Employers – get ready. You need to be prepared

From 1 January 2021, the right of free movement between the UK and the EU will end. The ramifications for UK employers are manifold and Wellers’ immigration lawyers want to make sure that UK businesses are aware of the key factors to consider.

For existing EU workers with right to work in the EU

EU nationals currently working in the UK have until 30 June 2021 to apply to remain in the UK under the EU Settlement scheme. EU workers can verify their ID (passport or national identity card) via an App and apply online on the GOV.UK website. They will need proof of residence using their National Insurance number. Some employees may be asked to supply payslips or a P60 as proof of employment so you might need to supply copies for them upon request.

It’s useful to know that there is no mandatory requirement for EU citizens to have applied already and you can’t insist that an EU applicant has applied for settlement at this stage in order to offer them a job.

UK nationals working for you in the EU

Any UK passport holder working for you in the EU has until 30 June 2021 to apply for a residence document allowing them to stay on abroad past the Brexit transition phase. However, there is no standard application process for this and your employee will need to apply to their relevant jurisdiction to obtain the necessary clearance document.

You should encourage your employees to make the applications in plenty of time before the deadlines.

Cross border and frontier workers

As Brexit signals the end of free movement between the UK and EU countries, if you have frontier or cross-border employees who either travel from homes in the EU into the UK on a regular basis or employees who travel from their home in the UK to an overseas location, but return home at least once a week, you will need to ensure their status is protected.

Under the Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020 (draft), employees will be able to apply online for a frontier worker permit. Eligible applicants must provide a valid identity document and evidence of their role as a frontier worker prior to 31 December 2020. The application process is likely to launch towards the end of 2020 or early 2021. It will have the same deadline as the EU settlement scheme – 30 June 2021.

Business travellers

While free movement across the EU is ending for UK passport holders, employees who travel in and out of European countries for business purposes aren’t going to need visas for certain employment activities such as meetings, site visits etc. and they will be subject to the same business traveller entry systems and requirements as other non-EU and Schengen Area business travellers.

For instance, from 1 January 2020, under business entry status an employee may attend a meeting and stay for a short period, but they cannot go to work in an overseas office because they won’t have the right to work abroad. UK business travellers will need their passport to be valid for at least six months, must have appropriate funds to cover their stay, and may be required to state the purpose of their visit and be subject to entry checks at the border. As an employer, it may be necessary to supply letters to your business traveller employees that confirm the details of their visit and that they are not going to carry out any “work” while on the visit.

It will be useful to note that if you need someone to work in an EU office, you will have to apply for a work visa. This should be done in plenty of time and your ongoing secondment requirements will require forward planning – visas can take up to three months to be processed and employers should be prepared for delays during the transition period.

Special notes and your immediate to do list

  • If you have employees in the above categories you should be working towards an audit of their particular circumstances and a schedule of how you will need to protect them. This may involve contacting individuals or groups of employees and informing them of what they will need to do before the relevant deadlines.
  • It’s useful to know that it is unlikely that deadlines will be changed as a result of No Deal.
  • Irish nationals working and living in the UK have special status and won’t need to apply under the EU settlement scheme. This is reciprocal for UK nationals living and working in Ireland.

The new immigration scheme – Recruitment of EU workers post December 2020

From 1 January 2021 any new hires from the EU who are coming to live and work in the UK for the first time will need a work visa and will need to apply to the Home Office in exactly the same way as non EU citizens. As an employer you will need to ensure any employee has the right sponsor visa and you have the right sponsor licences in place.

The new skilled worker route is closely modelled on the Tier 2 route for non-EU workers but is designed to expand the range of jobs that can be applied for under this route. Some of the current requirements that restrict employers, such as the advertising requirement and annual quota requirement, will be removed, so applications and role fulfilment will be simpler to process for you as an employer. Plus the level of qualification/skill level has been lowered to a NQF Level 3 (A Levels) or above.

The skilled worker visa route is a points-based system and you can find out more about the new route in our website article: What is a Skilled Worker Under the Points-based Visa system?

