New Immigration Rules post Brexit – recruiting from overseas from 2021

Recently, Home Office published further details in relation to the new UK’s Points-Based immigration systems post-Brexit.  In a nutshell, employers wanting to recruit from abroad, whether it is from the European Union (EU) or the rest of the world, will be required to either hold a sponsor licence or to ensure that those workers can demonstrate their right to work here.  Nevertheless, it will be much easier for employers to sponsor migrants as new hires from January 2021.

The UK officially left the EU on 31 January 2020.  Provided there is no extension to the transition period, freedom of movement between the UK and EU will end on 31 December 2020, at 11pm.  As of 1 January 2021, employers wanting to recruit from abroad, whether from the EU or the rest of the world (apart from Ireland) will need to comply with the new immigration rules and right to work checks to avoid the significant civil and criminal penalties imposed for breaching legislation.

Currently EU, EEA and Swiss nationals, and their family members, (i.e. ‘EU nationals’) are free to live and work in the UK without being subject to any immigration restrictions.  Whilst employers need to check EU nationals’ right to work in the UK, a passport or national identity card currently satisfies the employer’s right to work check.  EU nationals, living in the UK prior to 31 December 2020, can continue to rely on those documents to evidence their right to work in the UK until 30 June 2021.  EU nationals wanting to stay and work in the UK beyond 30 June 2021 will need to apply for status under the EU Settlement Scheme (EUSS).

Non-EU nationals, on the other hand, cannot work in the UK unless they have a visa and are sponsored by their employer.  In order to sponsor a non-EU national, employers must hold a sponsor licence.  Employers wanting to obtain a licence must submit an application to the UK Visas & Immigration (UKVI) by enclosing the correct supporting documents and paying a relevant fee.

In order to obtain or retain a sponsor licence, the organisation needs to meet eligibility and suitability criteria.  In other words, the organisation must provide evidence that it is genuine and has operating or trading presence in the UK, have appropriate recruitment systems or human resources in place to manage and monitor its employees.

Currently, the two main types of sponsored visas are Tier 2 (General) and Tier 2 (Intra Company Transfer) for non-EU nationals.  Whilst the former is being replaced from 1 January 2021, the latter remains, and will be subject to some changes to the way it operates.

Notably, as of 1 January 2021, anyone from outside the UK or Ireland working or coming to work in the UK, will need to obtain a visa.  EU nationals arriving in the UK after 1 January 2021, or who have not applied under the EUSS by 30 June 2021, will also need a visa and a sponsor in order to work in the UK.  The good news is that, both, EU and non-EU nationals, who are entitled to work in the UK, will be able to demonstrate that right via an online service.  This online service (operational since January 2019) simplifies employers’ right to work checks by removing the need for a physical document check.

Work visa routes available from 1 January 2021

As of 1 January 2021, the two key work visa routes available for anyone from outside the UK or Ireland (including EU nationals) will be a ‘Skilled Worker’ visa (to replace the current Tier 2 (General)) and a Tier 2 (ICT) visa.

Skilled worker route

Essentially, applicants will need to pass the relevant UK criminality checks and:

• to have an offer of a job from a licensed sponsor;
• the job must be at or above the minimum skill level: RQF3 level or equivalent (A-level or equivalent qualification) and
• speak English to an acceptable standard.

In addition, workers under this new route will have to be paid at least £25,600 (significantly lower from current £30,000) or the absolute minimum of £20,480 (for certain roles in the NHS or in the education sector or if the individual has a PhD relevant to the job or if the individual is working in a shortage occupation).

There will be no limit on the number of Skilled Worker visas which may be granted under the new system because the annual cap on Tier 2 (General) visas will be removed.

The Resident Labour Market Test will be removed, which means that employers will no longer be required to advertise the vacant role to the national workforce.

Tier 2 (ICT) visa

This route, basically created for intra-company transfers and graduate trainees, aims to accommodate temporary moves by key (highly skilled) business personnel, enabling multi-national companies to move their workers between subsidiary branches.  The Tier 2 (ICT) route will be maintained post 31 December 2020 but with some important changes, such as:

• the ‘cooling off’ rules will be relaxed – ‘the cooling’ off rules will only apply if the transferee has had more than five years’ leave under Tier 2 (ICT) in any 6-year period; and
• a potential for a Tier 2 (ICT) visa holder to ‘switch’ into a Skilled Worker visa route, without having to leave the UK.

Conclusion

Whilst ending free movement for EU nationals and the introduction of the new immigration rules will have a significant impact on UK employers who recruit from abroad.  It will be much easier to recruit new migrants from January 2021 as the rules will be more relaxed.

There is still time to prepare ahead of these changes.  Employers are strongly recommended to identify the number of EU nationals they employ and encourage those EU nationals (who have not yet done so) to make their EUSS applications.  It is also crucial to get the process of obtaining a licence underway now.  In our second article we set out how you can apply for a sponsor licence.  There is likely to be a significant influx of applications at the beginning of 2021, so employers should think about applying now.  If you leave it until next year, you may incur significant delays which may affect recruitment or retention of key staff, which may damage revenue and strategic growth plans.

If you have any further questions about the contents of this article or if you need assistance on inbound immigration to the UK, please contact [email protected]