Brexit update: Checking right to work from 1 January and the new Skilled Worker visa

Although freedom of movement with the EU is ending with effect from 1 January 2021, EU nationals already in the UK at this time have until 30 June 2021 to make an application for settled or pre-settled status under the EU Settlement Scheme. This will allow them to continue to live and work in the UK. This applies to citizens of the following countries or economic areas:

• EU (except Ireland)
• EEA (Iceland, Liechtenstein and Norway)
• Switzerland

However, this will not be necessary if the individual has:

• Indefinite leave to enter the UK or
• Indefinite leave to remain in the UK or
• British or Irish citizenship

The gap between the end of the entitlement to claim status under the settlement scheme and the deadline for actually making the application poses a quandary for employers recruiting an EU national between 1 January and 30 June 2021 - how are they to know when the applicant came to the UK to determine whether they have a right to apply for status under the settlement scheme?

Fortunately, the government has decided that this is not an area employers need to delve into. Up until the 30 June 2021, there will continue to be differences between the way EU and non-EU nationals can prove their right to work.

Up until 30 June 2021, EU, EEA or Swiss citizens can prove their right to work as they do now, by either:

• Producing their passport or national identity card or
• Using the online right to work checking service

The government has specifically warned that employers should not discriminate against EU nationals and cannot require them to show their status under the EU Settlement Scheme until after 30 June 2021. The Home Office will be publishing guidance next year for employers on the checks which will be required for EU nationals post 1 July 2021.

Non-EU, EEA or Swiss citizens can continue to use an immigration status document listed in the right to work checks employer guide .

If an individual needs to apply under the EU Settlement Scheme to establish a continuing right to live and work in the UK, and fails to do so, they will lose their right to remain in the UK after 30 June 2021.

Although government guidance on what employers need to do in respect of their existing EU employees is expected next year, it seems likely that employers will be required to undertake some form of check at that point to see whether their existing employees have applied under the scheme.

Employers should therefore ensure that their employees are aware of what is required, the deadline for applying and the consequences for their employment if they fail to do so.

The online right to work check is available to those who have a status issued under the Settlement Scheme (it’s also available for those who have a biometric resident card or permit). Successful applicants under the scheme will not be provided with physical proof of their status. Instead, they will receive an email with a code which can be provided to the employer to enable them to carry out checks through the online service. The way to use the service is set out below:

1. An employer should access the online service via the ‘View a job applicant’s right to work details’ page on gov.uk and check the individual’s right to work using the share code provided by the applicant.
2. If this confirms the individual has the right to work, the employer needs to be satisfied that the photograph on the online right to work check is the individual presenting themselves for work.
3. The employer should keep a clear copy of the response provided by the online right to work check (storing that response securely, electronically or in hardcopy) for the duration of employment and for two years afterwards.

This replaces the previous Tier 2 (General) sponsorship route and it came into force on 1 December 2020. Under the new scheme, applicants will need a job offer from an approved employer sponsor.

Under this points-based system, skilled workers will be able to apply to come to the UK if they can demonstrate they fulfil all of the following three criteria:

1. They have a job offer from an approved sponsor (20 points)
2. The job offer is at the required skill level (level 3 – roughly equivalent to A level) (20 points) and
3. They can speak English to an acceptable standard (10 points)

Under the points system, meeting all three of the mandatory criteria gives the applicant 50 points but a total of 70 points is needed to be eligible to apply. The remaining 20 points can come from a number of factors such as salary or the fact that they have a job offer in a shortage occupation (these occupations are designated by the Migration Advisory Committee). For example, if the salary is below the required minimum threshold - £25,600- they can make up these points if the nature of the role earns additional points (but the salary must be no less than £20,480). These points are described as ‘tradeable’ and include all elements other than the three mandatory requirements.

There will be different minimum salary rules for workers in certain health or education jobs, and for “new entrants at the start of their career” where the salary requirement will be 30% lower than the rate for experienced workers in any occupation. However, this will still be subject to the minimum threshold of £20,480 which must always be met.

The government has described the general salary threshold as “a measure of the economic contribution an applicant will make to the UK” and therefore these limits apply regardless of the number of hours worked and will not be pro-rated.

