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Print articleBrexit Insight - The End of Free Movement: Our Experiences
March, 2021 - Shoosmiths
The Impact of Brexit
On 31 December 2020, we saw the end of free movement for EU workers and the introduction of a new Immigration system which now applies to EEA and non-EEA nationals alike wishing to come to the UK from 1 January 2021.
Our ‘new’ immigration system is a points-based system and much the same as our old system but in part renamed/tweaked and extended to EU workers. There are some new immigration categories that have been or are being introduced and some unsponsored routes but for most employers looking to recruit outside of the UK and Ireland, they will need a sponsor licence to do so.
For those EEA citizens who were lawfully resident in the UK by virtue of free movement law prior to 31 December 2020, and for their relevant family members, their existing residence rights in the UK will be protected by applying under the EU Settlement Scheme for pre-settled or settled status before 30 June 2021, which they must do if they wish to continue to lawfully reside and work in the UK. Employers cannot force their EU national workforce to submit EU Settlement Scheme applications, but you can encourage them to do so and provide information/support on how to apply.
Our experiences
We have seen an increase in sponsor licence applications, mainly for employers who rely heavily on skilled European workers but also as many of the thresholds for ‘Tier 2’ now ‘Skilled Worker,’ have been reduced/removed/simplified by the new immigration points based system, this has made it easier for employers to sponsor non-EU workers who would not have been previously eligible.
Given the cost and responsibility of sponsoring migrant workers and the fact that for many roles that EU workers perform they would simply not meet the points/eligibility requirements for sponsorship, many businesses have taken the decision to initially try and muddle through without the need for a licence for the time being at least. Currently with unemployment levels there are more prospective candidates to choose from. We would expect as the economy picks up and certainly into the later part of 2021, to see an increase in applications. We would recommend to the extent you know you will need a licence, to apply sooner rather than later, with processing times which are currently 6-8 weeks, likely to increase.
We have seen an increased number of visa applications from EU nationals for clients with an existing licence for skilled roles who would previously have recruited EU nationals freely without the need for sponsorship.
The recruitment process is now shorter without the need to conduct a resident labour market test or put in for a restricted certificate to a committee who sat on a monthly basis which was subject to caps. This has therefore reduced the recruitment process by up to 8 weeks. The benefit of this is in part negated by the English language requirement, which European workers also have to meet. This becomes a requirement, if they didn’t do their GCSEs and A levels in the UK or have a degree that was taught in English or in the UK or a majority English speaking country. Even with a degree taught in English, this needs to be NARIC assessed. If they don’t meet this requirement, they need to pass an approved English test in all 4 components (reading, writing, speaking and listening. This has increased processing time for EU nationals as they didn’t need to meet the English language requirement previously (or indeed any visa requirements).
The new immigration rules allow those on an Intra-Company Transfer (“ICT”) visa to switch into the Skilled Worker route. The benefit of the ICT route going forward is likely to be largely redundant as the Skilled Worker route has lower skill and salary thresholds and is more accessible. The main remaining positive to ICT is there is no need to meet the English language requirement. We are seeing increased enquiries about switching to the Skilled Worker route as migrant workers would then be able to settle in the UK subject to meeting other requirements for settlements.
Our client’s experiences and changes
We advised in our last webinar series that internal audits would be useful for employers in understanding their current EU workforce to consider their need to continue access to EU and non-EU workers following Brexit. Many clients have engaged in such audits and have taken the time to consider their need for a sponsor licence if they didn’t already have one.
As a result, we have seen a higher number of clients making applications to obtain sponsor licences to continue their ability to recruit from the EU and beyond. Clients have also been asking for support in carrying out health checks of their sponsor licence to ensure that it is up to date. Some clients have the incorrect people on their sponsors licences, and some have found they do not access to their licences, to which we have been making specific applications to have the rectified.
EU nationals applying for a Skilled Worker or Intra-Company Route can use the UK Immigration ID Check application to complete the identity stage of their application. The app will check that their identity document is genuine and will verify that the document belongs to that individual. The app will only work once the individual starts their application and creates their UKVI account online at GOV.UK. When they get to the identity verification stage, they will be told to open or download the app. Once the individual has confirmed their identity, they can complete the rest of their application either on that device or any smartphone, laptop or computer. There can be some technical difficulties when using this process but overall once it begins to work it has shown great lead times as processing times have been very quick through this new service and turnaround times have been approximately 5 days, even though the suggested timescale was 3 weeks.
Another point to note of our clients’ experiences is in relation to permitted activities of business visitors. Individuals can visit the UK under a standard visitor visa for permitted business activities. This includes attending meetings, conferences, trade fairs or negotiating contracts. The experience of our clients to date is that a light-hearted approach is being adopted at the borders currently as there was an expectation that letters of comfort would be required at the border, this is yet to materialise.
However, we anticipate that post June 2021 this is likely to be scrutinised by Border Officials. On this basis, we would recommend making sure that individuals visiting for permitted business activities are doing so within the rules and providing letters of comfort where deemed appropriate to prepare for a likely change in approach.
What right to checks apply for EU workers who commence employment between 1 January and 30 June 2021?
Updated right to work guidance was issued by the Home Office in late December and more recently a ‘UK points-based Immigration system: Employer Partner Pack’ which does include a Right to Work Employer Fact Sheet which confirms employers can continue its right to work checks as normal until 30 June 2021. It states that EU workers can continue to use, ‘either their passport and national identity cards as evidence of their right to work until 30 June 2021. You cannot insist that they use the online service or discriminate against those who wish to use their passport or national identity card.’
If however you know or have reasonable cause to believe the EU national has not been in the UK prior to 31 December 2020 through for example, their references provided or contact details, we know they will need a visa to legally work in the UK and without one, they will be an illegal migrant worker. The guidance makes clear that, ‘you will commit a criminal offence, if you know or have reasonable cause to believe that you are employing an illegal worker. You may face up to 5 years’ imprisonment and/or an unlimited fine.’
We would recommend that you continue to carry out your right to work document checks as normal until 30 June 2021. You will obtain a statutory excuse against a civil penalty provided right to work checks are undertaken in line with the guidance at the right time. However if you know or have reasonable cause to believe that the worker has entered the UK after 1 January 2021, in order to mitigate the risk of potentially employing an illegal migrant worker we would recommend you carry out further enquiries to establish date of entry in order to satisfy yourself they have the right to work legally in the UK.
Conclusion
The key points to notes are that employers should evaluate their business needs and decide whether they have a business need to recruit workers for the EU and beyond. If so, it is recommended to apply for their sponsorship licence earlier rather than later. There have been multiple changes in the immigration rules thus far and are constantly being tweaked so will keep up to date with any changes to provide the best client experience and adequately meet their requirements.
The key elements mentioned are not an exhaustive list and we have attempted to cover the main the features of the new Immigration rules. Also, as promised is the link to the Employer Partner Pack, which breaks down the new rules in a digestible manner. Employers are highly recommended to join our remaining next webinar however, for further guidance into the impact of the new immigration rules. Our webinar sessions provide a further detailed insight into the new immigration rules to allow Employers to make the changes that they need, sooner rather than later. Further details of our Immigration webinars can be found on our Brexit Insights hub page.
Alternatively, for any tailored advice, we are happy to help with all enquires and encourage employers to contact our dedicated Immigration team with any further queries.
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