Article:

Post-Brexit - Immigration rules from 1 January 2021

03 November 2020

The Brexit transition period ends on 31 December 2020, and with it comes the end of freedom of movement. From 1 January 2021 a new immigration system comes into play and no longer will EU, EEA and/or Swiss nationals be allowed to move to the UK and work without a visa.

Under the new system, all foreign nationals will be treated equally, excepting Irish citizens. Irish citizens will remain free to work in the UK without a visa.

EU, EEA and Swiss citizens who come to live in the UK prior to 1 January 2021 should do so under the current rules. They and their families then have the right to apply for the EU settlement scheme and this must be done by 30 June 2021. The EU settlement scheme will give these individuals the right to live and work in the UK without the additional visa requirements.

New Points-Based Immigration System

The new system is described as a ‘points-based’ system. However, each visa category will have a fixed set of requirements to meet, albeit there are ways in which certain requirements (points) can be traded.

Skilled workers

The current Tier 2 (General) visa category will be replaced by a new ‘Skilled Worker’ category. The requirements under this are as follows:

  • The job offered must be at skill level RQF3 or over (this is equivalent to an A-level)
  • The prospective employee must speak English
  • The sponsoring employer must pay a salary of £25,600 or the going rate for the job (whichever is higher)
  • Minimum salary can be reduced to a minimum of £20,480 if able to ‘trade’ points based on certain specific characteristics, for example if it’s a ‘shortage occupation’ or if the individual has a relevant PHD.

It will be possible to switch into the Skilled Worker route from most other visa categories without having the employee to leave the UK. Employers should also note that many occupations not currently qualifying for a Tier 2 (General) visa will qualify for a Skilled Worker visa. This includes office managers, sales executives, IT support technicians, estate agents, chefs, electricians, plumbers, etc.

As with existing Tier 2 visas, employers wishing to hire foreign nationals in the Skilled Worker category will need a sponsor licence, so employers who have never sponsored anyone for a work visa will need to apply to be a sponsor. We recommend this is done as soon as possible and professional advice is sought so that you are aware of your duties as a sponsor.

Low-skilled jobs

There is to be no visa category for designated low-skilled jobs which will be a blow to certain industries. The only people allowed to do deemed low-skilled jobs will be British citizens, Irish citizens and other individuals with the right to work in the UK (for example, those with settled or pre-settled status).

Impact on employers and staffing considerations

The new rules are beneficial to employers of skilled non-EU, non-EEA and non-Swiss foreign nationals. This is because, compared to the current Tier 2 (General) visa, the new Skilled Worker visa is easier to get, the residence labour market test has been abolished and both the minimum skill and minimum salary levels have been lowered. In addition, there will no longer be an annual cap of the number of work visas which can be issued.

The residence labour market test currently in place requires employers to hire qualified EEA applicants in priority to non-EEA applicants, even if the employer deemed the non-EEA candidate better suited for the role. Not only is this test scraped, but the new policy goes so far as to require employers to not indirectly discriminate against candidates who are not UK nationals. All candidates must be considered equally without reference to their immigration status, and the cost of applying for a skilled worker visa would not be considered an objective justification. Employers must, therefore, make sure that their recruitment policies are updated to reflect this change and do not favour those with the pre-existing right to work in the UK.

Employers will need to budget for the increased cost and administration related to hires from the EU, EEA or Switzerland. The cost to be charged by the government is understood to be the same as that for a Tier 2 (General) visa. In addition in October 2020 the Immigration Health Surcharge will increase from £400 per year to £624 per year.

Secondees

Employers with secondees from the EU, EEA or Switzerland will also need to factor in the increased cost and administration of visa procurement. In addition, minimum skill and salary packages also need to be considered.

The Tier 2 (Intra-company Transfer) visa category will be renamed simply Intra-company Transfer (ITC), however, the skills threshold and overall minimum salary will remain the same at RQF level 6 and £41,500 respectively. The ICT route can be handy where a requirement of the Skilled Worker visa is not met, for example English language.

Companies are, however, able to apply for the Skilled Worker visa instead which has lower skill and salary thresholds. A benefit of alternatively having secondees on a Skilled Worker visa is that time spent in the UK under the Skilled Worker visa counts towards the five-year residence requirement for settlement. This will be welcome news for employers who are often asked to localise their expats and allows employers to introduce greater flexibility into their global mobility strategies.

Finally, employers should encourage all relevant staff to apply for pre-settled or settled status by the deadline (30 June 2021). If you will be transferring EU, EEA or Swiss citizens to the UK in the near future, this should be done by 31 December 2020 if at all possible so that they qualify for the EU Settlement Scheme.

For help and advice on international assignment issues for employers please contact [email protected] or Karen McGrory.