What businesses need to know about immigration in a post-Brexit era

14 Jan 2021 By Jackie Penlington

With the transition period ending on 31 December, Jackie Penlington explains the new rules employers need to be aware of regarding their workforce and when recruiting

Different rules apply to European nationals depending on whether the individual first arrived in the UK before or after 11pm on 31 December 2020. Therefore, employers should take steps to ensure their current European workforce will still be able to work in the UK next year.

European nationals and family members who entered the UK before 11pm on 31 December 2020

Virtually all European nationals (and their family members) will need to apply under the EU settlement scheme to continue living and working in the UK long term. Only those with indefinite leave to remain or who are Irish nationals are exempt from applying. Importantly, those with permanent residence documents must still apply, as well as family members of Irish nationals.

The application is an online process with no application fees. The deadline for applying is 30 June 2021, and failure to apply by then may mean the individual will not have the right to live and work in the UK after 30 June 2021. It is also likely to mean that it would be a criminal offence for a business to employ them. 

Under the scheme, individuals will be granted either settled status or pre-settled status. Those with five years’ continuous residence in the UK should be eligible for settled status. Continuous residence means that the individual has been present in the UK for at least six months in every 12-month period.  

Those with less than five years’ continuous residence should be granted pre-settled status. Pre-settled status is granted for five years and it appears that this cannot be extended. Individuals must be careful to safeguard their ability to apply for settled status after five years in the UK and ensure they do not spend more than six months in any 12-month period outside of the UK. 

Employers should consider the impact that regular business travel, overseas secondments or working remotely overseas may have on their staff’s ability to apply for settled status. Businesses should also encourage their employees to apply under the scheme and check that everyone has obtained the relevant status by 1 July 2021.

Do you need to change your recruitment strategies?

Since 1 January 2021, European nationals coming to the UK for the first time will now be treated in the same way as non-European nationals. Therefore, businesses relying heavily on a European workforce will need to urgently make some key adjustments if they haven’t already done so. 

European nationals and family members arriving in the UK for the first time after 11pm on 31 December 2020

These individuals will not be able to apply under the scheme. To live and work in the UK they will need to apply under the new immigration rules, which came into effect on 1 January 2021. 

In many cases, employers will need to sponsor European nationals under the new skilled worker category and will need a sponsor licence. If the business does not already hold a sponsor licence, it should consider applying for one as soon as possible, with appropriate advice.

Businesses will also need to budget for the significant costs associated with the sponsorship system and factor in lead in time for the individual to obtain their visas before starting their role in the UK. In addition, employers should consider how the changes will impact workers coming to the UK temporarily and whether the visitor or new frontier worker permit scheme (for those overseas residents who have previously worked in the UK) may be appropriate. 

The Brexit transition deadline has now passed, and we are faced with a new post-Brexit era. With such significant changes having taken place, employers should take the necessary action now, if they haven’t already done so, to ensure they safeguard their current workforce and plan for their future recruitment needs.

Jackie Penlington is managing associate at Stevens & Bolton

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