UK’s post-Brexit immigration system: Government publishes key policy statement

11 mins

Posted on 20 Feb 2020

Take Back Control!” was the rallying cry of the Pro Leave campaign. The Government’s latest policy statement on the UK’s post-Brexit immigration system, published on 19 February 2020, looks set to honour that promise. 

The proposed new immigration system will bring an end to free movement for EU citizens from 1 January 2021. From that date, EU and non-EU citizens will be treated in the same way, including needing some form of permission to work or study in the UK.

This is the first substantive guidance on post-Brexit immigration to be issued by Boris Johnson’s Government. Until now, the main guidance on what our immigration system might look like post-Brexit has been a White Paper published in December 2018 under Theresa May’s premiership.

The latest announcement contains some significant departures from that White Paper. Most notably, there will be no visa route for lower skilled workers, even on a temporary basis. The message is clear, from early 2021 UK businesses will need to ‘adapt and adjust to the end of free movement.”

Here is our guide to the key points which employers need to be aware of, plus how you can prepare for the UK’s post-Brexit visa system.

Do employers need to do anything now?

From 1 January 2021, the vast majority of EU and non-EU nationals wanting to move to the UK for work will need a job offer before they arrive and the offer must be from a licensed employer. This means that any UK business which may want to hire EU and non-EU citizens from 1 January 2021 onwards will need to apply for a Tier 2 sponsorship licence before then, if it doesn’t hold one already.

Sponsor licence applications can take two to eight weeks to process and there will likely be a surge in applications, so if you are thinking about applying for a licence you should do so as soon as possible.

Employers who rely on EU staff will also need to factor the increased recruitment costs into their budgets from next year, as well as consider starting recruitment earlier to allow time for new recruits to obtain work visas.

Businesses who rely on lower-skilled workers from the EU should consider putting contingency plans in place now to mitigate the risk of not being able to recruit staff as easily from 2021.

What about EU nationals who are already in the UK?

Any EU nationals who are living in the UK by 31 December 2020 should be able to apply for settled or pre-settled status under the EU settlement scheme. They will need to do this by no later than 30 June 2021 to prove their right to be here. EU nationals who have been granted pre-settled or settled status won’t need a work visa and can work freely in the UK without restriction.

Who will employers be able to sponsor to work in the UK from 1 January 2021?

The policy statement describes the new points-based immigration system as ‘employer led.’ This means that EU and non-EU citizens wishing to apply for a UK work visa will need to demonstrate that:

  • They have a job offer from a licensed sponsor
  • The job offer is at the required skill level (RQF Level 3 – the equivalent of A level study)
  • The role meets the minimum salary threshold (at least £26,500 per year or the going rate for the role if higher)
  • They speak English to a good level.

However, unlike the current UK visa system, there will be some flexibility in these visa requirements. Visa applicants will be able to ‘trade’ characteristics such as their qualifications or working in a shortage role against a lower salary. Under the proposals, the minimum salary for a UK work visa will be £20,480 for individuals working in jobs on the Shortage Occupation List or who have PhD’s in STEM subjects (Science, Maths, Technology or Engineering).

Currently, to be sponsored on a Tier 2 work visa the role must be at RQF level 6 (degree level). The proposed new immigration system will therefore mean that more roles will be eligible for sponsorship.

It’s worth noting that sponsorship by a UK-based employer is not the only way in which non-UK nationals can gain permission to work in the UK. Currently there are a number of visas that allow the visa-holder to work in the UK without having a job offer from a licensed sponsor and we expect that these will apply to both EU and non-EU nationals from 2021. For example, there are currently visas for spouses, civil partners or unmarried partners of British nationals, for those with UK ancestry and for family members of people on work and study visas, all of which allow the visa-holder to work in the UK.

Will the employer need to advertise the job before sponsoring a non-UK worker?

Currently, UK employers must advertise a role in two places for a minimum 28 day period before it can offer sponsorship to an overseas job applicant. This ‘Resident Labour Market Test’ slows down the hiring process and has proved a frustrating sponsor compliance headache for UK employers. In more welcome news for UK employers, the policy paper confirms that this Resident Labour Market Test will be abolished from 1 January 2021.

Will there be a cap on the number of non-UK workers who can be sponsored?

No, the policy paper confirms that the current cap on the number of people that can come to the UK under the sponsored work route will be ‘suspended’ (rather than abolished). 

The Government is confident that removing the cap and the need for advertising will ensure a “wide pool of skilled workers will be able to come to the UK from anywhere in the world and the process will be made simpler and quicker for employers.”

Can employers sponsor non-UK workers in lower skilled roles?

Probably not. For employers wanting to fill roles that are below RQF level 3, so roles that do not require at least A level qualifications, it is unlikely that sponsoring a non-UK worker will be an option.   The policy paper confirms that the Government will not introduce a visa route for lower skilled workers and is taking a hard-line approach with a determined shift “away from a reliance on cheap labour from Europe”.

