The UK’s departure from the EU has seen the UK develop a new immigration system. This has meant the end of freedom of movement between the EU and UK, and a new points based system by which people can apply to live and work in the UK.
From the 1st Jan 21, this system applies to EU nationals as well as non-EU nationals (with the exception of Irish citizens who will retain their right to live and work in the UK through the Common Travel Area).
EU citizens resident in the UK before the 31st of Dec 2020 were eligible for the EU Settlement Scheme, as are EEA and Swiss nationals. The below information on EU citizens and the EU Settlement scheme also applies in the same way to EEA and Swiss nationals unless otherwise stated.
Immigration into the UK from 2021
The UK have introduced a points-based immigration system from 2021.
The government is currently considering the Migration Advisory Committee (MAC) report‘s recommendations before setting out further details on the UK’s future immigration system.
There has been no change to the rights and status of EU citizens currently living in the UK until 30 June 2021. EU citizens and their families can apply to the EU Settlement Scheme to continue living in the UK.
Current EU workforce in the UK
EU Settlement Scheme employer toolkit:
Guide for those applying for the EU Settlement Scheme:
EU citizens currently resident in the UK will not be required to leave at the end of the transition period.
EU citizens resident in the UK before the 31 December 2020 will have until 30 June 2021 to apply for the EU Settlement Scheme.
Successful applications to the EU Settlement Scheme will allow EU citizens to continue living in working in the UK.
The EU Settlement Scheme is a government scheme that can provide EU citizens currently resident in the UK with the right to continue living and working in the UK beyond 31 December 2020.
It is free for EU citizens to apply for the EU Settlement Scheme.
The applications are handled online through a process that is quicker and simpler than other visa applications and the Home Offices are looking for reasons to accept applications.
The online application consists of three key stages:
- An identity check
- A UK residency check
- A criminal record check.
Successful applicants will be granted either ‘pre-settled status’ or ‘settled status’.
It is important to engage your workforce and encourage them to apply for the settlement scheme if they are planning to stay in the UK.
Successful applicants to the EU Settlement Scheme will be granted either ‘pre-settled status’ or ‘settled status’.
Settled status will be granted to successful applicants who can demonstrate five or more years of continuous residency in the UK. In this context ‘continuous residency’ means at least 6 months out of every 12 month period. Those granted settled status can continue living and working in the UK for as long as they wish. You can spend up to 5 years in a row outside of the UK without losing your settled status (4 years for Swiss citizens).
Pre-settled status will be granted to successful applicants who can demonstrate less than five years of continuous residency in the UK. Getting pre-settled status requires the EU national to prove they have resided in the UK at some point during the previous six months – there is no minimum time period requirement within this six month period, and an EU national need only have been resident for a day in the last six months (provided this day is prior to the end of the transition period). Those granted pre-settled status can continue living and working in the UK for a further five years, allowing them to stay long enough to be eligible for settled status if they wish to remain in the UK indefinitely. An EU national would need to be present in the UK for six months out of a year for it to be able to count towards their eligibility for Settled Status and an EU national with pre-settled status will lose this status if they are absent from the UK for two years in a row.
Both schemes are open for any EU nationals resident in the UK by 11pm 31st December 2020. While applications are open until 30th June 2021, applicants must be able to demonstrate that they were resident before this date.
If someone is granted pre-settled status, they will be able to combine the time they spent in the UK before 31 December 2020 with the time they spent in the UK after 31 December 2020 to demonstrate the five years of continuous residency in the UK required for settled status.
1. An EU citizen has been resident in the UK for one year prior to 31 December 2020.
2. They apply to the EU Settlement Scheme and are granted pre-settled status, giving them the right to stay in the UK for a further five years
3. After living in the UK with pre-settled status for four years, they become eligible for settled status as they can demonstrate five years of residence in the UK (i.e. one year before 31 December 2020, four years after 31 December 2020).
