Employers’ checklist: how should we prepare for the new immigration rules?

Action

Why

Relevant Links

Seek advice as to how you will be affected by the new immigration rules

High Priority

These rules mainly change the provisions for Tier 2 skilled workers and will apply to all EEA and non-EEA nationals arriving in the UK after 1 January 2021. However, given the size of the overhaul for Tier 2 workers, it is likely to take employers some time to fully get to grips with the new rules. We therefore advise employers to review the new rules as early as possible and seek advice as to how they will affect their business.

Employees arriving from 1 January 2021 will generally need to have been offered a job requiring a skill level of at least level 3 under the Regulated Qualifications Framework (equivalent to A-Level) by an approved employer sponsor with a valid sponsor license. The job must pay at least the relevant salary threshold. Employees may be able to avoid the salary threshold for certain roles, for example if they are on the shortage occupation list. 

We recently published an article on the new immigration system due to begin on 1 January 2021.

Article: What is the new ‘Australian’ style points based system? 

New immigration system: what you need to know (Home Office/ UK Visas and Immigration)

The UK's points-based immigration system: an introduction for employers (UK Visas and Immigration) 

Apply for a sponsor licence if required

High Priority

Those looking to hire employees from either the EEA or a third country after 31 December 2020 will need to apply for a sponsor licence if they do not currently hold one. Existing sponsor licences will be valid under the new system.

There is likely to be a surge in applications for sponsor licences as we approach the start of the new system on 1 January 2020, and so we recommend applying now rather than waiting until the new system begins. The waiting time for a decision can typically be up to six weeks, and the number of applications likely to be submitted in November and December may inflate this waiting time.

If employers are looking to hire overseas workers in the new year, they should now begin assessing whether the jobs will meet the new requirements. If this is not properly considered, employers may find that their application is rejected after they have expended significant time and expense on it. This will, of course, have a knock-on effect on the employer's ability to employ overseas workers. 

There are also some situations in which a sponsor licence will not be necessary to hire workers from overseas. For example, the new rules provide for a 'Global Talent' and 'Innovator' categories (previously under Tier 1). Preparing in good time will mean that employers do not expend time on an application which is ultimately unnecessary.

Recruiting people from outside the UK from 1 January 2021 (Home Office/ UK Visas and Immigration)

UK visa sponsorship for employers

Liaise with current or prospective employees from EEA States about the EU Settlement Scheme

Medium Priority

Under the EU Settlement Scheme, EEA nationals living in the UK before the end of December 2020 have until 30 June 2021 to apply for the right to work in the UK for settled (if they have lived in the UK for a continuous 5 year period) or pre-settled (if they have less than 5 year's’ continuous residence) status. After this, they will have to apply for the right to work under the new immigration system outlined above.

Applying to the EU Settlement Scheme confers a number of advantages, principally that the application process is free. Applications under the new immigration system will be much more costly and time consuming. 

Waiting until closer to the deadline increases the chances that an employee's application will be delayed by the number of other applications, which could push any approval past the 30 June 2020 deadline and cause issues around the employee's right to work. Any EEA national who fails to apply by 30 June 2021 will lose the right to work in the UK, and any employer employing them may be subject to criminal prosecution.    

For those who were otherwise planning on moving to the UK and commencing employment after 31 December 2020, employers should consider bringing forward their start date to before 1 January 2021 so that the employee can apply under the EU Settlement scheme in time.

Jay Moghal, Wilsons' immigration consultant, recommends that to apply as soon as possible using a mobile/tablet as the desktop version can take longer and requires to documents to be posted as opposed to uploaded.

Apply to the EU Settlement Scheme (settled and pre-settled status)

Review whether there are any professional regulatory/registration requirements for the specific work/services which EEA or Swiss employees will be carrying out

The Professional Qualifications and Services (Amendments and Miscellaneous Provisions) (EU Exit) Regulations 2020 came into force on 24 September 2020. These regulations bring to an end the provisions of the Recognition of Professional Qualifications Directive which formerly governed the ability of professionals from one EEA state (or Switzerland) to have their professional qualifications recognised in other EEA states (or Switzerland)

Article: All quiet on the Brexit front – a November employment law update 

Review your internal policies and training

Low priority

HR and recruitment departments should consider signing up to training on the new immigration rules to reduce the likelihood of mistakes which lead to delays in hiring, loss of talent or breaches of the law.  For example, the application for a sponsor licence involves an online form and the submission of supporting documents to provide. These documents must be submitted within five working days of the online form, and must be in a certain format and contain certain information. Training may be needed to ensure that HR and recruitment departments know what they will have to submit and when.

HR departments should also ensure that their staff handbooks are up to date and account for the new rules. Particular attention should be paid to any working from home policy if the employer has one, and if not, they should consider introducing one. Some employees from overseas may request to work from their home countries after the end of the transition period, so employers should have suitable policy in place to deal with such requests. They should also consider the possible tax and social security implications of having employees working abroad.

Employees working abroad (HMRC Guidance)

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