Employees guide to Brexit: What should you be doing now?

5 min read

Friday 27 Nov 20

Immigration update: key dates

Open now - Application window open for post-Brexit sponsor licences under the new immigration system

31st January 2021 – Visa route officially open for Hong Kong (British National Overseas)

January – March 2021 - Annual allocation requests must be submitted by licenced sponsors in this window

30th June 2021 – Deadline for EU nationals to obtain settled status under the EU Settlement Scheme. Right to Work concession ends.

From settled status to immigration points and sponsor licences, if you’re an EU worker who works in the UK, or you’re hoping to do so, your next steps might seem a little daunting. To clear things up, we’ve compiled this short guide to explain the key changes, so you know what to do to ensure you have a right to work (or to continue to work) in the UK post-Brexit.

What does Brexit mean for EU workers already in the UK?

If you want to stay living and working in the UK after the end of June 2021, you must have applied to the UK Government’s EU Settlement Scheme because the right to work in the UK will no longer be granted. From 31 June onwards, the UK will have an immigration system in place that applies to everyone except UK and Irish nationals.

So, if you want to stay working in the UK, you must apply for settled status. It does not matter how long you have been here, if you have not already received UK citizenship, we recommend that you apply for this to continue being able to live and work here.

Workers can apply for settled status here. To apply for the EU settlement scheme, individuals will need proof of identity and residence in the UK. Find out more about what you need to apply here.

EU Settlement Scheme

Those living in UK before 1st January 2021 will need to apply to the EU settlement scheme to stay in UK after 30th June 2021. They will be given settled or pre-settled status depending on how long they’ve been living and working in the UK. A 5-year continuous residence period is needed for settled status so if individuals have been in the UK less than that, they will only be able to obtain pre-settled status.

The rights afforded to EU workers vary depending on which status they get (settled or pre-settled). However, in both cases, they will be able to live and work freely in UK, use the NHS for free, attend schools, benefit from public funds and travel in and out of the UK. Employers will need to be mindful of their right to work verification duties in regard to the EU settlement scheme to ensure that their employees are being hired legitimately.

Successful applicants get a letter (by email) confirming their type of status. The letter itself will not constitute proof of status or right to remain in the UK and work. Individuals can acquire proof via an online registry/service– a bit like HMRC’s portal. They’ll get a unique sign on and a share code to give to their employer or anyone else who might need it. Employees needing to prove their right to work to an employer, will need to follow the guidance here.

Settled status

  • If obtained, individuals can stay in the UK indefinitely and you can apply for British citizenship if eligible

  • You must be living in the UK on 31st December 2020 and

  • You must have lived in the UK (including the Channel Islands/Isle of Man) for a continuous period of five years (‘continuous residence’)

  • Once obtained, you can travel and live abroad for up to 5 years without losing it (4 years for Swiss citizens)

  • Once you have settled status, any children subsequently born in the UK will automatically be British citizens.

NB: Continuous residence means living in the UK for at least six months out of every 12-month period. There are some exceptions, which mostly cover military/diplomatic service periods, or one single exceptional period, not exceeding twelve months for a reason that includes childbirth, serious illness and study/vocational training/work placements. Details of those exceptions can be found here.

Pre-settled status

  • If obtained, you can stay in the UK for another five years from the date you’re granted the status

  • Applies to those who haven’t lived in the UK for five continuous years

  • Pre-settled status can convert to settled status once five years has been reached – the application must be made before pre-settled status expires

  • Once you have it you can travel and live abroad for up to two years without losing it, but if you do, you’ll lose the ability to convert to settled status, as you won’t have five uninterrupted years of ‘continuous residence’

  • Once you have pre-settled status, any children born in the UK will automatically be eligible for pre-settlement status, but they will not become British citizens unless they qualify for it via their other parent

Close family

Family who came to the UK before 31 December 2020 will also need to apply to the Scheme once they are here. If they do not have continuous residence they will only be able to get pre-settled status. For those not able to apply under the Scheme, they may still be able to travel to live here under other means, e.g. a family visa.