4. They successfully apply to upgrade to settled status, which gives them a permanent right to live and work in the UK.
Pre-settled status does not convert to settled status automatically and those with pre-settled status will need to apply to upgrade to settled status.
Some non-EU family members and partners of EU citizens will also be able to apply to the EU Settlement Scheme through their relationship with an EU citizen.
Further government guidance can be found here
Citizens of an EU country, Iceland, Liechtenstein, Norway or Switzerland, will be able to bring close family members to the UK after 31 December 2020 if both of the following apply:
- your relationship with them began before 31 December 2020
- you are still in the relationship when they apply to join you
If you’re a Swiss citizen, you’ll also be able to bring your spouse or civil partner to the UK until 31 December 2025 if both of the following apply:
- your relationship with them began between 31 December 2020 and 31 December 2025
- you are still in the relationship when they apply to join you
If these conditions do not apply then family members would be able to apply through the applicable UK immigration rules but not through the EU Settlement Scheme.
EU immigration into the UK for work
Freedom of movement will end at 11pm on 31 December 2020. After this date the UK will implement a new immigration policy which will treat EU and non-EU citizens equally.
EU citizens will be able to enter the UK by using an EU passport or national ID card up until 11.00 p.m. on 31st December 2020. EU, EEA and Swiss citizens will also be able to use the ePassport gates, although this will be kept under review.
Until at least January 2026, the UK will recognise identity cards used by EU citizens who are resident in the UK before the end of the transition period and hold status under the EU Settlement Scheme. For newly arriving migrants the use of such documents will be phased out.
Further information can be found on GOV.UK here.
EU citizens will still be able to pass through the UK border with a valid EU passport or ID card until 11.00 p.m. on 31st December 2020.
Right to work checks
Right-to-work checks for EU citizens will remain unchanged until 30 June 2021. Until this date, applicants can prove their right to work using an EU Passport or national ID card for EU, EEA or Swiss citizens. EU, EEA or Swiss citizens and their family members may also choose to use the online right to work checking service.
Employers will not be required to differentiate between those who were resident before the UK left the EU and those who came to the UK after the UK left the EU.
Employers will not be required to check that their employees have obtained Settled Status, or pre-Settled Status. For EU citizens to get Settled/pre-Settled Status they must have been in the UK before 11pm on 31 December 2020.
New employees may choose to demonstrate their right to work by demonstrating their Settled Status or pre-Settled Status but employers cannot require them to do so until after 30 June 2021 and must not discriminate against EU nationals.
More information on employing EU citizens in the UK is available on Gov.uk here.
Right to work checks should be carried out before the worker starts carrying out work for the employer. For someone who is an EU, EEA or Swiss citizen who provides their passport or ID card as proof of their right to work, then provided the initial right to work check has been carried out correctly, it should not need repeating.
More guidance on carrying out right to work checks correctly is available here.
NB: There may be exceptional circumstances in which an employer knowingly employs individuals who have not obtained the necessary leave. This could leave the employer open to both civil penalties and prosecution, regardless of whether right to work checks have been carried out.
The new immigration system will come into effect from 1 January 2021, meaning that EU citizens newly moving to the UK to work will need to get a visa under the new immigration system.
If an EU citizen was resident in the UK prior to 11pm 31 December 2020 they can apply for Settled or pre-Settled Status.
If you are an employer planning to sponsor skilled migrants for employment under the skilled worker visa you will need to be an approved sponsor.
More information is available on Gov.uk here.
Current UK workforce in the EU
The Withdrawal Agreement secures the rights of UK nationals living in another EU country at the end of the transition period.
Each member state is adopting its own measures to ensure UK nationals resident in their country can remain. UK citizens in the EU may need to register and apply for residency in the EU country they are living in before 31 December 2020 and will have until at least 30 June 2021 to do so. This application should be short, simple, and be either free or have a cost comparable with applying for a similar document (e.g. ID card or passport).
More information on living in the EU is available on Gov.uk here.
The European Commission have compiled more information here.
The Institute for Government have also compiled an explainer page on British citizens in Europe which is available here.
