FAQs for Employers on the New UK Immigration System

Introduction

The UK implemented a new points-based immigration system on 1 December 2020.  The system allows employers to recruit people to work in the UK in a specific job in an eligible skilled occupation.  This aligns with the end of free movement for EU, EEA and Swiss nationals ("EU nationals").

If an EU national was not resident in the UK by 31 December 2020, n most circumstances, they will need to meet visa requirements in order to work or study in the UK from 1 January 2021.

Now that the system has been in place for a number of weeks and free movement has ended, we are looking at the points businesses need to consider when recruiting non-UK nationals to work in the UK.

1) What action should I take to continue recruiting from overseas, including the EU?

While some EU nationals may have obtained status under the EU Settlement Scheme and will not require a visa, this will be a limited group of people and employers who do not yet have a sponsor licence are likely to need to apply for one, if they wish to continue to recruit EU nationals. If so, you should consider applying for one as soon as possible as sponsor licence applications can take 6-8 weeks to process.If your business already has a sponsor licence, given that you are likely to need to use this more regularly to sponsor EU nationals, you should take this opportunity to ensure that this is up to date with the details of the personnel within your company who are responsible for the licence and that it reflects the organisation's current structure. You should also ensure that there are adequate HR systems and processes in place and that the relevant staff are sufficiently trained in these. This is vital so that you do not fall foul of the strict requirements of sponsor licencing.

 You will also need to budget for the additional costs of sponsorship.  Visa fees can range between around £5000 and £10,000 per application.  The run up to the new tax year is an important time many businesses to review their budget for immigration and to identify where your workforce will be.

2) Can I continue to send EU nationals to the UK for business visits?

From 1 January 2021, EU nationals no longer have free movement rights. However, they are considered to be 'non-visa nationals'. This means they can enter the UK as a visitor for a limited period without first applying for a visa.  However they will be considered to be requesting entry on arrival and if the UK Border Force considers that they are intending to work and require a visa, they can be refused entry on arrival.

Visitors are subject to restrictions on the activities that they can undertake in the UK. For example, they must not intend to take employment; undertake work; establish or run a business as a self-employed person; do a work placement or internship; sell directly to the public; or provide goods and services. 

Whilst EU nationals can still rely on their passports as proof of their right to work between January and June 2021, there have been incidences of EU nationals being refused entry at the UK border since January 2021 on the basis that they are not eligible for the EU settlement scheme and therefore require a visa to work in the UK before they can enter for work purposes.

There is specific guidance regarding which activities business visitors can and cannot undertake while in the UK.  There are often grey areas and we suggest seeking legal advice if you have any doubt as to whether the activity and duration of stay are permitted for business visitors. Employers may be subject to a civil penalty of up to £20,000 per illegal worker if they are considered to be employing an illegal worker in the UK.  

3) Who can I sponsor under the new system?

The UK's new immigration system is more flexible than before.  Key changes to the system have included an overhaul of the sponsored route for skilled workers and the new Graduate route opening in summer 2021, which enables international graduates to remain in the UK for an additional 2 years to work.
We look at some of these changes and how these have been impacting on employers.

Skilled worker

This route has replaced the Tier 2 (General) route. 

The key changes to this route have been:

• The minimum skills threshold has been lowered from RQF Level 6 (equivalent to degree level) to RQF Level 3 (equivalent to A-level) 
• The minimum salary threshold has been reduced from £30,000 to £25,600. The migrant will still need to meet the minimum threshold specific to the occupation
• The Resident Labour Market Test has been scrapped
• It is possible to 'switch' into the Skilled Worker category from many additional categories, including the Intra-Company Transfer and Tier 5 Youth Mobility categories
• It is permitted to continue to extend in the Skilled Worker category indefinitely.
• There is no"cooling-off period", which when in force prevented someone from reapplying for 12 months after leaving the UK in this category.   In the following circumstances, employers can pay lower than the overall minimum salary of £25,600 as long as they pay at least the minimum salary threshold of £20,480.
• Where the applicant has a PhD in a subject relevant to the job.  The salary must be at least:
  •  £23,040 per year, and
  • 90% the going rate for the occupational code;
• Where the applicant has a PhD in a STEM subject relevant to the job. The salary must be at least:
  •  20,480 per year; and
  • 80% of the going rate for the occupation code
• Where the applicant has a job in a shortage occupation. The salary must be at least
  • £20,480 per year, and
  • 80% of the going rate for the occupation code
• Where the applicant is a new entrant to the labour market. The salary must be at least
  • £20,480 per year; and
  • 70% of the going rate for the occupation code;
• Where the job is in a listed health or education occupation. The salary must be at least
  • £20,480 and (ii)
  • meets the going rate for the occupation code.