The Intra-company Transfer route – Changes from 1 January 2021

For international organisations who want to bring people they currently employ abroad into the UK to work temporarily, the new Intra-company Transfer route will remain similar in format to the current Tier 2 Intra-company route. However, you may need to expand your sponsor licence and register for the Intra-company transfer route (as opposed to the Tier Two general route).

The transfer route requires a higher level of qualification or skill than the points-based skilled worker route (it is going to stay at NQF level 6 or above), so it’s for senior management roles and those requiring a bachelor degree or above. The salary requirement is a minimum of £41,500 (subject to the going rate). There is no English language requirement.

The Intra-company route is a temporary, non-settlement visa for five years – nine years for higher earners. However, employees on this route can switch to a skilled worker visa – currently, this is not available under the Tier 2 route

Costs

One of the major changes for employers will be costs associated with employing non-UK individuals. Currently, there are no visa-related charges for EU nationals coming to work in the UK. From 2021, all EU and non-EU nationals will need a sponsored visa and employers will need to pay the applicable fees.

For a five-year visa the fees are going to be a total of £9,340:

  • Application fee: £1,220
  • Immigration skills charge: £1,000 per year (reduced charge for smaller employers usually £1,000)
  • Immigration health surcharge (to contribute to NHS costs): increasing to £624 per applicant.

There will also be costs for any dependents and there will be additional fees for expedited visas if you need the visa back quickly. Shorter visas are available and the cost reduces proportionately.

Non-sponsorship routes

For lower skilled and temporary jobs, there are alternative routes. The new Graduate Route will launch in summer 2021 and allow undergraduates and Master’s degree students to stay on in the UK following the completion of their studies for two years while working in any capacity. PhD students will be able to stay for three years. International students taking this route will be able to switch to the skilled-worker route once they find suitable employment.

The Youth Mobility Scheme provides a two-year visa route for 18-30 year-olds from eight specified non-EU countries, any job at any skill level. The two year visa is not extendable.

The Government Authorised Exchange is for sponsored internships and temporary work experience roles via approved schemes which will include EU nationals from next year.

How should employers be preparing for the changes?

With the cessation of free movement from 1 January 2021 EU citizens will be subject to immigration controls. You, as an employer, will need to prevent illegal working by:

  • carrying out checks at the time of recruitment
  • carrying out ongoing checks in relation to time-limited visas.

The individual status of a potential employee and their nationality will determine what documents you will need to check. Existing EU employees are covered under the Withdrawal Agreement and they will need to apply to stay in the UK under the settlement scheme. New employees from 1st January will be subject to the new regime.

Any EU national you employ from next year who is already in the UK will be protected under the Withdrawal Agreement and will not need a visa, but they will need to have applied to settle in the UK and will need to show that they have the right to work. There is no documentary evidence they can present to prove their UK settlement status, but they will be able to give you a number/code that can be checked online to confirm their status.

It is important to make sure you check the correct portal. You must make the check yourself and not accept a screenshot from the applicant. You should take a screenshot or a printout of the screen you view and as long as you are in the right section for employers your check of the applicant’s status will clearly show that you have made the check for Right to Work purposes.

Unfortunately, there is likely to be a six month crossover period between the 1st of January and 30 June 2021 when it could be unclear about the most suitable route for EU applicants. The Government has advised that an applicant’s date of entry into the UK is going to be an important factor and must be checked, but that the onus is on the applicant to prove they have the right to work not for the employer to have to make checks.
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Immigration lawyers are hoping that further guidance on this will be published soon.

Employers To-Do list

Below are the items you should be thinking about in readiness for 2021 and the new conditions for EU workers:

  • Apply for a sponsor licence as soon as possible if you intend to hire EU and non-EU citizens entering the country in 2021.
  • If you are going to need to apply for Intra-company Transfer visas, check your sponsorship licence as soon as possible to make sure you are covered correctly.
  • Carry out an audit or review of sponsorship management to make sure you have the right structure in place to ensure compliance with new immigration and right to work rules.
  • Carry out staff training and upscale your internal processes accordingly for sponsor management.
  • Carry out a budgeting exercise to work out total visa costs for your projected workforce needs.

Immigration legal services for businesses

Contact Rosalind Nunoo on 020 8290 7982 or email Rosalind.nunoo@wellerslawgroup.com to discuss your business immigration needs.