New post-Brexit immigration rules published: what employers need to know

With the free movement of people due to end in less than a month, the UK’s new points-based immigration system has now opened for visa applications and the Home Office has published its changes to the immigration rules. From 1 January 2021, there are several routes for EEA nationals to apply to live and work in the UK, and for employers, this marks a huge shift in the way they will recruit and bring international workers to the country.

In this article, immigration partner Tsige Berhanu outlines the key routes and important changes to the UK immigration system that employers should be aware of.

Skilled Worker route

The Skilled Worker is the route available for UK-based employers to recruit non-UK nationals. This route replaces the Tier 2 General route formerly used to sponsor non-EEA nationals to work in the UK. Although a very much similar process, with the removal of the resident labour market test and the suspension of the annual cap, the Skilled Worker route is simpler and should take much less time than its predecessor. It is also open to a lot more people due to the lowering of the skill level to RQF 3 (A levels) and the minimum salary threshold, to the higher of £26,500 or that payable for the role. There is room for the salary to fall even below this, where there are special skills such as PhD level or shortage occupation roles.

Intra-company transfer (ICT)

Similar to the Tier 2 regime, employers can use the ICT route to move their existing international employees from their entities abroad. This route will now be referred to as ICT (dropping the “Tier 2” title) and will operate in more or less similar terms as the Tier 2 regime. With its much higher salary threshold of £41,500 and skill level of RQF 6, it is likely be a less favourable option than the Skilled Worker route. However, it may still be a viable alternative for those on temporary assignments who meet the salary threshold but not the English Language requirement.

A positive change to the ICT transfer is the lowering of the high-earner threshold to £73,900, which will allow those earning at least this amount to be eligible for the visa without the need to have worked for the overseas entity for at least 12 months. High earners are also able to work in the UK for up to nine years instead of the five years maximum for ICT visa holders. The possibility of switching to the Skilled Worker route from an ICT visa is also welcome news.

Sponsor licence

A key point to note for businesses with plans to recruit from the EU post-Brexit is that they will need to apply for and be granted a sponsor licence. Those who already have a sponsor licence will have their existing licence upgraded automatically, so they will not need to take any action.

Although simpler than the previous process, when compared to the free movement era where no immigration application was required before employing EU nationals, the new system introduces significant changes to the recruitment process. To start with, the sponsor licence application could be a very time-consuming process and applying as early as possible is highly recommended. Furthermore, with the grant of a sponsor licence, employers acquire a set of compliance duties around the areas of:

• prevention of illegal working;
• ensuring that the minimum skill and salary level for the job are met throughout the sponsorship period;
• monitoring migrant activity;
• document/record keeping; and
• notification of changes to the terms of sponsorship as well as the business.

The applications also involve payment of hefty processing fees and surcharges.

However, the need for a Skilled Worker visa for EU nationals arises only where they have not started their residence in the UK by 11pm on 31 December 2020. It is the start of “residence” not “employment” that is the key factor here.

Needless to say, EU nationals who are resident in the UK by that date should register for their settled/pre-settled status as soon as possible, and before the deadline of 30^t June 2021. For the majority of EU nationals, the process is straightforward and quick. Those with potentially complex issues, however, should seek advice as early as possible to avoid missing the deadline.

Right to work documentation

Although free movement ends on 31 December 2020, employers need to continue checking EU nationals’ right to work in the same way as now until 30 June 2021. There is a clear message from the Home Office that employers cannot require EU national employees to show their status under the EU settlement scheme until after 30 June 2021. Instead employers are encouraged to communicate the need to register for settled/pre-settled status indirectly.

From 1 July 2021 employers will be required to carry out right to work checks on EU national employees. However, the latest Home Office policy has confirmed that there is no requirement for retrospective checks to be undertaken on EU nationals who were employed on or before 30 June 2021.

If you wish to discuss how the new points-based immigration system will impact your post-Brexit recruitment and employment processes, please contact Tsige Berhanu.