Employers’ legal guide to post-Brexit immigration
Use our practical guidance on navigating the UK’s new points-based system for people professionals and employers
Learn about recruiting overseas workers, the categories of non-UK nationals able to enter and work in the UK, and the legal framework involved
Many employers value workers from overseas due to the knowledge and skills they can contribute to the organisation. People professionals have an important role to play in recruiting migrant workers as they are responsible for carrying out the necessary checks and making sure the law is followed.
This factsheet looks at categories of non-UK nationals in terms of their freedom to enter and work in the UK. It outlines the legal framework and highlights the risks of employing people illegally. It also explores the particular issues and responsibilities employers currently need to be aware of when employing migrant workers and provides links to government guidance on the employer's role during the checking process.
See the full A-Z list of all CIPD factsheets.
Explore our viewpoint on Brexit and future immigration policy in more detail, along with actions for government and recommendations for employers.
There’s considerable value to organisations in employing workers from overseas. Key reasons include:
People professionals have an important role to play in this process: it’s crucial they ensure the organisation complies with the relevant law and carries out the required checks.
Following the UK’s departure from the European Union on 31 January 2020, the transitional period during which free movement of labour continued ended on 31 December 2020.
The government has introduced a new UK points-based immigration system. Citizens from the Republic of Ireland will be exempt from the new immigration rules.
Under the new system, all applicants, both EU and non-EU, will both need a job offer from an approved sponsor at the required skill level and demonstrate that they can speak English
Applicants will also need to have 70 points from the following list to be eligible to apply. Some of these characteristics are tradeable.
The ‘skilled worker’ route will be the main route through which employers recruit overseas workers. The main elements of the route include:
A minimum skill threshold, dependent on the occupation, of RQF Level 3 (SCQF 6 in Scotland), which is equivalent to A-level occupations. Employers will therefore be prevented from recruiting for roles that only require skills at GCSE level or below, such as hospital porters, care workers, bar staff and customer occupations.
A minimum salary threshold of £25,600; although lower thresholds will apply to some public service occupations and shortage occupations (no less than £20,480). New entrants will be subject to a threshold that is 30% below that of experienced workers alongside skill shortage occupations (£20,480) and workers with PhDs relevant to the job (£20,480).
A range of costs including visas, a sponsorship licence and an immigration skills surcharge.
Quickening the recruitment process for recruiting overseas nationals to 8 weeks.
Removing the migration cap.
Under the new system, employers will be subject to more bureaucracy and a range of costs in recruiting all non-UK citizens from overseas. These include a sponsorship licence, visas (which could extend to dependants of the skilled migrant) and the Immigration Skills Charge for each worker. All non-UK citizens will also be subject to an Immigration Health Surcharge of £400 per year, which some employers may also feel compelled to pay, with the exception of health and care staff who will be exempt from the charge.
In July 2020, the government announced a new health and care visa which offers a fast-track visa route for eligible health and care professionals with a lower visa application fee.
There’s more practical guidance on navigating the new points-based system in our Employers’ legal guide to post-Brexit immigration and additional resources and comment in our Brexit hub.
Use our practical guidance on navigating the UK’s new points-based system for people professionals and employers
It's a criminal offence to knowingly employ a person who requires but lacks immigration permission, to be in that role. There's a maximum prison sentence of two years and an unlimited fine for employers caught in breach. In practice, this is aimed at employers who deliberately flout the law to exploit vulnerable employees and undercut legal competitors. The merely careless or negligent will generally be dealt with through a civil penalty.
Employers have to check and copy specific original documentation tor any new employees. The government's guidance for employers on preventing illegal working sets out when checks must be made, what employers need to do including tips on how to check authenticity and what to photocopy and retain. Checks must be completed before employment begins, but re-checking is also required for employees with time-limited immigration status.
Any checks made should be done in a non-discriminatory manner, following government guidance on avoiding unlawful discrimination while seeking to prevent illegal working which recommends that all job applicants should be treated in the same way.
Read our pre-employment checks guidance for employers.
