As you are all aware, we will have a new immigration system in the UK from the 1 January 2021.
We can prepare now for the new system and the transition period which ends on the 30 June 2021.
Current Rules
EEA and Swiss nationals will continue to be able to rely on their free movement rights until 31 December 2020 so you should continue to undertake the normal right to work checks.
EEA and Swiss nationals who arrive by 31 December 2020 are covered by the Eu Settlement Scheme (EUSS). They have until the 30 June 2021 to apply for the settled or pre-settled status under the EUSS. Therefore, you should continue to undertake the normal right to work checks on them until then. You should not insist on EEA and swiss nationals to confirm their EUSS status until after 30 June 2021.
Transition Period
Prior to expanding on the new rules effective from 1 January 2021 for anyone who comes to the UK, there is a transitional period which all businesses need to be aware of but only in relation to EEA and Swiss nationals.
EEA and Swiss nationals that come to the UK before 1 January 2021 will be eligible for the EU Settlement Scheme (EUSS). They will have until 30 June 2021 to make an application under that scheme.
The government introduced the EUSS, which went live on 29 March 2019, as an application process for EU, EEA or Swiss citizens (EU citizens) living in the UK to remain in the UK after Brexit. Successful applicants are given either a settled or pre-settled status. Since the UK will no longer be an EU country, EU citizens living and working in the UK will not legally be allowed to stay in the UK without applying successfully through the scheme., The only difference between settled and pre-settled status is that a settled status is awarded to those who have already lived in the UK for a continuous 5-year period, whereas pre-settled status is awarded to those who do not have 5 year’s continuous residence but came to the UK before 31 December 2020. With regards to the latter, once the individual concerned has reached 5 year’s continuous residence, they must apply to change this to settled status before their pre-settled status expires.
They should all be applying for the EU Settlement Scheme now please use the link https://www.gov.uk/transition-check/questions:
If they are not currently in the UK they can still apply please use the link https://www.gov.uk/guidance/eu-settlement-scheme-applying-from-outside-the-uk#:~:text=You%20can%20apply%20for%20status,card%20with%20a%20biometric%20chip.
Just to remind you that if an EU National does not make the application before the 30 June 2021 (or is simply not eligible to apply) then they would then need to apply for a work visa under the new rules.
Another point to make is that if the EU National is outside of the UK on the 31 December 2020 and they have not applied or received their status approval they may not be able to enter the UK without the status they cannot simply relay on the old/existing documentation that has allowed them entry and the ability to work in the UK so it is very important that they apply now.
The new system will apply to EEA and Swiss nationals, aside from Irish nationals (EEA nationals), and is due to come into force on 1 January 2021. It will be possible to make applications under the new rules from 9am on 1 December 2020. EEA nationals will not be able to apply in-country under the new rules until 11pm on 31 December 2020, unless they are applying under the EU Settlement Scheme as a S2 healthcare visitor or a service provider from Switzerland. Those who apply for entry clearance (other than under the same categories) will have this granted from 1 January 2021 at the earliest.
Do we need to change our Right to Work Checks?
No. The way in which right to work checks are conducted and the party responsible for conducting the checks has not changed. You should continue to undertake such checks by obtaining the relevant documentation, checking said documentation and accurately recording the details of the check.
The only change, which we expect the Home Office to update in the employer’s guide to right to work checks, is what document needs to be obtained and checked when undertaking right to work checks.
New Immigration Rules
EEA and Swiss citizens entering the UK from 1 January 2021 will not be able to apply for settled or pre-settled status under the EUSS. From 1 January 2021 EEA and Swiss citizens will need to apply and qualify for entry to stay in the UK on the same basis as non-EEA and Swiss citizens. This is as a consequence of the termination of free movement between the UK and EEA on 31 December 2020. Consequently, EU citizens will require a visa which permits them to work in the UK under the new immigration system which means an employer will need to see evidence of the EEA or Swiss citizens’ visa and passport/identity card as part of the RTW checks.
