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07 October 2020
From 1 January 2021 there will be a new immigration system in the United Kingdom. Due to free movement ending, the new system will apply to EEA and Swiss nationals as well as non-EEA nationals. Employers must start to prepare for this change now, including by:
The below timeline outlines the areas that employers must consider and suggests timeframes for taking action.(1)
Inform current EEA and Swiss employees and their family members about their eligibility for EUSS and British citizenship
Employers should do this now, if they have not already, so that the relevant employees can easily prove their UK immigration status and plan the timing of any British citizenship application.
Current EEA employees and their family members who are eligible but do not apply to the scheme by 30 June 2021 will lose their right to live and work in the United Kingdom under free movement law. Aside from the obvious business disruption and anxiety that this would cause, applications under the United Kingdom's immigration system come at a significant cost, whereas applications under the EUSS are free. Employers should ensure that their employees are aware of their eligibility for pre-settled or settled status under the scheme. Thinking about the timing of upcoming moves of EEA nationals to the United Kingdom can save money in the long term.
The end of the transition period also has implications for how and when EEA nationals and their family members can apply for British citizenship, with it being beneficial for some individuals to ensure that their application for British citizenship is submitted by 31 December 2020.(2)
Update HR policies to include remote working and remote right-to-work checks
All UK employers must ensure that their employees have the right to work in the United Kingdom before they start work and throughout their employment. Carrying out a right-to-work check properly will shield employers from liability for a civil penalty if they are found to have inadvertently employed somebody who has no right to work in the United Kingdom. The requirements remain in place; however, certain temporary allowances having been made due to COVID-19.(3) HR teams must stay on top of COVID-19 right-to-work compliance to avoid being exposed to illegal working penalties.
Understand the new system. How will it work? To whom will it apply? How much will it cost?
Businesses will need to familiarise themselves with the implications of the end of free movement and the new immigration system to avoid losses in productivity and talent, as well as minimising costs. This will be possible only if employers are aware of the actions that they must take to adjust their recruitment and employee retention strategies.
The existing routes for sponsoring workers will be significantly reformed. For skilled workers, some of the existing requirements such as resident labour market testing will be removed, and it will be possible to sponsor skilled workers for jobs at A-level rather than degree-level equivalent. There will also be lower salary thresholds and the introduction of a 'tradeable' points-scoring criteria (for further details please see "Home Office provides consolidated details of new immigration system").
Review HR processes to ensure that compliance standards are met
The Home Office sets stringent compliance standards for employers of migrants and, once they have been breached, it is often impossible to correct them retrospectively. Reviewing HR processes to ensure compliance with sponsorship and right-to-work obligations will give employers the certainty required to focus their efforts on obtaining and retaining talent.
Employers could consider carrying out a sponsorship or a right-to-work mock audit if they need to renew or expand their sponsor licence, particularly as the Home Office has now resumed sponsor compliance visits (for further details please see "Home Office issues communications to sponsors regarding licence renewals").
Review or apply for sponsor licence if recruitment from European Economic Area and rest of world after January 2021 is likely
Employers should do this now to ensure that a new or expanded licence is obtained before the new system goes live. Sponsor licence applications can take up to eight weeks to process.
The Home Office has written to sponsors to confirm that renewals can be submitted earlier than the normal month ahead of expiry (for further details please see "Home Office issues communications to sponsors regarding licence renewals"). The queues for consideration of sponsor licence applications will likely only grow longer towards the end of 2020, because many sponsors' licences are due for renewal if they originally became a sponsor when the points-based system was launched in 2008. By applying in the coming months, employers will beat the inevitable rush at the end of 2020 and avoid suffering delays with regard to new hires as a result.
Review international recruitment processes to develop efficient mechanisms for analysing skill requirements, shortage occupations and Standard Occupational Classification codes for sponsored workers
An out-of-date recruitment strategy will increase the risk that relationships with existing employees and new hires will be damaged if mistakes are made. Adapting early will give employers' recruitment teams confidence that they understand the new processes, saving the business headache, time and money.
Employers should consider whether they require training on what jobs will be eligible for sponsorship under the new system and the criteria that will need to be met.
Review whether a non-sponsored working visa route may be suitable for current and potential employees
Employers should identify relevant employees before November 2020 to allow time for the full range of options to be analysed before the new system is implemented.
Existing employees with upcoming visa expiries and prospective employees due to start work in 2021 may be eligible for an expanded range of non-sponsored immigration categories under the new system.
The Global Talent, Innovator and Start-up visas provide skill-specific routes to live and work in the United Kingdom, while the Youth Mobility and UK Ancestry visas are available for some individuals (for further details please see "Innovator visa: everything you need to know" and "Start-up visa: everything you need to know"). With more non-sponsored working routes set to be introduced, including a new route for Hong Kong residents, companies should be aware of the immigration options available to their current and potential employees. Not only will this allow for improved recruitment strategies, but the absence of fees specific to sponsorship means that these routes can be cheaper.
Consider bringing extension or switching applications for current employees forward where they would usually be completed in early 2021
Employers should identify relevant employees before November 2020 to allow for applications to be processed under the current arrangements where appropriate.
At present, companies can employ individuals on temporary visas who may not qualify to switch to permanent routes under the new system. Failure to identify relevant employees early enough to submit applications to switch to permanent routes by the end of 2020 may result in the individual being unable to continue to work in the United Kingdom for a period once the new system is implemented or may delay their future eligibility for settlement.
Upskill HR teams on sponsor licence management and new system requirements
Employers should do this before December 2020 so that they are ready to go in January 2021 because delays to new hires and early mistakes in recruitment processes can lead to additional costs and missed compliance duties.
Stay ahead of curve with changes and updates
Employers should do this always. Immigration policies normally have at least two major updates per year in April and October; however, the pace of change has significantly increased in recent years. Significant adjustments will continue to be necessary as the post-Brexit immigration system is established, so frequent updates throughout 2021 and beyond are likely.
Falling behind on the requirements of hiring and retaining international talent can happen quickly in a constantly changing legal landscape. This can lead to missed opportunities and mistakes that are stressful, costly and time consuming to deal with.
For further information on this topic please contact Andrew Osborne or Stephen O'Flaherty at Lewis Silkin by telephone (+44 20 7074 8000) or email (email@example.com or firstname.lastname@example.org). The Lewis Silkin website can be accessed at www.lewissilkin.com.
(1) A downloadable timeline reminder of the areas that employers should be aware of in the countdown to the new 2021 immigration system is available here.
(2) For further information please see "Brexit and the UK's New Immigration System".
(3) For further information please see "Pandemic right to work check procedures".
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