Individuals who are currently sponsored under the Tier 2 (General) route do not need to take any action. 

Intra-Company Transfer (ICT)

There have been no changes to the minimum skill and salary requirement in the ICT route and only degree level roles at RQF level 6 are eligible, with a minimum salary of £41,500 or the rate stated in the occupational code (whichever is higher).

The 'cooling off' period that previously applied to the Tier 2 (ICT) route has become less restrictive. If the applicant is a high-earner (earning £73,900 or above), their immigration permission in the ICT route should not exceed 9 years in any 10-year period. If the applicant is not a high earner, their immigration permission should not exceed 5 years in any 6-year period. This takes into account all previous permission on the ICT route.

The ICT route does not allow individuals to settle in the UK. However, individuals can now switch into the Skilled Worker route from within the UK.

What has this meant for employers in practice?

Consider an employer wishing to hire promising candidates in junior roles such as a junior sales executive or analyst, but where they do not have a degree or have little work experience, and where the salary is at entry level.  Whereas previously the salary and skills level may have been too high, under the new system sponsorship may be a viable option for both EU and non-EU nationals.

Due to the end of free movement, the pool of labour from the EU may have dried up as EU nationals move to other countries without visa restrictions.  Employers who relied on EU national workers to fill both highly skilled and medium skilled roles, from scientists to bricklayers, may now look to non-EU national workers to fill those roles, where they did not previously need to, or where they could not due to the high skills and salary levels. 

However, for some employers sponsorship will still not be a viable option to plug their skills gaps.  In particular, for those who previously relied on EU national employees, contractors and sub-contractors to carry out work in medium or lower skilled roles, such as welders, carpenters and sales assistants, the barriers to sponsorship are prohibitive.  For example, as mentioned above, the costs are substantial and for some companies signing contracts to service customers in the UK, such additional costs would render the deal unprofitable. 

In addition, some EU national workers would not have the English language ability to pass the mandatory intermediate level English language test in speaking, listening, reading and writing. As the ICT route still remains closed to medium-skilled roles, sponsorship remains closed to those groups. 

4) What is the global talent route?

The global talent route aims to recruit individuals who are highly talented in arts and culture, architecture, fashion design, film and television, digital technology, science, engineering, humanities and medicine. The route is divided into the exceptional talent route for established leaders in their fields, and the exceptional promise route for potential leaders in their field. Those individuals must demonstrate that they are recognised as being established or potential leaders in their field.

Applicants for the global talent route are required to secure an endorsement from an approved endorsing body before making an application.

5) Will I need to change the way I approach right to work checks?

All employers in the UK have a responsibility to prevent illegal working. Before employing someone, employers must ensure the individual has the right to work in the UK.

Right to work checks must be carried out before an individual starts their first day of employment.  Checks can be completed in-person and online. 

For any EU nationals that you employ already, you can still use their passport and national identity card until 30 June 2021.  However this means that employers could unknowingly employ someone who does not or may soon not have the right to work in the UK. Employing an illegal worker without having a statutory excuse in place can lead to civil penalties of up to £20,000 per illegal worker, criminal penalties and in some circumstances serious reputational damage. It is therefore vital that any UK employer has appropriate systems in place to prevent illegal working and that these are properly implemented.

Businesses have a duty not to discriminate against any current or prospective employee.  You cannot make an offer of employment or continued employment dependant on the individual applying to the EU Settlement Scheme. 

Our immigration team is able to advise if you have any concerns regarding the position on new EU national hires from January 2021 and their right to work.

6) Is it too late for my employees to apply for the EU Settlement Scheme?

The EU Settlement Scheme is still open to those who arrived in the UK before 31 December 2020. The deadline for applications is 30 June 2021, after which the Scheme will close.

EU nationals that arrived in the UK after 1 January 2020 who are not already eligible to apply for the EUSS will require permission to work or study in the form of sponsorship.

Employers should encourage staff where possible to apply to the EU Settlement Scheme before the 30 June 2021 deadline.   If they fail to apply, they may lose their right to live and work in the UK.  This would have significant repercussions for the individuals and may result in significant costs for your business.

If you have not already done so, you should notify employees of the need to apply and the deadline and we recommend offering support for those who need it.

For those living outside the UK who have been traveling to the UK to carry out temporary work, you may wish to consider whether the frontier worker permit would be a suitable option.