For the sake of clarity, EU citizens will no longer be able to rely on their EU passport or identity card to provide their RTW in the UK. They will need to ensure that they have the appropriate visa or status under the EUSS.
The Points-Based System (PBS)
At the heart of the new immigration rules is the PBS which is designed to cater for highly skilled workers, skilled workers, students and a range of other specialist work routes including routes for global leaders in their field and innovators.
Under the PBS, anyone coming into the UK for work must meet a specific set of requirements for which they will score points. Visas are then awarded to those who gain enough points. Importantly, it is the responsibility of the migrant to obtain points and evidence the points scored in order to obtain their desired immigration status.
Under the ‘Current Rules’ section above, the existing route for non-EEA and Swiss citizens was summarised whereby the relevant visa which non-EEA and Swiss citizens would apply for in order to come and work in the UK is the Tier 2 visa. Specifically, the most common type of visa (for those seeking permanent employment in the UK) applied for is the Tier 2 (General) visa. Under the new immigration system, effective from 1 January 2021, the Tier 2 (General) immigration route is being re-categorised as the ‘Skilled Worker’ route. With that said, existing Tier 2 (General) sponsors will automatically be granted a new Skilled Worker license, with an expiry date consistent with their current license.
For information purposes only, under the Skilled Worker route, an applicant will need a total of 70 points to be able to apply to work in the UK. See table below.
| points-based immigration system: an introduction for employers published by the UK Visas and Immigration department. Characteristics | Mandatory/Tradeable | Points |
|---|---|---|
| Offer of job by approved sponsor | Mandatory | 20 |
| Job at appropriate skill level | Mandatory | 20 |
| Speaks English at required level | Mandatory | 10 |
| Salary of £20,480 to £23,039 or at least 80% of the going rate for the profession (whichever is higher) | Tradeable | 0 |
| Salary of £23,040 to £25,599 or at least 90% of the going rate for the profession (whichever is higher) | Tradeable | 10 |
| Salary of £25,600 or above or at least the going rate for the profession (whichever is higher) | Tradeable | 20 |
| Job in a shortage occupation as designated by the Migration Advisory Committee | Tradeable | 20 |
| Education qualification: PhD in a subject relevant to the job | Tradeable | 10 |
| Education qualification: PhD in a STEM subject relevant to the job | Tradeable | 20 |
One of the key points to take from the above table is that there are mandatory characteristics which all applicants must satisfy. These amount to a total of 50 points out of the required 70 points. There is a total of 130 points available.
Although there are numerous characteristics which an applicant must satisfy in order to reach 70 points.
The very first mandatory characteristic which the applicant must have is an offer of a job by an approved sponsor. Therefore, from 1 January 2021, businesses will need to sponsor EEA and Swiss citizens who they wish to engage to undertake work for them in the UK or any EEA and Swiss citizen (who came to the UK before 31 December 2020) they wish to retain but has failed to apply for settlement status under the EUSS before 30 June 2021. With regards to the latter, businesses may wish to encourage their EEA and Swiss workforce to apply under the EUSS if they haven’t already done so as soon as possible.
Common Travel Area
The new immigration rules do not apply to Irish citizens who can continue to enter and live in the UK as they do now under the Common Travel Area (CTA) arrangement. The CTA is a long-standing arrangement between the UK, the Crown Dependencies (Bailiwick of Jersey, Bailiwick of Guernsey and the Isle of Man) and Ireland that pre-dates both British and Irish membership of the EU and is not dependent on it.
To elaborate, Irish citizens living in the UK or a British citizen living in Ireland can freely travel within the CTA and enjoy associated rights and privileges, including the RTW in the UK. This will continue to be the case once free movement ends at 11pm on 31 December 2020.
Due to the fact Irish citizens can freely travel within the CTA, there is no need to apply under the PBS or apply for a visa under the Skilled Worker Route to work in the UK. UK businesses should, therefore, undertake the normal RTW checks in relation to Irish citizens.