As businesses in the UK adjust to the reality of the new post-Brexit immigration system, employment lawyer Tessa Robinson from law firm Furley Page examines the main points that businesses need to consider when hiring workers from overseas.
“The new immigration system came into force on 1 December 2020 and, from 1 January 2021, EU and non-EU nationals will be treated equally. Under the EU Settlement Scheme, any EU-nationals that entered the UK prior to 30 December 2020 have until 30 June 2021 to apply for pre-settled or settled status. This will be the easiest way to enter the UK if an individual plans to work in the UK on a permanent basis.
“However, looking to the future the immigration system has changed in some important ways, and businesses need to consider the implications of the new rules if they are considering employing individuals from overseas.”
Right to work checks
The law on right to work checks has not changed, and the checks must still be completed prior to an individual starting work.
The guidance is clear that businesses do not need to make retrospective right to work checks on EU, EEA or Swiss nationals, so as long as the employee arrived in the UK before 30 December 2020, a check on the employee’s passport or ID card will be sufficient to prove their right to work in the UK, up until 30 June 2021. Such individuals do not need to show evidence that they have applied for pre-settled or settled status.
“After the 30 June 2021 an individual would need to demonstrate they have the right to work in the UK. However, given the guidance states that retrospective checks are not required, many employers are taking the view that you will not need to check after 30 June 2021 whether pre-settled or settled status has actually been granted.
“However, we are hoping for further clarification on this point as employers are concerned that if an individual is refused pre-settled or settled status, they will be employing someone illegally.
“New employees who start work after this date will need to show they have the right to live and work in the UK, such as by showing they have been granted pre-settled or settled status.”
Business Visits to the UK from 1 January 2021
Government guidance states that EU, EEA and Swiss nationals can visit the UK for up to six months without a visa but this is intended for one-off visits and the individual does not have a right to work in the UK. To carry out any type of business activity, an individual will require a ‘visitor visa’.
“If an individual uses this non-visa visitor route repeatedly, rather than applying for a visitor visa, the Home Office will likely refuse an individual entry. However, if there is a delay in obtaining the visa, this non-visa route can be useful for a one-off visit.
“Individuals who expect to visit the UK for work more than twice in a 12-month period should opt to pay for at least the six-month visitor visa from the outset, which currently costs £95. It is important to recognise that the individual cannot be paid by the UK company under this route as the permitted activities are limited.”
The applicant needs to be able to demonstrate they have enough funds to cover accommodation and return travel (either being paid for by themselves, or their non-UK based employer). Any expenses paid by the UK company can be deemed payment and must be limited to genuine day to day expenses such as short taxi rides.
Applications for these visas can be made no more than 3 months in advance, and must be made more than 48 hours in advance.
Points Based System for Skilled Workers
Applications under the new points-based system for skilled workers opened on 1 December 2020.
“An employer will need a sponsor licence for an individual to apply to work in the UK under this scheme. It is unclear whether the skilled worker route will completely replace the Tier 2 (General) classification, but it is anticipated that this is likely.
“However, there will still be the Tier 2 (Intra-Company Transfer) route available, with updated requirements (the individual will need to be in a role which meets certain requirements in relation to length of service and the minimum salary requirement) to be able to apply, and it is not a route to settlement in the UK.
The new Immigration Rules can be accessed via the Government’s website: https://www.gov.uk/guidance/new-immigration-system-what-you-need-to-know
For advice and support about a range of employment and immigration law issues, please contact Tessa Robinson on firstname.lastname@example.org or call 01227 763939. You can also follow the firm on Twitter @furleypage and on LinkedIn.
You can also follow the firm on Twitter @furleypage and on LinkedIn.