Brexit developments

1 January 2021   New, points-based immigration system comes into force

30 June 2021       Extended deadline for EU Settlement Scheme (EUSS) applications for EU/EEA/Swiss
                              citizens who were in the UK before 11pm on 31 December 2020

1 July 2021          Employers required to check whether their EU/EEA/Swiss members of staff
                              have the right to work in the UK, including through the EUSS

EU citizen workers and people policies

There is no mandatory requirement for employers to undertake retrospective checks on EU citizens who were employed on or before 30 June 2021. Employers will maintain a continuous statutory excuse against a civil penalty should a worker not have the correct status, as long as they have conducted a compliant right-to-work check at the start of employment.

Employers should remind EU citizen employees that if they do not have settlement status or the relevant visa, they may lose their right to live and work in the UK. While the deadline for EU/EEA/Swiss nationals and their families to apply for settled or pre-settled status under the EU Settlement Scheme (EUSS) was 30 June 2021, an extension could apply in certain circumstances or if 'reasonable grounds' can be shown for not applying by 30 June. Point to where they can check the eligibility criteria to see if they can still apply.

Irish nationals do not need to apply for settlement status to travel to or to live and work in the UK by virtue of the Common Travel Agreement (CTA).

EU/EEA/Swiss citizens who were in the UK before 11pm on 31 December 2020 would be eligible for settlement status through the EU Settlement Scheme (EUSS). Settled status is given to those who have lived continuously in the UK for five years and enable the holder to remain in the UK indefinitely. Pre-settled status is given to those who do not yet have five years’ continuous residence. Individuals with pre-settled status can apply for settled status after they have accrued five years’ continuous residence. The deadline for status applications under the EUSS was 30 June 2021, but an extension could apply in certain circumstances or if 'reasonable grounds' can be shown for not applying by 30 June. Check the eligibility criteria to see whether this applies. 

Irish nationals do not need to apply for settlement status to travel to or to live and work in the UK by virtue of the Common Travel Agreement (CTA).

No, it is possible for applicants to apply from the EU but they must meet the eligibility requirements of the scheme.

Yes. Have this conversation with your employee’s welfare in mind. Brief your managers to have a simple one-to-one conversation with their team member to find out how they are feeling currently about the situation. Ask if settlement status has been applied for, for them and their family and provide the offer of help to navigate the process and complete the online application. Refer to the CIPD’s Employers’ legal guide to post-Brexit immigration for step-by-step details.

From 1 July 2021, employers will need to check if new employees have the right residency status to work in the UK. Employers do not need to retrospectively check if EU citizen employees who were employed before 1 July 2021 have settlement status, so long as they have conducted a compliant right-to-work check at the start of employment. However, employers should communicate with employees in this category to remind them if they do not have settlement status or the relevant visa, they may lose their right to live and work in the UK. An extension to apply for settlement status under the EUSS could apply in certain circumstances or if 'reasonable grounds' can be shown for not applying by 30 June 2021. Prospective applicants can check the eligibility criteria to see if they can still apply.

Irish nationals do not need to apply for settlement status to travel to or to live and work in the UK by virtue of the Common Travel Agreement (CTA).

EU citizen staff who were already in the UK before 11pm on 31 December 2020 can continue to work without needing to show settlement status until 1 July 2021.

EU citizens who are entering the UK for work for the first time now will need to meet the UK’s post-Brexit migration requirements.

Irish nationals do not need to apply for settlement status to travel to or to live and work in the UK by virtue of the Common Travel Agreement (CTA).

Those employees will have no immigration status and would be prevented from starting a new job or retaining their existing one. Other hostile environment controls would also apply, for instance, limited access to health care, or being prevented from renting a flat.

Because the consequences of not having immigration status are severe, employers should communicate with employees in this category to remind them if they do not have settlement status or the relevant visa, they may lose their right to live and work in the UK. An extension to apply for settlement status under the EU Settlement Scheme could apply in certain circumstances or if 'reasonable grounds' can be shown for not applying by 30 June 2021. Prospective applicants can check the eligibility criteria to see if they can still apply.

Irish nationals do not need to apply for settlement status to travel to or to live and work in the UK by virtue of the Common Travel Agreement (CTA).

People movement

From now on, you may need to support UK employees travelling to the EU to work to apply for relevant visas and permits in specific EU countries, even if working only for a few days. Check what the  entry requirements or necessary documents are and have them ready before travelling. 

EU/EEA/Swiss employees who have acquired settlement status under the EU Settlement Scheme or who otherwise have the relevant visa permission to live and work in the UK can continue to travel and work in the EU and UK. If they do not have settlement status and are not eligible to apply for it, EU/EEA/Swiss employees travelling to the UK will need to comply with the new business visitor rules. The UK no longer accepts national ID cards for entry to the UK for EU/EEA/Swiss citizens.

Post-Brexit immigration and recruitment

EU/EEA/Swiss citizens (except Irish citizens) are now subject to the same migration requirements as non-EU citizens. The UK’s post-Brexit immigration system is designed to facilitate the entry of skilled workers, excluding people who will enter to take low-skilled work.