Organisations with operations overseas should find that their HR teams will be able to help with recruitment. Otherwise, it may be advisable to use a reputable law firm which has experience of recruiting overseas workers.
Employers should consider using the internet in recruitment, particularly in the early stages, as it is an inexpensive way of reaching overseas workers and can save a lot of time.
After an initial sift, face-to-face interviews will probably be needed, either in the home country or the UK. When interviewing, care must be taken to avoid discrimination. Government guidance gives advice.
Information comparing qualifications in different countries can be obtained from the National Recognition Information Centre for the United Kingdom (UK ENIC).
Contracts will vary depending on whether the assignment is temporary or permanent. For short secondments, it's often easier for the employee to retain home country pay and benefits, topped up by an allowance. Items to consider are:
The benefits package must include a fair relocation deal. This should include payments for:
Sometimes the rest of the dependant family may choose to remain in the home country which means that the overseas worker is likely to want to make more trips home.
Apart from financial help with relocation, employers should give practical help such as finding accommodation, obtaining a driving licence and credit cards.
A new overseas worker should follow the same induction programme as any other employee.
However, it may be necessary to have additional orientation sessions offering a basic understanding not only of UK employment but also of UK society in general.
Organisations which regularly employ overseas workers from a particular country (for example a Japanese company in the UK seconding employees from Japan), are likely to have an informal network of expatriate staff who can make a new family feel welcome and provide advice from personal experience.
Where such a network does not exist, the use of a co-worker as a ‘buddy’ may be helpful. Preferably this co-worker should have a similar domestic situation to the new employee and so be able to give practical advice on the day-to-day issues facing the entire family.
Managers should be trained to communicate effectively with people from other cultures and be sensitive to different communication styles and attitudes to work. It's particularly important to recognise that ideas vary from one culture to another. For example, some place greater emphasis on consensus and collaboration whereas others value clear direction from strong leadership in a strict hierarchy; some encourage honesty, even open criticism, whereas others would prefer more diplomacy and conciliation with no show of strong feelings.
It's possible to build effective teams by having a clear framework that does not ignore cultural differences but encourages communication and ensures that everyone understands the common goals.
An English language requirement has been introduced for public sector workers in public-facing roles. However, employers should be aware that insisting all staff speak English all the time could amount to indirect race discrimination. In some circumstances a requirement to speak English might be a proportionate means of achieving a legitimate aim which would mean that it's not a discriminatory policy. An example might be where staff are dealing with customers, such as on a reception desk. There's advice on writing a policy that meets the employer’s needs and is not directly discriminatory in our report The state of migration: employing migrant workers.
Sponsorship and Employers' Helpline Tel: +44 (0) 300 123 4699 (provides guidance and advice on the prevention of illegal working)
GOV.UK - New immigration system: what you need to know
GOV.UK – UK visa sponsorship for employers
GOV.UK – Right to work checks: an employer’s guide
GOV.UK - Check if someone can work in the UK - online tool
GOV.UK - Employers: illegal working penalties
DEPARTMENT FOR BUSINESS, INNOVATION AND SKILLS. (2015) The impacts of migrant workers on UK businesses. London: BIS.
CHURCHILL, F. (2020) Majority of UK migrant workers now non-EU citizens, figures show. People Management (online). 19 June.
DAVIES, G. (2020) Survey points to painful adjustment to new immigration system. CIPD Voice. Issue 24, 6 July.
OWEN, J. (2020) UK faces skills crisis as inflow of EU workers plummets. People Management (online). 27 November.
VANDAL, F. (2020) Are you ready for the immigration shake-up? People Management (online). 26 November
CIPD members can use our online journals to find articles from over 300 journal titles relevant to HR.
Members and People Management subscribers can see articles on the People Management website.
This factsheet was last updated by Fragomen LLP.
As post-Brexit arrangements continue to roll out, the CIPD will continue to provide news and updated resources to support your planning
Watch our webinar and download slides to discover how the new immigration regime will impact people practice
Looks at the main stages of the recruitment and resourcing process, from defining the role to making the appointment