Essentially, there are five key things that every employer should keep in mind from now.
Remind staff (a lot) to apply under the EU Settlement Scheme: if you’re a business who employs EEA/EU nationals currently, you should encourage staff who do not have indefinite leave to remain or rights under other types of UK VISA, to apply under the EU Settlement Scheme to protect their rights. They will not have an automatic right to remain here after the end of June 2021, if they do not apply as soon as possible to confirm and protect their status.
Right to work checks: Ensure your right-to-work checks and processes are thorough and run them now on anyone you are concerned about, so that you can support them in applying for the rights they need to stay here – if not or they’re not planning to remain here after June 2021, you may need to start planning for their exit properly.
Rethink hiring processes and employee planning: Be aware that staffing and workforce planning will need more careful thought in future, if EEA nationals have formed part of your workforce planning to date. Expect the recruitment and engagement process to be more costly and time-consuming and more paperwork-heavy from now on.
Apply for a sponsor licence now: If you need to recruit from abroad, get your sponsors licence in place as soon as possible and check all the Tier 2 Visa rules. See more information on this below.
Be prepared: Ensure your HR and people management processes are well set up and competently run so that you’re best placed to tackle any issues that may arise. You should be prepared to potentially lose or gain new EU/EEA staff and you should be familiar with your obligations.
Hiring legitimately: Right to work checks
If your EU/EEA employees want to continue living and working in the UK after the end of June 2021, they must have applied to the UK Government’s EU Settlement Scheme. You might want to direct them to apply here as soon as possible because the right to work in the UK will no longer be granted and from 31 June 2021 onwards, the UK will have an immigration system in place that applies to everyone other than UK and Irish nationals.
Employers will need to carry out right to work checks when hiring new employees. At the moment, there are some concessions around Covid-19 due to the inability to carry out face-to-face checks. In spite of this, these checks can still bring significant liability and penalty if employers get them wrong so they should be carried out thoroughly.
The Home Office have said that EU passports and EU national ID cards can be used as proof of right to work in the UK until 30th June 2021. However, after 30 June 2021, even EU nationals resident in UK prior to 1st January 2021 (and who have ‘eligibility’ under settlement scheme), will be unlawfully resident if they haven’t obtained status under the settlement scheme. There is therefore, some conflict between the Home Office announcements in relation to proof of right to work, and the new system. Both employees (and employers) might want to seek advice on this going forward.
Employees who successfully apply under the EU Settlement Scheme will get a letter (by email) confirming their type of status. That letter itself is not proof of status. To prove their right to work, they will need to follow the guidance from .gov.uk here.
This is a big step-change from the current employment arrangements...
For any employer who has only to date engaged UK and EEA nationals, the Government’s tier system and licensing system will be a new requirement for them. It is one that comes with admin, precise responsibilities and duties, payment of fees or risk of penalties if you don’t get it right and put in place the right systems and processes.
N.B. Irish citizens can legally work in the UK and won’t need to be subject to the same rigorous checks.
For employers, to check a job candidate’s right to work here in the UK, you’ll need to use the government’s required process detailed here. There are penalties for employing illegal workers, so it’s important to do the checks.
Employers will be under an obligation to report any sponsored workers who are no longer complying with their visa conditions to the UK Visas and Immigrations Authority. Further information on these management, monitoring and reporting duties can be found here
If businesses circumstances change e.g. if you cease to trade in the UK for any reason, are subject to a takeover or change the nature of your business operations substantially, this may alter your sponsorship eligibility. Changes can be registered and evaluated via the Government’s visa sponsorship management system (SMS)
Applying for a sponsor licence
Employees who are not eligible under the EU Settlement Scheme will need to be sponsored in order to work for your business. To sponsor, you’ll need a licence which gives you the right (permission from the Home Office) to employ someone from outside the UK. This comes at a cost (see the fees section below). Briefly, the main changes that the new system will bring for employers are:
- Reducing the current skills-level requirement down to A-Level or equivalent (or higher) from the current degree level (or higher)
- Dropping the minimum salary threshold from £30,000 to £25,600
- Widening the list to a broader range of roles for which employers can recruit
- Removing the limit per month on the number of Tier 2 workers (skilled, long term workers) that can be engaged.
Your business must be eligible (check that here on .gov.uk and apply there too). Essentially, verify that you’re a genuine UK business with a proper trading presence, so that the government is confident that you’ll be competent and responsible when hiring foreign workers and meeting the immigration requirements.
You must have - and be able to evidence of - a genuine vacancy for which you need to recruit and have a management arrangement in place for the sponsorship. Again, something that will need to be evidenced and policed. The government’s made clear it will audit/spot check this.
Workers can only be sponsored if the job you’re offering has a suitable rate of pay (£25,600 or less if it is in an occupation where there is a shortage) and skill level attached to it (minimum RQF3 – A-level or above). Find out whether the vacancy you have in mind will be eligible here – it’s quite a list.
You should definitely keep in mind that if the job is not on an official government list identifying national job shortages (shortage occupation list) you’ll be required to advertise it to the local UK market and undergo a full and proper recruitment process to identify the right candidate. Please be aware that that list is constantly reviewed and you should check it regularly rather than assuming that it remains static.
The rules relating to job suitability and advertising can be found here. This advertising requirement may be removed in the future, but we are yet to hear about any updates from gov.uk.
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.
The type of licence
You’ll need to have decided on the type of licence you want to apply for (licences vary according to the type of worker you want to hire, there’s a big difference for example between hiring a skilled, long term worker (a Tier 2 worker) and a skilled temporary worker (a Tier 5 worker) and different sectors may also influence the licence type.
The Tier 2 General Visa (to be renamed the Tier 2 Skilled Worker Visa), is for those workers who are not coming into the UK as part of a wider corporate group. The Tier 2 Intra-Co Transfer Visa route is for high skilled workers only and is for temporary transfers for typically well-paid roles within a corporate group. This route is not subject to the requirement for a specific level of English. Businesses wanting to do this must ensure they’re compliant with the immigration rules, including demonstrating to the Home Office that the companies involved in the transfer are indeed part of the same corporate group.
You need to apply online and pay the fee, which varies depending on the type of licence and the size of your organisation. Larger organisations pay more. Do it sooner rather than later especially as there is likely to still be a backlog from 31st December 2020.
An additional fee may be required for each foreign worker employed – called the ‘immigration skills charge’. This applies if you’re proposing to engage a worker who is applying for a Tier 2 General Visa or a Tier 2 ‘Intra-Company Transfer Visa to work in the UK for 6 months or more. You can find out more on this fee on .gov.uk here.
The rating of your licence
Licences come with different ratings too. An A-rating is an approved licence where you meet all the criteria and can sponsor a foreign national to come and work in your business. However, it can turn to a B-rating if you do not continue to meet your sponsorship obligations. You’ll need to get and follow an action plan and pay a fee, to be reinstated as an A-rated employer.
If you get a B-rating more than twice in the 4 years that your licence is valid, you’ll lose your licence.
If your sponsorship application is refused
There’s no right of appeal if your sponsorship application is refused, but you can re-apply all over again and there may be a time limit on how long you can wait before re-applying. You may not employ anyone whilst waiting for your sponsorship application to be processed, there is no leeway granted in this regard.