Employing Foreign Nationals Post-Brexit

By April Harrington.
15 Dec 2020

It’s highly unlikely that you’ve missed the term ‘Brexit’ over the past few years. It refers to the UK’s departure from the European Union (EU). Following a series of delays, the exit eventually took place on 31 January 2020. A transitional period is currently in place that will last until 31 December 2020.

The main impact of Brexit in employment law terms will be seen in the recruitment process as immigration laws change. You’re already under an obligation to take steps to ensure a worker’s right to work in the UK. This process will be altered in light of the consequences of Brexit.

Frequently Asked Questions

What is ‘free movement of persons?’

Currently, all EU citizens are able to live and work in the UK under ‘free movement of persons’. This includes people from Iceland, Liechtenstein and Norway (EEA countries) and Switzerland.

Between 1 February 2020 and 31 December 2020, EU/EEA/Swiss citizens may still come to the UK to work without permission before their arrival. From 1 January 2021, the transition period, and so free movement, will end. This means that EU/EEA/Swiss citizens arriving in the UK will need to gain permission to work in the UK. This is currently the case with non-EU/EEA/Swiss citizens.

Does Brexit affect EU citizens I already employ?

Yes. EU citizens who currently work for you need to gain permission to remain in the UK. This also applies to any EU citizen you recruit before the end of 2020. There is an exception if they have already been granted indefinite leave to remain (ILR) or are from Ireland.

Successful application guarantees the indefinite right to continue living and working in the UK.

How does the EU Settlement Scheme work?

Applications for the EU Settlement Scheme opened in March 2019 and will close on 30 June 2021. They can be submitted on the government website.

Employees have until 30 June 2021 to submit an application. Individuals must be in the UK by 31 December 2020 to apply. Anyone arriving from 1 January 2021 onwards is not eligible to apply.

To gain ‘settled status’ the applicant needs to have five years’ continuous residence in the UK when they apply. ‘Settled status’ means they’ll have indefinite leave to remain in the UK.  Five years’ continuous residence is gained when someone has lived in the UK, the Channel Islands or the Isle of Man for 6 months in any 12-month period for five years in a row, with some exceptions.

Those who are in the UK by 31 December 2020 but do not have five years’ continuous residence by the date they apply will get ‘pre-settled status’. This allows them to stay in the UK until they have reached the five year residence point. In other words, they can stay for a maximum of five years and then they can apply for settled status.

What will a successful applicant receive?

Successful applicants will be sent an email confirming their status. This will be sent along with the date it was granted with a unique reference number rather. The application usually takes around 5 working days to process. If they need further information it can take up to a month, so don’t panic if it doesn’t arrive that quickly.

A successful applicant can obtain a ‘share code’. You can use this to prove immigration status to employers through the government website.

Successful applicants can obtain a ‘share code’ to prove their immigration status to employers through the government website. Share codes can be used for prospective employers to check online if a job applicant has the right to work in the UK.

You must not coerce staff into applying.

What are the rules on recruiting EU nationals under new immigration rules from 1 January 2021?

From 1 January 2021, new immigrations systems are to come into operation. They will apply to all non-British and non-Irish citizens.

It’s expected that the vast majority of people will seek to enter the UK under the ‘skilled worker route’.

How will the skilled worker route work?

Currently, foreign nationals from outside the EU can enter the UK under a Tier 2 visa. This involves them attaining a certain number of points, including a sponsorship from an employer licensed by the government to employ foreign workers. A similar system is set to be introduced from 1 January 2021—the ‘skilled worker’ route.

This is expected to be the route in which the vast majority of foreign nationals seek to enter the UK to work. There will be no cap on the number of individuals taken on through this route.

Applicants will need to achieve 70 points in total, made up of 50 mandatory points, and 20 tradeable.

What are mandatory points under the skilled worker route?

These are as follows:

  • Job offer from an approved sponsor - 20 points
  • Job at the required skill level (RQF 3 or above (A Level and equivalent)) - 20 points
  • English language to a required level. (This will need to be evidenced by completing a test or having a degree in English language similar to an English bachelors) - 10 points

What are tradable points under the skilled worker route?

These are as follows:

  • Salary of £20,480 to £23,039 or at least 80% of the going rate for the profession (whichever is higher) - 0 points
  • Salary of £23,040 to £25,599 or at least 90% of the going rate for the profession (whichever is higher) - 10 points
  • Salary of £25,600 or above or at least the going rate for the profession (whichever is higher) - 20 points
  • Job in a shortage occupation as designated by the Migrant Advisory Committee (MAC) - 20 points
  • Education qualification: PhD in a subject relevant to the job - 10 points
  • Education qualification: PhD in a STEM subject relevant to the job - 20 points

Do I need to apply for a sponsorship license?

Currently, if you wish to employ a foreign national not covered by free movement you must have a sponsorship license.

This changes on 1 January 2021. From then, you must have a sponsorship license to employ a foreign national through some, not all, immigration routes. The skilled worker route requires sponsorship. You don’t need this license to employ an individual who has status under the EU Settlement Scheme.

You can sponsor an employee only if the role meets the minimum requirements. An employer who is a sponsor can issue sponsorship certificates to foreign nationals. They will then use this as part of their visa application.

How do I get a sponsorship license?

Sponsorship carries certain eligibility requirements. You must not have any unspent convictions for immigration offences or certain other crimes. These include fraud or money laundering. You must not have had a sponsorship licence revoked in the previous 12 months.

You should decide what licence you wish to apply for. Currently, they differ depending on whether you are taking on staff temporarily or long-term. This will need to be specified when you make your application. The longest you can sponsor a worker for is 5 years.

You will need to pay a fee to apply for a licence, which varies depending on the size of your organisation. Small companies will pay £536 for each application. Larger organisations will pay £1,467 for a licence to take on long-term staff, and £536 for temporary staff. You are likely to be considered a large company if your annual turnover is over at least £10.2 million and you have at least 50 employees.

It takes an average of eight weeks to process applications. You can seek a decision from the Government within 10 days, however this offer is limited to the first 10 applications in a day and costs an extra £500.

Licences are applied for via gov.uk.

Expert support

These changes are going to cause issues if you don’t prepare. If you have questions, or need expert support managing recruitment and HR, speak to one of our team today on 01455 858 132.

About the Author

April Harrington.

An experienced Senior Employment Law Consultant, who has worked for the group for over 9 years. April specialises in discrimination legislation. April has an extensive background in training, as well as recruitment and hospitality.

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