Immigration and employment law update

The UK is in the transition period as it leaves the European Union. On 1 January 2021, the transition period will end, and this means big changes for business. From 1 January 2021, the UK will introduce a new system of immigration control. For the first time in decades, EU/EEA and Swiss nationals will be subject to the same immigration controls as non-EEA nationals.

Right to work

If your business currently employees EU/EEA or Swiss citizens, they must apply for either Settled or Pre-Settled status under the EU Settlement Scheme. It is in the interests of business owners to ensure that all affected employees have the right to work in the UK so that they can continue to be legally employed.

Until 30 June 2021 Employers will continue to be able to confirm an EEA national’s right to work using only their passport or national ID card. From 1 July 2021, employers must see proof of immigration status either from the EU Settlement Scheme or from the new immigration system. With the deadline for applications approaching, it is imperative that this process is now completed. This is an issue to be handled sensitively by employers; an employer is obligated to ensure that their workforce each has the appropriate right to work in the UK, but should be aware that employees are not obligated to disclose whether they have applied for Settled or Pre-Settled Status for fear of discrimination. It is an employer’s duty to keep copies of right to work documentation and ensure that they keep their records up to date.

Will you need a sponsor licence?

From 1 January 2021 employers will need a sponsor licence to employ anyone who does not hold British citizenship or who does not have Indefinite Leave to Remain. This is a significant extension of the current rules whereby a sponsor licence is not required for employing EU citizens.

Where it is commonplace for UK business to employ EU citizens, the Home Office is anticipating an influx of applications for sponsor licences and are actively encouraging business to pre-plan and submit their applications well in advance of the 31 December deadline.

The current processing time for a sponsor licence application is estimated at 10 weeks from the date that the supporting document pack is received. It is important to recognise that, even though your business might not have a current need for a sponsor licence, it is beneficial to take a pre-emptive approach to this. If it is foreseeable that any individuals of foreign citizenship will be brought into your business, then you should consider making your application as soon as this potential need is identified so that your business has the essential infrastructure in place to aid the recruitment process.

Skilled worker visas

The current Tier 2 (General) and Tier 2 (Intra-Company) visas are going to be replaced with the Skilled Worker Licence and the Intra Company Transfer Licence. Individuals applying for the new visa routes will need to satisfy the pre-requisites set by the Home Office. Whilst the need to fulfil certain criteria when applying for a visa is not new, the biggest change to the system is the nature of the criteria and the way that these are assessed. Using the points-based system means that different job roles will be allocated different amounts of points as well as the salary level and English language requirements that must be satisfied, again different levels will be awarded different points. Employers and businesses will need to ensure that, where they are looking to sponsor a migrant worker, the job role is appropriately placed to satisfy the Skilled Worker requirement and that they have the relevant sponsor licence in place and are able to successfully support their employee’s visa application.

Shortage occupation list reviewed

The Migration Advisory Committee has reviewed, and added to, the Shortage Occupation List. This is in anticipation of a deficit workforce being identified after the freedom of movement from the European Union ceases on 31 December 2020. Some of the new occupations included in the list are; senior health and social care workers, butchers, bricklayers, electricians, welders and graphic designers. The most noticeable effect of the enhanced list of shortage occupations will be felt when the points-based immigration system is introduced on 1 January 2021, enabling those working in shortage occupations to more easily gain the required points to satisfy the visa application requirements.

Planning ahead

If you are not already a licensed sponsor and you think you will want to sponsor EU/EEA and Swiss employees who arrive in the UK through the skilled worker route from January 2021, you should apply now. Price Bailey is well placed and highly experienced in providing advice and assistance on making a Sponsor Licence application. Please get in contact with the team if you would benefit from discussing the next steps for your business.

This article was written by Claire Berry, an Employment Solicitor at Price Bailey. If you have any questions or require any assistance, you can contact Claire and the employment team on the form below.

We always recommend that you seek advice from a suitably qualified adviser before taking any action. The information in this article only serves as a guide and no responsibility for loss occasioned by any person acting or refraining from action as a result of this material can be accepted by the authors or the firm.


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