. Activities likely to exceed these limited purposes or extend beyond the 6-month duration would give rise to a requirement to have more formal permission to work from 1 July 2021. It is also worth noting that the Trade Agreement reached on 24 December 2020 between the UK and EU expressly allows the UK Government to determine its own rules for incoming short-term visitor visa suggesting the current visitor rules for EEA nationals could be liable to change in the future.
For EEA nationals who will continue to travel to the UK for work with a degree of regularity but remain permanently resident elsewhere, the Frontier Worker Permit has been introduced as a safeguard if it can be demonstrated that the applicant is an EEA national resident outside the UK and their working arrangements in the UK existed prior to 31 December 2020. Where these criteria cannot be satisfied, the only option may be to consider seeking sponsorship or endorsement under the points-based system.
Whereas all EEA nationals will be treated under the same rules in the UK, UK business travellers visiting the EU will need to confirm the local business travel rules for incoming third-country nationals in the specific EU country they are visiting.
Greater use of endorsement-based visas, namely the Start-Up, Innovator and Global Talent routes?
With the EU bloc now requiring to follow the same UK immigration rules as the rest of the world, we could see greater interest in non-sponsorship based routes to work and establish a business in the UK. The new points-based system introduces freshened up rules for the Start-Up, Innovator and Global Talent routes all of which rely upon securing endorsement from a UKVI authorised endorsing body as an alternative to sponsorship from an employer directly. These alternatives to sponsorship could prove useful for EU-national entrepreneurs and business owners looking to set up in the UK and we would encourage seeking specialist advice from our immigration advisers on the most appropriate option for your business plans.
Could the Youth Mobility Scheme be extended to other nationalities?
The list of nationalities eligible to apply under the Youth Mobility Scheme remains as it was for now, but with the end of free movement, it is possible the UK Government could seek to extend this to the EU bloc, offering young workers under 30 an opportunity to work in the UK for up to 2 years without the need to seek sponsorship. We will need to await more information from the UK Government to see to what extent this route is taken forward as the new immigration system takes shape.
A new route for graduates expected to be announced soon
The UK Government has announced its intention to resurrect, although not necessarily in the same format, the now defunct Graduate Visa which allowed non-UK nationals of UK universities the opportunity to extend their stay following completion of their studies in order to find work. We await further announcements as to the likely timescale of this new route coming into effect.
Insight from Maria Gravelle, specialist Employment and Immigration Solicitor. For more information contact Maria on 03330 430350.