The Post Brexit Immigration System

Estimated reading time 10 minutes

The UK officially left the EU on 31 January 2020 the transition period maintaining free movement for EU citizens ran until 31 December 2020. As of now, the Post Brexit Immigration Rules apply to all migrants, including those arriving from the EU. The Home Office has made announcements giving some clues as to what the new system would contain. The new rules have now been released and there are a number of important changes for employers and workers alike.

As free movement has now ended, EU citizens will no longer have the right to come to the UK and work without having a job arranged. They will have to come within the Immigration Rules and, as a result, the routes for sponsored workers have widened somewhat.

Here we will consider the position for sponsored workers, employers, Representatives of Overseas Business and EU nationals.

The previous system

As most will know the previous system meant that any worker who required sponsoring had to be supported by an individual employer. Companies had to obtain a Sponsor Licence and could then sponsor migrant workers. They were then able to both bring workers from overseas branches to the UK using the Intra Company Transfer (“ICT”) route or hire those from outside the company under the Tier 2 General route. Under both routes the job had to be at degree level and meet the minimum salary requirements among other rules.

With the Tier 2 General route, it was usually necessary to show that no settled worker within the UK could fill the role. To do that the company had to satisfy the Resident Labour Market Test, which meant advertising the job for 28 days and showing that none of the local applicants were qualified for the post. The company then had to make an application for a Restricted Certificate of Sponsorship from the allocation released monthly.

Companies that were not already established in the UK could send over a senior employee to set up the company using a Representative of an Overseas Business visa. 

The Current, Post-Brexit Immigration system

Employers still need a Sponsor Licence. Businesses that have European links and have always been able to rely on free movement to bring members of their EU workforce to the UK now need a Sponsor Licence to employ new workers from Europe. There are no changes to the process of applying for a Sponsor Licence except that a priority application service costing an extra £500 was launched on 12th November 2020. In addition, some of the new rules are beneficial for businesses employing migrants.

Tier 2 General – Skilled Workers

This route was introduced from 1 December 2020. The most significant changes came in this category, which is renamed as the Skilled Worker route. New appendices in the Immigration Rules were added to deal with this, the ICT and Representative of an Overseas Business routes.

The main changes that were introduced with the Skilled Worker route are as follows:

• It is no longer needed to satisfy the Resident Labour Market Test. Instead the decision maker must be satisfied it is a genuine job. It is not clear whether they will conduct enquiries at the time of application or only so when they make compliance checks with the Sponsor.
• The new Rules state that the decision maker must not have reasonable grounds to believe the job the applicant is being sponsored to do does not exist, or is a sham or has been created mainly so the applicant can apply for entry clearance or permission to stay.
• The cooling off period which meant that Tier 2 Migrants would have to leave the UK for 12 months at the end of their visa has been dispensed with.
• The monthly allocation process for Restricted Certificates of Sponsorship has also been removed. There is no cap on the number of visas that can be granted. Sponsors will now be able to apply for Defined Certificates of Sponsorship and the Home Office state that they intend to give decisions within one day.
• The minimum skill level has been reduced from degree level to A level qualified jobs. Roles still need to be fitted into the Home Office’s SOC code system where different roles are given a specific code. If the wrong code is used the application would be refused.
• The minimum salary, subject to those which apply to specific roles, has been reduced from £30,000 to £25,600. There are certain circumstances where a salary of £20,480 will suffice. The minimum salary to be able to apply for indefinite leave to remain has also been reduced to £25,600.
• Skilled Worker visas are valid for up to 5 years at time. Under the old scheme Tier 2 General Migrants could only stay but a maximum of 6 years. Under the Skilled Worker route they can have unlimited extensions. Unchanged from the old route they are eligible to apply for Indefinite Leave to Remain after 5 years, provided they meet the other requirements.
• Anyone in the UK can transfer into Skilled Worker route unless they are here as a visitor, short term student, parent of a child student, seasonal worker, domestic worker or somebody here outside the Immigration Rules.

Intra Company Transfers

There were fewer changes here and the minimum required skill level for the roles is still degree level. However, there are some beneficial changes as follows:

As with the Skilled Worker route the cooling off period was removed.

