Article written by Vanessa Ganguin
Immigration after Brexit – what does it mean for employers?
Following the formalisation of the UK’s exit from the European Union, along with the expiry of the transition period on 31 December 2020, British companies looking to recruit from the EEA (European Economic Area) do not have the luxury of freedom of movement any more. Employers now have to treat talent they hire from Europe the same as they would those from the rest of the world.
On 1 December 2020, in preparation for this, UK Visas & Immigration (UKVI) announced its new points-based system for UK immigration.
Who needs a visa?
People from certain countries are able to visit the UK without the need for a visa, but many will require one before travelling.
Those coming for short visits are able to participate in some exempt activities, such as conferences, but in general they are not permitted to carry out work, nor provide services in the UK. Limited exceptions include attending meetings or, for example, the installation and maintenance of computer software for a UK company.
What must employers do?
While some individuals may have different options when it comes to being a migrant worker in the UK, most will need to have sponsorship to enable them to apply for a work visa.
In order to grant sponsorship, the organisation must be established in the UK and authorised by UKVI in the relevant migrant worker category.
Companies seeking to sponsor migrant workers without already having a licence must apply for one. UKVI is processing new applications with a turnaround of around 8 weeks, but it is possible to have this expedited should priority processing be obtained. In order to become a licensed sponsor, there are significant compliance matters for employers.
Types of sponsorship for employers
There are several different classes of sponsored visa under the current system:
- Skilled Worker
- Intra-Company Transfer
- T2 Minister of Religion
- T2 Sportsperson
- T5 Government Authorised Exchange
- T5 Charity Worker
- T5 Creative and Sporting
- T5 International Agreement
- T5 Religious Worker
- T5 Seasonal Worker
The licence that an organisation must acquire depends on the specific category of the migrant workers that they are looking to recruit. Following recent changes, licences held under former categories were automatically updated to reflect their equivalents under the new system post-December 2020. It is possible to apply to have additional tiers added to an existing licence.
Most of the worker classes under the former points-based system remain relatively unchanged, with the significant exception of the Skilled Worker category.
What’s new with the Skilled Worker Category?
The Skilled Worker category replaced the old Tier 2 (General) category, bringing with it five major changes:
- Reduction in the minimum skill level – as such, the number of different roles potentially qualifying migrant workers for sponsorship has been increased.
- Reduction in the minimum salary – making it easier for employers to offer sponsorship, albeit with a minimum threshold and a "going rate" test still in place.
- No more Resident Labour Market Test – although UKVI will still be concerned with establishing how employers are conducting themselves when identifying and recruiting potential employees, there will no longer be specific requirements with regard to how sponsors must advertise, meaning that the whole process will be a lot more streamlined.
- Suspension of the annual limit on visas – organisations hiring from outside the UK will still have to consult UKVI on a case-by-case basis, but the new process has been made a lot more efficient.
- Removal of cooling off periods and caps on remaining in the UK – employers are no longer prevented from recruiting those who have been recently working in the UK.
These changes have been brought in so as to facilitate quicker sponsoring of visas by employers, as well as to deal with the expected shortages in the employment market as a result of the ending of free movement post-Brexit from the EEA and Switzerland. Strict requirements will still remain in place, however, for those employers wishing to sponsor migrant workers.
The new minimum requirements for sponsoring a Skilled Worker
The new system mandates that Skilled Workers need a minimum of 70 points to qualify for sponsorship. These are made up of 50 mandatory points and 20 tradeable points.
*Salary no longer includes any allowances and must exceed the minimum threshold and relevant percentage of the going rate in the rules for the specific role.
People with different visas – do they need sponsoring?
Some migrants will not have any major conditions attached to their ability to work in the UK:
- Those granted indefinite leave to remain – this is also referred to as “settled status” or “settlement”.
- People covered by the EU Settlement Scheme – EU, EEA and Swiss citizens, along with their family members, who were resident in the UK prior to 11pm on 31 December 2020 may have qualified, or be eligible to qualify, for status under this. In the interests of avoiding discrimination, employers may not require that people prove that they have applied under the scheme until after 30 June 2021. Employers will still be protected here, provided that they carry out a full right to work check before commencing employment.
- Tier 1 (Investor) visas – this is available to migrants who have invested at least £2 million carrying out UK business.
- Start-up visas – migrants who are setting up their own unique business in the UK are eligible for this, during this time they are also able to work for other employers.
- Those with UK Ancestry – citizens of the Commonwealth who have a UK-born grandparent.
- Global Talent visa – for established or emerging global leaders in the fields of sciences, medicine, humanities, engineering, technology or the arts.
Frontier Workers – citizens of the EU, EEA or Switzerland who work in the UK but live overseas. These workers must have been carrying out work in the UK before the 11pm deadline on 31 December 2020.
- Service Providers from Switzerland – people working for Swiss-based entities may be permitted to carry out the performance of a contract in the UK with a UK-based client provided that the contract was in force prior to the 11pm cut off on 31 December 2020.
- ECAA Workers – Turkish citizens who have this status can work in the UK, subject to restrictions based on how long they have held this status. This is no longer a category open to new applicants, but existing holders may apply for extensions.
- Youth Mobility Scheme – this exists for those from certain nations who are below the age of 31, seeking to experience living and working in the UK.
- Dependants – those who are dependent on points-based system migrants and workers can work so long as they do not do so as trainee doctors or dentists, nor as professional athletes.
- Family members of British citizens, or those with settled status.
- Those with Right of Abode – although this is recognised as a status, not a visa, it should be included in a passport through a visa vignette.
There is an additional Innovator category for individuals setting up a business in the UK, but those migrating to do so may only work for their own business. They themselves are not permitted to be directly employed by anyone else in the UK. This also applies to Turkish citizens holding ECAA Business Person status.
Some students, contingent on their level of study and which organisation is sponsoring them, may be able to work part-time in the UK during term time, or full-time outside of this. Placements may also be possible, so long as they are a formal part of the course in question.
If you have any questions, contact the author: Vanessa Ganguin