Legal

Are you ready for the immigration shake-up?

26 Nov 2020 By Fraser Vandal

Brexit will bring a raft of new restrictions on hiring EU workers, so employers must act now to minimise the impact on recruitment, says Fraser Vandal

With Covid-19 continuing to dominate the headlines, it is perhaps easy to forget that the UK’s Brexit transition period is due to end on 31 December. This will bring about the biggest change to UK immigration laws in recent memory and will have a direct impact on how employers recruit overseas staff. 

EU settlement scheme

The EU settlement scheme is the mechanism for EU/EEA/Swiss nationals (EU nationals) and certain non-EU national family members to maintain their right to reside in the UK post-Brexit, while at the same time enshrining those residence rights in domestic UK law.

As a general rule, EU nationals resident in the UK by 31 December 2020 will be eligible to apply under the scheme. Those who meet the residence deadline will then have until 30 June 2021 to actually make their scheme applications. The application process should be straightforward for most applicants, completed online and require minimal supporting documents.

Although a scheme application does not necessarily require input from an employer, it makes sense for employers to publicise the scheme using existing government materials so that individuals know that they need to apply. Audits of existing right to work documentation can also identify eligible individuals. Although employers cannot force employees to make a scheme application, it makes sense to encourage staff to do so to reduce the risk of business disruption.

Skilled worker visa

From 1 January 2021, the current system of Tier 2 (General) visas will be replaced by the Skilled Worker visa. Key changes include:

  • The system will apply to both EU and non-EU nationals who intend to travel to the UK from 1 January 2021 onwards. It will not be restricted to non-EU nationals like the current system. Those with status under the settlement scheme will not be governed by the new skilled worker rules.
  • Currently, only roles that would typically require a Degree or Masters qualification (RQF Level 6 roles) are eligible for sponsorship. The new skilled worker visa will be available to individuals filling lower-skilled roles at RQF Level 3.
  • In line with the reduction in the skill level threshold, the baseline minimum salary requirements will also be lower. An employer will generally need to pay a minimum salary of £25,600 or the ‘going rate’ for the job (whichever is higher), although some exceptions will apply.
  • The resident labour market test will be abolished, meaning that mandatory 28-day advertising to the UK workforce will no longer be required.
  • The system will be more flexible than Tier 2 (General). Under the skilled worker rules, applicants will be allowed to ‘trade’ various characteristics in order to obtain the requisite number of points to successfully apply for a visa. 

The biggest change for most employers will be the fact that much more stringent rules will apply to the recruitment of EU nationals who arrive in the UK from 1 January 2021 and who do not have status under the settlement scheme. Employers who do not already have a sponsor licence should actively consider whether a licence may be required to maintain access to a wide talent pool.

Right to work checks 

How employers should check EU nationals’ right to work will not change until after 30 June 2021. Until then, EU passports and ID cards can be used as proof of right to work. Further guidance is expected later in 2021, but the government website suggests that retrospective checks will not be required for existing employees.

Fraser Vandal is a solicitor at TLT

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