There will be some visa routes for lower skilled workers, though. The Government has said it will expand the seasonal workers in agriculture scheme to 10,000 places and retain the youth mobility arrangements in place already, which allow young people from certain countries to live and work in the UK for two years.  The policy paper also mentions introducing initiatives for scientists, graduates and NHS workers to provide UK businesses with additional flexibility in the shorter term.  

The Government’s proposal to introduce such initiatives could be viewed as a tacit admission that the end of free movement will have an adverse effect on UK workplaces and staff recruitment. Moreover, there is real concern that the proposed new system makes no visa provision to fill key roles in lower paid sectors - such as adult social care and catering and hospitality - where most roles will not reach the minimum salary or skills threshold. Such sectors rely heavily on EU staff and so may struggle to recruit staff from January 2021.

What will the visa process involve – and cost?

From 1 January 2021, anyone from outside the UK (and Ireland) will need to apply for a visa and pay a fee for this if they want to live, work or study in the UK. Non-EU nationals will need to apply for their visas online and attend an appointment in their home country to have their biometrics (fingerprints and photo) taken. The policy paper says that EU nationals will need to apply online using smartphone self-enrolment – they will not need to attend a visa appointment.

In a move away from the 2018 White Paper, any non-UK nationals in the UK as a visitor will need to leave the UK if they want to apply for a UK work visa.

In terms of costs for employers, the paper confirms that UK businesses will continue to have to pay an Immigration Skills Charge for both non-EU and EU nationals they sponsor. Currently set at £364 per year of sponsorship for small or charitable sponsors and £1000 per year of sponsorship for other sponsors, this will represent a significant new cost for UK employers wishing to hire non-UK nationals.

The paper also confirms that the Government will continue to charge the Immigration Health Surcharge to both EU and non-EU nationals wishing to work or study in the UK for longer than 6 months. This is currently £400 per year, but may increase to £625 per year.

Can EU nationals visit the UK without a visa?

The paper confirms that from 1 January 2021 EU citizens will be treated as non-visa nationals and so will not need to apply for a visa before entering the UK as visitors. EU nationals will be able to visit the UK for tourism and for some limited purposes for up to six months at a time, in the same way as non-EU nationals. Any non-UK national who is in the UK as a visitor (and so without a work visa) cannot work in the UK and employing them is illegal and could lead criminal,sanctions and/or a civil penalty. 

How will this affect right to work checks?

Employers can continue to accept passports and national identity cards of EU citizens as evidence of their right to work in the UK until 30 June 2021 (the deadline for applying under the EU settlement scheme). From 1 July 2021, before you hire someone from outside of the UK and Ireland, you’ll need to see specified evidence of their right to work.

What about students?

The policy paper focuses on economic migration and work visas, but also confirms that from January 2021 prospective EU and non-EU students will need to apply for a study visa in advance. To apply for this visa, they will need an offer of study from an approved education institution, should be able to support themselves financially during their studies and be able to speak English.

This is a significant change for EU students wishing to come to the UK to study on a course starting after 1 January 2021 – they will now need to obtain a study visa and sponsorship in advance. Independent schools, further education colleges and universities which do not currently hold a Tier 4 sponsor licence and who want to enrol EU students should therefore consider applying now to be an approved sponsor.

What will not be changing?

The policy paper does not suggest that any changes will be made to the existing intra company transfer visa scheme, where employees of overseas group companies can be transferred to the UK. We assume this visa route will remain open and be available to both EU and non-EU nationals.

The paper does confirm that existing visa routes for specialist occupations such as Ministers of Religion, Sportspeople and those in the creative arts will remain open – but will now be open to EU and non-EU citizens.

Highly skilled workers

The policy paper also proposes to extend the current ‘Global Talent’ visa route (formerly the Tier 1 Exceptional Talent route) to EU citizens on the same basis as non-EU citizens. The most highly skilled will be able to enter the UK without a job offer if they are endorsed by a relevant and competent body.

The Government also proposes adding a new ‘unsponsored route’ within the points-based system to sit alongside the ‘employer led’ sponsorship system. This route would allow a smaller number of the most highly skilled workers to come to the UK without a job offer. The policy paper states that such a route will take longer to implement and that lessons will be learned from experience of similar schemes in the UK.

What next?

The policy paper states that the new visa system will be in force from 1 January 2021, but that key visa routes will be open from as early as autumn 2020 on an optional basis. The Home Office has promised to publish further details in due course. That said, the proposals are not yet law and so certain points may change as the UK negotiates its future relationship with the EU.

For UK businesses and education institutions concerned about how the proposals will impact them, we hope that the promised “programme of engagement” will take industry and sector feedback into account before the new Immigration Rules comes into force from January 2021. 

The articles published on this website, current at the date of publication, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your own circumstances should always be sought separately before taking any action.

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