For employers, there are two main routes for sponsoring non-UK citizens to work in the UK:

  • Via the Skilled Worker route, under which a prospective employee must score a total of 70 points based on various skill and salary requirements to qualify.

  • Through an Intra-Company Transfer (ICT), which allows employers to sponsor existing employees of an overseas entity and send them to the UK on assignment. This is also subject to minimum skill and salary requirements.

For details of the requirements and guidance on how to apply, refer to the CIPD’s Employers’ legal guide to post-Brexit immigration.

Both routes require sponsorship, but the Skilled Worker category is intended for people who speak English, are in an RQF3-level role and normally paid at least £25,600. After five years they can apply for indefinite leave to remain.

The ICT category is for temporary assignments. Workers should be in a degree level job and normally paid at least £41,500. They are normally limited to five years' stay.

The Skilled Worker category will tend to be preferable for employers but the ICT category can be useful where a person cannot prove English-language capability.

GCSE skill level jobs and below are not covered by the Skilled Worker category. Jobs below degree level are not covered by ICT.

Apart from the Skilled Worker or Intra-Company Transfer visas, other visa categories exist that allow non-UK and non-Irish citizens to work in the UK. For a detailed list, refer to the Appendix of the CIPD’s Employers’ legal guide to post-Brexit immigration.

A new Graduate route to allow international students to remain in the UK to work after their studies has come into operation from 1 July 2021. Applicants must have completed a Bachelor’s degree or higher in the UK. If approved, they may stay for a maximum period of 2 years (or 3 years for Doctoral students) and work at any skill level. Applicants may then apply to switch into a permanent work route for a suitable job – namely the Tier 2 Skilled Worker route. The Graduate route is a new scheme which should be considered in addition to the routes covered in the abovementioned Employers' legal guide to post-Brexit immigration.

Employers will need to be aware of the costs involved in recruiting non-UK workers via the Skilled Worker or Intra-Company Transfer routes. These include:

  • A sponsorship licence to recruit non-UK nationals. The current cost for a sponsor licence is £1,476 for medium and large businesses and £536 for small businesses or those with a charitable status.

  • An Immigration Skills Charge. Sponsors must pay £1,000 per year per sponsored employee (a lesser charge of £354 applies to small business or charitable sponsors). Some exemptions exist.

  • It is also likely that many employers will absorb other costs incurred by the visa applicant, such as:

    • The Immigration Health Surcharge. Applicants who will be entering the UK for six months or more, or extending their leave in-country, must pay the surcharge which entitles the applicant to the same NHS services as a British citizen. The charge is generally £624 per year per person. It is also payable for dependant applicants at the same rate or £470 for dependants aged under 18 at the date of application.

    • Visa fees, which will exceed £10,000 for a family of four people.

It could be potentially discriminatory to state on job adverts that candidates must have the right to work in the UK to obtain an interview. However, it is acceptable to explain that a right to work in the UK will need to be established later on in the process.

Similarly, excluding candidates because they do not currently have a right to work could discriminate. The candidate may yet be able to obtain that right, for example, via sponsorship or another type of visa. Alternatively, they may have a time-limited work permit rather than an ongoing right to work.

But given employers are legally required to check a prospective employee’s eligibility to work, one approach could be to advertise the role as UK-based, with commencement of employment conditional on the right to work, and if appropriate, an acknowledgement that sponsorship may be available.

While sponsorship can be expensive, the added cost alone may not be a sufficient excuse to avoid a discrimination claim. Courts and tribunals will examine factors such as the financial pressures faced by the employer and whether the actions taken were proportionate, in assessing whether the discrimination complained of may be legitimately justified.

Employers should consider all applications equally regardless of the cost of sponsorship, or risk defending a more expensive discrimination claim.

There is no mandatory requirement for employers to undertake retrospective checks on EU citizens who were employed on or before 30 June 2021. Employers will maintain a continuous statutory excuse against a civil penalty should a worker not have the correct status, as long as they have conducted a compliant right-to-work check at the start of employment.

Newly hired employees will need to provide evidence of settled status, pre-settled status or the relevant visa.

The Home Office has published an updated Employer Partner Pack to help employers navigate the requirements in place from 1 July 2021.

Irish nationals do not need settlement status or any visa to work in the UK by virtue of the Common Travel Agreement (CTA).

Irish and UK citizens will be able continue to travel freely for business travel and to live and work between both countries under the Common Travel Agreement (CTA). Irish nationals currently working in the UK will not need to apply for settled status in the UK.

The CIPD has responded to the Migration Advisory Committee (MAC) inquiry on the a points-based, post-Brexit immigration system and on minimum salary thresholds. This follows previous government reports which have drawn extensively on CIPD research.

The CIPD is a member of the Home Office employers’ advisory group and will continue to work with Government to help ensure that further immigration policy developments will meet employer needs.

It remains to be seen how the Government plans to amend EU employment legislation as transposed into UK law, such as those derived from the Working Time Directive or the Agency Workers Directive.

Have a specific legal query about Brexit not covered above? CIPD members can call our Employment Law Helpline on 03330 431 217 to get advice on all aspects of UK employment law. Members are entitled to 20 calls per year (25 if you’re a Chartered member). The helpline is available 24 hours a day, 7 days a week.

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