Introduction
Late applications to EU Settlement Scheme
New points-based immigration system
Sponsor licences
Implications of end of free movement and covid-19
Permitted activities for EEA and UK nationals
New graduate route
The post-Brexit grace period came to an end on 1 July 2021. Free movement has been replaced in the United Kingdom by the domestic immigration system, including the new points-based immigration system (PBIS).
As a reminder, European Economic Area (EEA)/Swiss nationals, excluding Irish nationals (EEA nationals) who want to work in the United Kingdom now need some form of visa permission, irrespective of when they arrived in the country. Employers need to ensure that they understand how this affects their business, how their recruitment plans and budgets are impacted as well as whether their staff have the correct status to allow them to continue working both in the United Kingdom and abroad.
Late applications to EU Settlement Scheme
Eligible EEA/EEA family member employees who failed to apply to the EU Settlement Scheme (EUSS) by the 30 June 2021 deadline can still submit an application, provided there are reasonable grounds for applying late. The list of reasonable grounds is not exhaustive and the Home Office has confirmed that, for an initial period, most late applications will be accepted for individuals who were not aware of the requirement to apply.
It is recommended to encourage any employees who missed the deadline to apply as soon as possible and to offer support for those who need it. Employers should also be aware that some individuals who previously lived in the United Kingdom but had an extended absence or absences due to the covid-19 pandemic may not realise that the Home Office issued a more generous covid-19 absences policy for the EU Settlement Scheme on 10 June 2021, shortly before the main application deadline for the scheme.
Non-EEA family members can still join EEA citizens who were living in the United Kingdom by 31 December 2020. With limited exceptions, the relationship must already have existed by that date.
New points-based immigration system
Throughout the first half of 2021, employers will have already started to see how the new visa rules under the PBIS have been affecting business, particularly when recruiting EEA nationals from overseas. With the previous routes for sponsoring workers now being significantly reformed, it will be important for employers to have a good understanding of the system and how to navigate it.
The Frontier Worker permit remains an option for EEA-national cross-border workers, provided they were travelling to the United Kingdom for work on or before 31 December 2020, either on an employed or self-employed basis. These individuals will not be required to apply for a visa under the PBIS. However, from 1 July 2021 onwards, it is no longer sufficient for them to show evidence of previous work in the United Kingdom to be permitted entry clearance in a work capacity. Instead, such cross-border workers must ensure that they have their Frontier Worker permit in place before next travelling to the United Kingdom.
The Temporary Worker – International Agreement Worker visa (Tier 5) provides a short-term visa solution for workers entering the United Kingdom to provide a service under a contractual agreement covered by international law. Employers operating in sectors that relied on the EEA-national labour market prior to the end of the post-Brexit grace period, such as the manufacturing and energy industries, should consider applying for a Tier 5 (International Agreement) Sponsor Licence now to be able to continue recruiting EEA citizens.
In-country switching from the Intra-company Transfer (ICT) visa into the Skilled Worker route is now permitted following the end of the cooling-off rule and introduction of more flexible switching provisions. This option will be useful for existing ICT employees required in their roles longer-term and for ICT employees who ultimately want to settle in the United Kingdom where this was not previously an option. It is worth remembering that any time accrued on the ICT visa route will not count towards settlement in the United Kingdom.
Also on the topic of the ICT visa route, the Migration Advisory Committee (MAC) has been seeking stakeholders' views on the route's operation and effectiveness. This includes exploring potential expansion of the immigration options for overseas businesses aiming to set up a UK presence. The MAC is due to report back to the government in October 2021 (for further details please see "MAC call for evidence on intra-company transfer route").
Finally, the Home Office has been consulting sponsors on the design of an improved sponsorship system for workers. It is expected that further engagement will take place later in 2021 (for further details please see "Home Office seeks details of current costs of immigration sponsorship").
If you have not used the sponsorship system before, you may find you will now need to use it, as employing nationals from the EEA and beyond will require a sponsor licence in some cases. It is particularly important to consider applying for one now that the grace period has ended so that you are ready to use it when you need to recruit, especially if you operate in a sector that relies heavily on EEA nationals. Sponsor licence applications can take up to eight weeks to process so it pays to act in advance.
If you currently have a sponsor licence, you will need to ensure that it is up-to-date and accurately reflects your organisation's current structure. Where changes have occurred on an existing sponsor licence, you may need to notify the Home Office. You should also ensure your human resources processes are in good shape to meet your growing sponsor licence duties in the event of a Home Office audit. For organisations that have an ICT sponsor licence only, applying to add a Skilled Worker licence will be helpful to allow sponsorship under the Skilled Worker route too.
Sponsor employers should also maintain an understanding of the temporary Home Office covid-19 concessions in place during the pandemic, and how these change over the coming months. Whilst the Home Office has not required remote working during the pandemic to be reported as a formal change of work location for sponsored workers, the concession will be withdrawn and potentially with very little notice.
Employers will need to be aware of any relevant reports to submit on the licence, as well as ensure ahead of time that any arrangements with sponsored workers for long-term remote working are in line with sponsor compliance duties.
Implications of end of free movement and covid-19
All UK employers have a responsibility to ensure that their employees have the right to work in the United Kingdom before they start work and throughout their employment. The end of the grace period on 1 July 2021 has resulted in changes to the United Kingdom's right to work check system. One of the most significant of these changes is that EEA passports/ID cards are no longer acceptable evidence of a right to work in the United Kingdom.
The Home Office has confirmed that retrospective checks are not required for EEA nationals and their family members who commenced employment and had a valid right to work check completed by 30 June 2021. However, employers must be mindful of the appropriate steps to take on discovering an existing employee failed to apply for EUSS status before the deadline, despite being entitled to do so. Under the Home Office's transitional arrangement, which will end on 31 December 2021, clear steps are outlined to guide employees and employers through this process.
In addition, the Home Office's temporary adjusted right to work check process that was introduced to address the logistical issues created by covid-19 is scheduled to end on 31 August 2021. With many organisations intending to continue remote working arrangements beyond this date, employers will need to think about appropriate changes to internal processes to be able to manage right to work checks in a compliant manner. (For further details on current guidance on right to work checks, please see "New Home Office guidance published on right to work checks from 1 July 2021" and for further details on the Home Office's plans for ending adjusted right to work checks, please see "Home Office extends adjusted right to work checks".)
Permitted activities for EEA and UK nationals
EEA nationals visiting the United Kingdom are now required to do so on the same basis as all other visitors. The allowed activities for visitors have been expanded, however the position is significantly restricted in comparison to free movement. EEA nationals and their employers will need to adjust to the new restrictions and ensure that they are complied with.
The end of free movement not only affects EEA nationals who work in the United Kingdom. It has implications for UK nationals who live in, commute to or may want to work on the continent.
If you have a workforce that spans Europe, it is important to factor in the new rules on visiting and working in Europe. UK nationals may now need a visa to work in Europe, which requires local visa support and additional time and financial input.
The new graduate route was launched on 1 July 2021, opening up a flexible unsponsored route for eligible international students to stay in the United Kingdom after graduation. The Graduate visa is an attractive option for businesses taking on interns or employees on a fixed-term contract where there is no guarantee that the role will lead to a permanent hire. Employers should however be aware that it is only possible to switch to the graduate route from a Student visa.
For further information on this topic please contact Andrew Osborne, Stephen O'Flaherty or Priya Gandhi at Lewis Silkin by telephone (+(0)20 7074 8262) or email ([email protected], stephen.o'[email protected] or [email protected]). The Lewis Silkin website can be accessed at www.lewissilkin.com.