The UK’s new immigration rules take effect from 1 January 2021. How will the new system impact employers?
Post Brexit Immigration
Under the terms of the Withdrawal Agreement, the UK officially left the European Union on 31 January 2020.
A transition period was agreed until 31 December 2020, to allow the UK government to negotiate specific terms to ease the departure from the EU. During this transition period, most of the provisions under the EU membership were retained by the UK, including the requirement to continue to comply with EU regulations and laws.
This included EU free movement across internal EU borders, and the continued rights of EU and British nationals.
UK work visas & workforce planning in post-Brexit Britain
Looking specifically at immigration, regardless of the status of trade agreements, the end of the transition period on 31 December 2020 will see the end of EU free movement into the UK for non-UK residents, as well as for UK nationals travelling to EU countries. In effect – the rights of EU citizens coming to the UK from 1 January 2021 will change.
For organisations operating across UK and EU borders, the impact on workforce planning and mobility will be substantial.
From 1 January 2021, both EEA and non-EEA nationals coming to the UK to work, study or live will need a visa under the new immigration system.
This means employers with UK operations will need to hold a licence to sponsor non-UK resident workers to work in the UK from 1 January 2021.
The implications of the changes – and the response necessary from your organisation to avoid operational issues and ensure continued compliance with UK immigration rules – will vary depending on a number of factors, including the nationality of your workers. We look at some key considerations and areas of risk for employers preparing for 2021.
EU nationals and their families already resident in the UK on 31 December 2020 can retain their current rights in the UK and will not be subject to the new immigration rules, provided they apply to the EU settlement scheme by 30 June 2021 to verify their UK residence.
If they have been resident in the UK for more than 5 years, they will be granted settled status. Those with less than 5 years’ residence will be granted pre-settled status, to allow them to attain the 5-year requirement at which point they should apply for full settled status.
Without settled or pre settled status after 30 June 2021, EU nationals will lose their lawful status in the UK.
Employers are recommended to ensure their EU national workers are aware of this requirement and support their employees in applying under the EU settlement scheme to maintain their lawful status in the UK and safeguard continued lawful employment.
Current holders of permanent residence cards who did not apply for naturalisation (British Citizenship) will also need to apply for settled status as permanent residence will not be valid after the end of the implementation period. EU citizens will have until 30 June 2021 to convert their permanent residence to settled status.
EU workers’ right to work
At present, employers are not required to check if an EEA national (or their family member) employee, or prospective employee, has applied for or has been granted a UK immigration status under the EU settlement scheme, and are not required to distinguish between those who have arrived in the UK before or after 31 January 2020. Employers must also not discriminate between those who have been granted a status under the EU settlement scheme and those who have not.
The above applies to all EEA nationals and their family members arriving in the UK up to and including 31 December 2020.
Employing non-UK residents after 1 January 2021
From 1 January 2021, to hire a skilled worker who is not UK resident, an employer will have to hold a valid sponsorship licence.
If the company considers employing EEA nationals in 2021 but does not currently have a sponsor licence, they should apply for one now.
From 1 January 2021, under the new points-based system, licensed sponsors will be able to sponsor both EEA and non-EEA workers under the new skilled worker route which will replace Tier 2 (General). The Tier 2 ICT route will also be available.
There will be no cap on the number of skilled worker visas that can be issued.
Skills, language and salary thresholds apply to the new skilled worker visa.
The minimum salary threshold is lower than under the previous Tier 2 visa route. This will either be the general salary threshold of £25,600 or the going rate for your job, whichever is higher. If the salary is less than this – but no less than £20,480 – employees may still be able to apply by ‘trading’ points on specific characteristics against your salary. For example, if you have a job offer in a shortage Occupation or have a PhD relevant to the job.
The skills threshold has also been lowered to RQF level 3, meaning a larger number and variety of roles will become eligible under the skilled route.
The resident labour market test is also being removed, easing the compliance burden on employers when recruiting skilled migrant workers.
Taking advice on the updated requirements will help ensure your organisation is making full use of the new rules, and will ensure that any applications are meeting the eligibility requirements.
New graduate route
A new graduate route is being introduced, where undergraduate and master’s degree students can apply for a two-year graduate visa. PhD students can apply for a 3-year visa.
Both routes do not need to be sponsored and the migrants should be able to switch into work routes in the UK. This is almost like a Tier 2 General visa, but the individual is not tied to a specific employer, as they are with the skilled worker visa. They will however need to be sponsored after this point in order to remain lawfully in the UK.
Employers are advised to review their graduate programmes and entry-level recruitment processes to ensure optimised use of this new route.
Sponsor licence check
If your organisation already has a sponsor licence in place, conducting a review of the licence is advised to help to ensure:
- You have the correct type of licence to suit the roles you will be recruiting for
- You have sufficient number of Certificates of Sponsorship to meet your ongoing and future needs
- The licence is valid to avoid expiry issues
- The licence is held by the correct UK legal entity
- All contact details and organisation information are correct and up to date (eg key personnel)
Tips for current employers of EEA nationals
If you already employ EU workers, there are a number of steps you can take to aid the transition to the new rules:
- Conduct an audit to identify the number of EU nationals on your payroll. Categorise employees into 3 groups – British Citizens and ILR, EU Nationals and List B (visa holders).
- Of these identified EU nationals, confirm their length of service and period of residence in the UK and the date they joined the company.
- Review Right to Work checks for your EU workers, and ensure that the retained copies satisfy the requisite format.
- Ascertain whether their EU workers have yet applied for and secured pre-settled or settled status. The current guidance states that employers are not to carry out retrospective checks on existing EU employees. It is the responsibility of the individual to make an application to the EU Settlement Scheme and there is no requirement for the individual to inform the employer, that they have applied or the outcome of their application. Likewise, employers should not check that an employee has applied in order not to discriminate against EU nationals based on whether they have obtained pre-settled or settled status. We would therefore recommend that employers send out a communication about the EU settlement scheme and direct your employees to the information that the government is providing.
- Employers should also review, amend and redraft their organisation’s processes, policies and documents to reflect the new legal position of EEA nationals post-Brexit.
EU based operations
EU free movement for EU nationals within EU member states will be unaffected by Brexit.
Organisations hiring non-EU workers within an EU member state will need to apply for a permit under the EU Single Permit Directive. This will provide cover for both work and residency.
DavidsonMorris are specialist UK business immigration lawyers. We are working with employers, from global multinationals through to start ups, to support with the transition to the new UK immigration system. We are providing guidance on workforce planning, compliance and people mobility strategies to minimise the impact of the changes on operations, while optimising the opportunities to enhance international recruitment and access to skilled global talent for the benefit of your organisation.
New UK immigration rules from 2021 FAQs
What are the new UK immigration rules?
From 1 January 2021, under the UK's new immigration system, all non-UK residents will have to apply for a visa to live, work and study in the UK. UK employers will have to hold a sponsor licence to hire skilled migrant workers who attain enough points under the new rules.
How do I apply for a UK visa without a sponsor?
Under the UK's new immigration system, all EU and non-EU citizens coming to the UK from 1 January 2021 will require a visa to work, live and study in the UK. A number of work visa routes are available to those who meet the eligibility criteria, such as the Global talent visa which does not require sponsorship.
Last updated: 20 September 2020