The points structure is set out below:

Characteristics	Tradable	Points
Offer of job by approved sponsor	No	20
Job at appropriate skill level	No	20
Speaks English at required level	No	10
Salary of £20,480 (minimum) – £23,039 or at least 80% of the going rate for the profession (whichever is higher)	Yes	0
Salary of £23,040 – £25,599 or at least 80% of the going rate for the profession (whichever is higher)	Yes	10
Salary of £25,600 or above or at least 80% of the going rate for the profession (whichever is higher)	Yes	20
Job in a shortage occupation (as designated by the MAC)	Yes	20
Education qualification: PhD in subject relevant to the job	Yes	10
Education qualification: PhD in a STEM subject relevant to the job	Yes	20

All existing Tier 2 (General) sponsorship licences will be converted to a Skilled Worker Sponsor Licence.

1. The government have scrapped the resident labour marker test.
2. The cooling off period has been abolished (this was a rule that a visa holder was not able to apply again for a period of 12 months after leaving the UK).
3. The six-year maximum length of stay has also been scrapped.
4. The annual cap on visas has been ‘suspended’ (as opposed to completely abolished).
5. They have reduced the skills threshold.
6. The minimum salary is the higher of either £25,600 or the appropriate published rate.

When looking at salary, you can’t include allowances, any immigration-related costs (for example, the health surcharge) or any guaranteed bonuses.

It is a requirement that there’s a genuine vacancy. Although this also applied to Tier 2 applications under the previous scheme, there is likely to be more emphasis on this in future given the abolition of the resident labour market test.

Although Citation can’t advise on the immigration aspect of this, it’s helpful to be aware that sponsor licences are not transferable. Therefore, where transferring employees are employed under sponsorship, and the transferee does not have the appropriate sponsorship licence, they must apply for a licence within 20 days of the transfer.

If they fail to do this, in most cases the leave to remain will be reduced to 60 days and the employer would be committing a civil and/or criminal offence to continue to employ them beyond that 60 day period (if they’ve applied within the 20 days, the employee’s right to remain will continue even if the application takes longer than 60 days to determine).

Both the transferor and transferee must report the transfer within 20 working days (via the sponsor management system). If the transferee does not have a sponsor licence, they should report the transfer by contacting the Home Office.

It would be sensible for transferees to carry out their own right to work checks across the board just in case the transferor’s compliance was incomplete (they have a 60-day period of grace in which to do this).

A Frontier Worker is an EU, EEA or Swiss citizen working (either employed or self-employed) in the UK but living elsewhere. If they’re already frontier workers by 31 December 2020, they can keep this status but will need to apply for a Frontier Worker permit (these will be available from 10 December 2020). Up until the 30 June, these workers will be able to rely upon their passport as evidence of their right to work but from 1 July they will have to produce their Frontier Worker permit.

Frontier workers who start working in the UK from 1 January 2021, can’t rely on the Frontier Worker permit and will have to obtain a visa.

Sponsorship plays a central role to the new points-based system and for many employers who have been reliant on EU nationals as part of their workforce, this may be the first time they have been involved in the sponsorship process.

Applying for a sponsorship licence will involve checks that:

• they are a genuine business
• they are solvent
• the roles they wish to recruit are genuine and meet the salary and skills requirements

In addition, they must pay a licence fee and the Immigration Skills Charge. The current Tier 2 licence fee is £1,476 but a reduced fee of £536 is payable if the sponsor is a charity or a small business. The latter is defined as a business with:

• an annual turnover is £10.2 million or less
• 50 or fewer employees

If employers are not currently approved as a sponsor by the Home Office but believe they may need to sponsor skilled migrants from January 2021 (whether from within or outside the EU), they should consider applying for a sponsorship licence as soon as possible. Further information can be obtained from the Home Office sponsorship, employer and education helpline - 0300 123 4699 (available Monday to Thursday, 10 am to 3 pm).

It’s important that sponsors comply with their obligations as they may face an audit by the Home Office and non-compliance is treated very seriously. The main duties are:

1. Keeping proper sponsorship records (for the duration of the sponsorship and 12 months after it ends) and all documents relating to the licence for the duration of the licence.
2. It's important that sponsors follow the requirements to report incidents such as employment ending, an employee not attending work, going AWOL etc.
3. The employer complies with sponsorship and immigration rules (but also things such as holidays and NMW are included).
4. They must co-operate with Home Office staff and allow them access to premises.