Following 31 December 2020, close family members from an EEA state may still be permitted entry to live here and to apply for the Scheme if:

  1. They became related to you before 31 December 2020, and

  2. You are still related to them when they apply to join you

Exceptionally, Swiss citizens may be able to bring spouses/civil partners to the UK until 31 December 2025 – under certain conditions.

NB: that Irish citizens or those who already have indefinite leave to remain do not need to apply under the scheme, they can stay in the UK already.

Getting sponsored by a UK employer

If you’re an EEA/EU individual planning to work in the UK after 1st January 2020 and you aren’t eligible for EU settled status, you’ll need to have a job offer from an employer with a sponsor licence. This gives the employer permission from the UK Home Office to employ someone from outside the UK. If you aren’t employed by a company, business or organisation who has a sponsor licence, you will not be able to work in the UK legally.

Workers can only be sponsored if the job on offer has a suitable rate of pay and skill level attached to it. You can find out whether the job you have in mind will be eligible here. The longest an employer can sponsor an employee for is five years.

The points-based system

You’ll need to score at least 70 points under the new system to be eligible to work in the UK. The first 50 points will need to come from the required criteria:

Required criteria

  • Workers must have a job offer from a licensed sponsor - 20 points
  • That meets the minimum skill level: RQF3 / A-level or above – 20 points; and
  • Be an English language speaker (to an acceptable standard) - 10 points

This means that if you have a job offer already, you’ll have to ensure that it meets the above criteria, and that you speak English to a good enough level.

If you meet all the above mandatory criteria, you will then need to score another 20 points in one of the following tradable criteria.

Tradeable criteria

  • Salary (0 – 20 points)

    • £25,600 or above - 20 points
    • £23,040 - £25,599 – 10 points
    • £20,480 – 23,039 – 0 points
  • The job is in an occupation where there is a shortage (20 points)

  • Education (10 – 20 points)

    • PhD in a subject relevant to their job – 10 points
    • PhD in a STEM (science, technology, engineering, and mathematics) subject relevant to their job – 20 points

The right to work

It is essential that you make sure you have the right to work in the UK, whether it be via the settled status route or the points-based system.

Your employer is under an obligation to check and provide evidence of your right to work. Your employer might even be subject to government spot-checks, especially in those sectors identified as ‘high risk’, such as the hospitality sector. They could get fined if they employ workers illegally and so they cannot take the risk of keeping you on, if you cannot prove that you have the right to be here.

Your employer is also under an obligation to report any sponsored workers who are no longer complying with their VISA conditions, to the UK Visas and Immigrations Authority and you could be subject to deportation.

Your sponsored visa might be at risk if the business circumstances of your employer change, for example, if they cease to trade in the UK for any reason, or are subject to a takeover, or substantially change the nature of their business operations. You’ll need to keep this in mind and make sure you communicate any concerns with your employer.

For low skilled or low paid roles, it will be much harder for EEA/EU nationals to find work in the UK. The government is still making decisions on this in relation to some sectors – agriculture and healthcare may be opened up wider to foreign workers, but we are yet to receive any official updates on this.

Other posts

Become a member

Farillio members have full unrestricted access to all our online content.

Achieve Business Objectives

Step-by-step instructions to guide you through everything you need to achieve your objective including a progress bar

Easy-read Guides

Knowledge when you need it, served up fast in plain English

Expert In-depth Videos

Expert Q&As with industry professionals to start you on the path

100s of Templates

Create, share, edit, e-sign, duplicate legal documents

Document Dashboard

Easily manage legal documents for your business

Rapid Legal Advice

Expert answers to legal questions without hefty fees

Try for free

While we can connect you with some very fine advisers in the UK, and we collaborate with them to provide you with great materials, Farillio itself is not a law firm. We do not directly provide legal advice ourselves. All resources are available for you to use (according to our terms and conditions), but those resources are not legal advice to you and neither are they a substitute for you taking legal advice from a lawyer.