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The end of free movement: what employers need to know

18 February 2021

Poppy Lucas looks at the major overhaul to the Immigration Rules following the UK’s departure from the EU and the significant implications for UK employers.

  1. Free movement within the EU

With effect from 1 January 2021, free movement has ended in relation to the UK. EEA and Swiss nationals (except Irish nationals) and those from outside the EU and EEA who enter the UK to work are likely to need a visa.

This will have a significant impact on all employers, particularly those employing European nationals. It also means that British nationals no longer benefit from the right to work in Europe without restrictions.

Businesses should ensure that they understand the news rules, and that their staff have the appropriate right to work in the UK. These changes will also impact upon short term visits for business purposes.

  • EEA and Swiss nationals entering the UK before 31 December 2020

EEA nationals and their family members who have been residing in the UK before 31 December 2020 can apply under the EU Settlement Scheme to continue living and working in the UK. The deadline to apply is 30 June 2021. Applicants must have been living in the UK by 31 December 2020. Applications submitted under the EEA Settlement Scheme are usually submitted online and there is no fee.

Settled Status

  • Those EEA nationals who have been living in the UK for a period of at least five continuous years can apply for settled status, which if granted will enable them to stay and work in the UK indefinitely.

Pre-settled status

  • EEA nationals who were resident in the UK by 31 December 2020 but had not been continuously resident in the UK for at least five years can apply for pre-settled status. This is usually granted for a period of five years.

An individual is generally considered to be ‘continuously resident’ in the UK if they have been present in the UK for at least six months in any 12 month period. Absences from the UK for longer than six months in any 12 month period will usually break continuity.

If an application is not made under the EU Settlement Scheme prior to 30 June 2021, eligible EEA nationals risk losing their right to live and work in the UK and would have to apply under the points-based immigration system for a visa.

  • EEA and Swiss nationals arriving in the UK after 31 December 2020

These individuals and their family members will not be able to apply under the EEA Settlement Scheme. Instead, they will need to apply under the points based system to live and work in the UK.

  • Irish nationals

Irish nationals will continue to have the right to live and work in the UK and do not need to apply for settled or pre-settled status or for sponsorship under the Immigration Rules.

  1. New rules for those wishing to work in the UK

New rules now apply to  both non-EEA nationals and EEA nationals who do not have settled or pre-settled status and to their family members.

A number of new visa categories have been created under which applicants will have to meet specified requirements. Points are allocated for each attribute met.

A new ‘Skilled Worker’ route will replace old the Tier 2 (General) route which allows for work permits to be issued to those not otherwise eligible to live and work in the UK.

Employers wishing to hire foreign nationals in the Skilled Worker category will need a sponsor licence.

Some of the changes under this new Skilled Worker route will be welcomed by employers, in particular:

  • The requirement to advertise a role in the UK before recruiting someone who will require a visa (the Resident Labour Market Test) has been abolished making sponsorship easier, although evidence of recruitment does still need to be maintained for compliance obligations;
  • The cap on the overall number of sponsored migrants has been suspended;
  • The role must be at the skill level of RQF 3 (A-level equivalent) rather than RQF 6 (degree level), therefore broadening the roles from graduate occupations to those requiring a skill level equivalent to A-levels;
  • It is now possible for most individuals to switch to Skilled Worker status if they are already in the UK under another visa category;
  • While some requirements have been relaxed, there are some onerous new duties for sponsors such as additional reporting obligations of changes within the organisation or in respect of the sponsored worker’s role.

Business visits

Under the EU-UK Trade and Cooperation Agreement (TCA), a reciprocal arrangement has been agreed in respect of short-term travel following Brexit. In essence, EEA nationals will be able to travel freely to the UK (and vice versa) so long as the stay does not exceed 90 days in any 180 day rolling period and only permitted activities are carried out – these are very limited and include: attending meetings and conferences; marketing research; training seminars; trade fairs and exhibitions.

If the individual wishes to carry out work in the UK, it is likely that a visa will be required.

  1. What employers need to know

Existing employees

  • Employers of EEA nationals should ensure that such employees are aware of the EU Settlement Scheme and should provide relevant information about the application process and the deadlines to ensure that these are not missed.
  • It is important that applications are made by 30 June 2021. If not, an EEA national who does not have any other right to work in the UK, will not be legally entitled to work in the UK from 1 July 2021. It may not be possible therefore to continue to employ them to work in the UK after this date.
  • Employers currently holding a sponsor licence should ensure that it is still valid and that the key personnel are aware of and compliant with the updated sponsorship duties.
  • Certificates of Sponsorship should be reviewed – employers may wish to apply to increase their allocation of CoS to account for future sponsorship.
  • Sponsors should familiarise themselves with the new Immigration Rules and the revised categories – it may be appropriate for employees in other immigration categories to now switch to the Skilled Worker category.

Future employees

  • We would encourage employers to apply for a sponsor licence now if it is likely they may need one in the future. There is likely to be significant demand for licences and the processing times may be further delayed so applications should be made without delay. The application process itself is time consuming and requires considerable preparation.
  • Prior to applying for a sponsor licence, employers should be aware of the various sponsorship duties and obligations and consider who would be appointed as the key personnel – failure to comply can lead to a licence being downgraded or revoked.
  • Employers will need to factor in the additional cost of hiring a Skilled Worker under the Immigration Rules – such costs would not previously have been payable in respect of employing EEA nationals. It costs thousands of pounds to sponsor a migrant worker under the Skilled Worker route so budgets will need to be reviewed accordingly.
  • Employers will also need to allow more time for the recruitment of EEA nationals to work in the UK due to the visa process required.
  • Employers should ensure that any employees required to make visits to or from the UK understand the limits of the business visitor rights. They should carry with them proof of the purpose of their visit including letters of invitation to meetings or other events .
  • Right to work checks should still be conducted but employers should be aware that there is a ‘grace period’ for the checking procedure for EEA and Swiss nationals who start work between 1 January–30 June 2021. Employers can continue to use passports and national identity cards as evidence of an individual’s right to work in the UK until 30 June 2021.
  • EEA and Swiss nationals are not required to share their settled or pre-settled status prior to 30 June 2021. This may present an issue for employers with new starters between 1 January and 30 June 2021, as they may not know if the employee was already in the UK before 1 January 2021, and therefore whether or not they require a visa.

We would be happy to provide further detail and advice on any of the points raised above, or indeed in respect of any aspect of immigration law. You can contact either Yvonne Gallagher here or Poppy Lucas here.

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