THE FUTURE IMMIGRATION POLICY
A points-based immigration system is a form of immigration policy by which those wishing to immigrate into the country must achieve a certain number of points in order to be granted a visa. This is done by meeting certain requirements.
The UK system will cover medium to high skilled workers, with no general routes for entry level workers. A medium to high skilled role is set at a minimum educational level of RQF Level 3 (i.e. a role requiring an A level or equivalent qualification or experience). The skill level is applied to the role that is being filled by a worker and not the qualifications the worker holds.
Prospective workers must earn at least 70 points to be eligible for the new Skilled Visa and be sponsored by their prospective employer. The first 50 points must be obtained by through the mandatory criteria and the remaining 20 via a tradeable characteristic.
Offer of job by approved sponsor
Job at appropriate skill level (RQF3 or above)
Speaks English to AS level or equivalent
Salary of £20,480 to £23,039 or at least 80% of the going rate for the profession/ 70% is applicant is a new entrant (whichever is higher)
o Note this is the minimum salary threshold which must be met, and it cannot be below £20,480
Salary of £23,040 to £25,599 or at least 90% of the going rate for the profession (whichever is higher)
Salary of £25,600 or above or at least the going rate for the profession (whichever is higher)
Job is listed on the Shortage Occupation List as designated by the MAC
PhD in a subject relevant to the job
PhD in a STEM subject relevant to the job
More information on the new system can be found here.
In order to hire workers through the skilled worker route from January 2021 you must be a Home Office licensed sponsor. To make an application you must check that your business is eligible, choose the type of licence you would like, decide who will manage sponsorship for your business, and then apply online. Applications take around 8 weeks to process and have fees ranging from £536-£1,476 depending on the visa and business size. Further guidance can be found here and here. In August 2020 a guide for employers was also published.
Existing sponsors will be automatically granted a new licence on the same terms as their current sponsorship.
There are several charges under the immigration system, some of which must be paid directly to government by the employer, and others which the employer may choose to pass on to the employee (but may also choose to cover).
Employers must pay:
- the Sponsor License Fee: £536 for small businesses to £1476 for medium to large businesses
- the Immigration Skills Charge: £1000 for a year, £500 for every additional 6 months (reduced to £364 for small businesses/charities)
- Employers may need to underwrite their prospective employee’s ability to maintain themselves and their dependents if their prospective employee is unable to do so.
Employers may choose to pay:
- Visa fee (up to three years): £610 if applying overseas or £704 if applying in the UK
- Visa fee (over three years): £1220 if applying overseas or £1408 if applying in the UK
- Shortage occupation list role visa fee (up to three years): £464
- Shortage occupation list role visa fee (over three years): £928
- Immigration Health Surcharge: Currently £400, set to increase to £624 from 1 October 2020 (if staying beyond 6 months). Note that dependents normally have the same charge.
- Certificate of Sponsorship: £199 per sponsored employee
- Prospective employees must be able to demonstrate that they can support themselves and their dependents (if unable to do so then the responsibility lies with the employer).
Roles that are on the shortage occupation list (SOL) are worth 20 points under the points-based immigration system. This is to ensure the system can meet specific labour shortages in the UK market. In March 2020 the MAC was commissioned to create a UK SOL which focuses on medium skilled (RQF3-5) occupations. A call for evidence ran from 10th April to 24th June, and the MAC has now reported its review.
The current SOL can be found here.
In 2018 the government launched the Seasonal Workers Scheme Pilot for 2,500 workers in the edible horticulture sector for the 2019 season. This was expanded to 10,000 permits for 2020, and the government will make further announcements on the future of the scheme in due course.
The youth mobility scheme will continue under the new immigration policy; this is a temporary route for 18-30 year olds from eight participating countries, who can come and work/travel in the UK for up to two years. There is scope to then switch to another permanent visa route, as long as they meet the requirements. Migrants coming under this route must have £1,890 in savings, pay the visa application charge and the immigration health surcharge if staying beyond 6 months.