It will now be possible to switch from the ICT route into the Skilled Worker route, which means that they were allowed to apply for Indefinite Leave to Remain if they met the other requirements.

The amount of time they could stay in the UK change to 5 years in a 6 year rolling period or 9 years in a 10 year rolling period if they earned over £73,900.

Representative of an Overseas Business

Apart from being put into a separate Appendix in the Immigration Rules, there were no significant changes to this route and it still remains a great way for overseas companies to get an experienced employee to the UK to spearhead setting up their operations in the UK. Read more on obtaining Representative of Overseas Business Visas here.

EU citizens

Until 31 December 2020 EU citizens continued to enjoy freedom of movement to come to the UK. Any who arrived in the UK and started working by 31 December 2020 are able to apply for the settled status scheme, which means they can work or study in the UK and do not need to find a Sponsor. They have to apply by 30 June 2021. They are eligible for settled status once they have been in the UK for 5 years. With pre-settled status they can spend up to 2 years outside the UK without losing that status. With settled status they can leave the UK for up 5 years and retain their settled status.

EU citizens arriving after 31 December 2020 without having settled or pre-settled status have only two options.

A Frontier Worker scheme was introduced from 1 January 2021 for people who work in the UK but who live primarily in another country. This will only benefit those who started work prior to 31 December 2020 but were not resident in the UK and so do not qualify for settled status. After 1 January 2021 they can continue to travel to the UK for work and do not need to spend any minimum amount of time here. The permit is valid for 5 years and holders can retain the status for up to 2 years if they become unemployed.

EU citizens can be sponsored to come as Skilled Workers or ICT migrants.

If EU citizens want to avoid these restricted options they must have arrived and start working in the UK by 31 December 2020.

COVID-19 and Lockdown Restrictions

Due to the recent pandemic, a third UK lockdown has been announced from 4 January 2021. This has heavily impacted the immigration system.

Those whose visas are expiring are still expected to take all reasonable steps to leave the UK where it is possible to do so or must apply to regularise their stay in the UK. Individuals can still access Visa and Immigration services as they are considered an essential public service and, therefore, continue to operate under the national restrictions.

Employees whose visas or leave expires between 1 December 2020 and 31 January 2021 may request additional time to stay, known as ‘exceptional assurance’ and will have to submit their request online.

If your employee lives in another country, and their Visa Application Centre is closed, they can apply for a visit visa from any UK VAC. However, they should apply for all other UK visas form the country they reside in.

If your employee’s VAC is closed due to COVID-19 restrictions, they can apply online and select a VAC in another country worldwide to submit their application and biometrics. However, they must already be permitted to travel to that country. According to the UK Government, this concession has been extended to 31 March 2021.

For further or specific queries regarding immigration that is related to COVID-19, there is now a Coronavirus Immigration Help Centre that can address them.

Get in touch for further support and advice

If you have any queries on the post-Brexit immigration rules or how these changes impact your business, contact our team.

For further information or if you have any queries relating to the content of this communication, please contact us.

CELIA Alliance
CELIA Alliance members are identified here. Members of the CELIA Alliance are each independent law firms and do not practice law jointly with any other member of the CELIA Alliance. "CELIA Alliance" and "CELIA" are not trading names. For more information about the CELIA Alliance click here.

Disclaimer
Content is for general information purposes only. The information provided is not intended to be comprehensive and it does not constitute or contain legal or other advice. If you require assistance in relation to any issue please seek specific advice relevant to your particular circumstances. In particular, no responsibility shall be accepted by the authors or by Abbiss Cadres LLP for any losses occasioned by reliance on any content appearing on or accessible from this newsletter. For further legal information click here.

Circular 230 disclosure
To ensure compliance with requirements imposed by the IRS and other taxing authorities, we inform you that any tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties that may be imposed on any taxpayer or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

Copying
If you would like to copy or otherwise reproduce this article then you may do so provided that: (1) any such copy or reproduction is for your own personal use or if it is made available to any third party it is done so on a free of charge basis; and (2) the article is reproduced in full together with the contact details, disclaimer and any logos as they appear on each article.