The end of the post-Brexit transition period brings challenges for the construction industry in many areas, not least concerns over the continued ability to source and recruit sufficient labour. Following the end of free movement, the UK’s new Points Based Immigration System applies to EU and non-EU citizens alike. Minimum skills thresholds apply and so UK companies no longer have the unlimited access to EU workers to fill lower-skilled roles. Crucially for the construction sector, this means that it is not possible to sponsor labourers under the new rules as the role is not considered skilled enough for sponsorship. However, at the same time, the overall skills threshold has been reduced, opening up a wide range of other construction-related roles now eligible for sponsorship.[1]

Reduction in skill level – Key benefits for the construction industry

Under the previous system, typical construction-related occupations for which companies were able to sponsor migrants included: construction managers and directors; project managers in construction and building engineers. Under the new system it is still possible to sponsor migrants under these roles, but it is now also possible to sponsor migrants for the following ‘lower skilled’ roles for the first time: building services consultants; construction planners; and construction foremen and supervisors. Sponsorship is also now possible for carpenters, welders and electricians.

EU nationals already residing in the UK before the end of the transitional period

EU nationals residing in the UK for more than 5 years as at 31 December 2020 will be able to apply for ‘settled status’ (permanent residency) under the existing EU Settlement Scheme (EUSS) until 30 June 2021. Those who were residing in the UK as at 31 December 2020, but for less than 5 years, can also use the EUSS to obtain ‘pre-settled’ status with the option to apply for settled status at the five year mark, provided they meet the residency requirements – typically not being outside of the UK for more than six months in each of the five qualifying years, unless one of a number of limited exemptions applies.

New EU arrivals to the UK

EU nationals arriving into the UK for the first time from 1 January 2021 for the purposes of work will require a work visa and sponsorship under the new immigration system for the very first time.

Sponsoring workers under the new system

The previous Tier 2 (General) category for skilled workers with a job offer in the UK has transitioned into the new ‘Skilled Worker’ route. Tier 2 (Intra-Company Transfer) categories for existing employees of linked overseas entities are now known simply as the ‘Intra-Company routes’.

The requirement for employers to hold a sponsorship licence, with its associated compliance duties, remains an integral part of the new system.

The ‘Skilled Worker’ route - some further positive developments

The annual cap on skilled workers entering the UK has been suspended. This means that, for the time being at least, there will no longer be a limit on the number of migrant workers who can come to the UK under this category each year.

In welcome news for all business sectors, the requirement to advertise a role in a Home Office prescribed manner and showing that no suitably qualified settled worker could be found before sponsorship was possible (known as the ‘Resident Labour Market Test ‘), has been abolished. However, sponsors still need to demonstrate a genuine need for the role in question and that the migrant they wish to sponsor has the necessary skills, qualifications and experience required for the role in question.

The overall minimum salary threshold has been also reduced, although the role will still need to meet the ‘going rate’ for the relevant job, if higher. Finally, the ‘cooling off’ period no longer applies and it is easier to switch into this route from within the UK.

Conclusion and the future

Whilst construction companies can continue to freely employ EU nationals already in the UK, who have registered under the EUSS, or are eligible to apply before the deadline, meeting future labour needs may inevitably become more difficult as the new rules start to really kick in. The UK currently has no designated route for lower skilled workers other than for those working for the agricultural sector and, even then, the category remains under review.

Employers will need to budget for the increased costs of sponsoring EU as well as non-EU migrants and the cost of sponsoring can be high. Those without a sponsor licence will need to apply for one if they want to sponsor EU migrants going forward, assuming the role is eligible. The minimum salary requirement for sponsorship under the relevant job type must also be met. EU migrants may become eligible for a Youth Mobility visa in due course, which enables nationals of certain countries aged 30 or under to obtain a two year visa permitting them to work for any employer in the UK. This route doesn’t currently incorporate EU nationals, but may do so in the future. This will depend on the result of on-going trade talks with the EU.