Immigration in the UK post-Brexit

Tessa Robinson


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January 12, 2021

Categories Employment Law Updates

The United Kingdom has now finished its transition period post-Brexit and the new immigration system is fully in force. Here, we provide a summary of the main points that businesses need to be aware of in relation to immigration in the UK.

1) Settlement scheme

If someone enters the UK prior to 30 December 2020, they have until 30 June 2021 to apply for pre-settled or settled status. This will be the easiest way to enter the UK if an individual plans to work in the UK on a permanent basis.

2) Right to work checks

The law on right to work checks has not changed. These must still be completed prior to an individual starting work. If you do these checks on their first day of work you MUST do them before their usual start time in order to ensure you are covered by the statutory excuse. E.g. if their contractual hours at 9am to 5pm, you must do the checks before 9am, even if their start time on the first day is later.

The guidance is clear that you do not need to make retrospective right to work checks on EU/EEA/Swiss Nationals. In other words, as long as the employee has arrived in the UK before 30 December 2020, until 30 June 2021 you can continue to solely check their passport/ID card as their right to work in the UK. They do not need to show you that they have applied for pre-settled or settled status.

After the 30 June 2021 an individual would need to demonstrate they have the right to work in the UK. However, given the guidance clearly that retrospective checks are not required, many employers are taking the view that you will not need to check after 30 June 2021 whether pre-settled or settled status has actually been granted. However, we are hoping for further clarification on this point as employers are concerned that if an individual is refused pre-settled or settled status, they will be employing someone illegally.

For new employees who start work after this date, they will need to show they have the right to live and work in the UK, and one of those methods will be by showing they have been granted pre-settled or settled status.

3) Business visits to the UK from 1 January 2021 – a visa will almost always be required!

The position is slightly misleading at first glance of the government websites. They state EU/EEA/Swiss nationals can visit the UK for up to 6 months without a visa. However, this is not necessarily the case. An individual can come to the UK for up to 6 months without a visa but this is usually for one-off visits and they cannot work. If an individual uses this non-visa visitor route repeatedly, rather than applying for visitor visa, the Home Office will likely refuse an individual entry. However, if there is a delay in obtaining the visa, this non-visa route can be useful for one visit.

To carry out any type of business activity, an individual will require a ‘visitor visa’. If you know from the outset that visits are going to be more than 1 or 2 in a 6-12 month period, we would recommend opting to pay for at least the 6 month visitor visa from the outset, which currently costs £95.

It is important to recognise that the individual cannot be paid by the UK company under this route as the permitted activities are limited. There is a permitted paid engagements visa but the types of individuals/businesses to which this would apply are extremely limited. Examples include attending seminars or to be briefed on the requirements of a UK based customer where the work for the customer will be done outside of the UK.

If the visit is from an individual from the same company in a different county, the following are also permitted: advising and consulting, trouble shooting, providing training for employees, and sharing skills and knowledge on a specific internal project provided no work is carried out directly with any clients.

The applicant needs to be able to demonstrate they have enough funds to cover accommodation and return travel (either being paid for by themselves, or their non-UK based employer). Any expenses paid by the UK company can be deemed payment and must be limited to genuine day to day expenses such as short taxi rides.

Applications for these visas can be made no more than 3 months in advance, and must be made more than 48 hours in advance.

4) Business visits to European countries from 1 January 2021

This will depend on each countries rules. The government have helpfully pulled the different countries together in one place so companies can easily review the requirements of those they may need to visit.

5) Points based system for skilled workers

Applications under the new points based system opened on 1 December 2020.

An employer will need a sponsor licence for an individual to apply to work in the UK under this scheme. It is unclear whether the skilled worker route will completely replace the Tier 2 (General) but it is anticipated that this is likely. However, there will still be the Tier 2 (Intra-Company Transfer) route available, with updated requirements (the individual will need to be in a certain level role to be able to apply, and it is not a route to settlement in the UK).

The Immigration Rules published on the government website are detailed and provide the legal basis for the system.

For information about immigration in the UK post Brexit, contact Tessa Robinson on 01227 763939.