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How employers should prepare for and transition to the new Immigration system 

Ilda de Sousa, Immigration Partner - Kingsley Napley LLP

Dramatic changes to our immigration system are taking effect. A new points-based system kicked in on 1 December 2020 affecting businesses wishing to employ non-EU citizens which will also apply to EU citizens (including from the EEA and Switzerland) when freedom of movement ceases on 1 January 2021.  So, how can employers prepare for the new changes?

Support current EU/EEA and Swiss national staff
EU citizens currently employed here should be encouraged to file applications to stay under the EU Settlement Scheme.  They can either apply for settled status if they’ve lived in the UK for a consecutive five-year period; or for pre-settled status if they’ve been here for a lesser period of time. The deadline to file the application is the end of June 2021. Irish citizens are exempt and continue to enjoy full rights to work in the UK even after 1 January 2021.

A digital status will be provided that individuals can use to prove their right to work and live in the UK. However, employers should be mindful that Settled status can be lost if the individual leaves the UK for a consecutive five-year period and Pre-settled status lost if an individual remains outside the UK for a consecutive period of two years so employers should plan any overseas work assignments accordingly.

What if some of your staff are working for you remotely from abroad? A new Frontier Worker permit has been introduced to cater for EU citizens that are either working or self-employed in the UK by 31 December 2020 – but don’t live here

Revise right to work checks/onboarding procedures
Employers have a responsibility only to employ those with the right to be here and can face penalties if they have not completed proper checks.   The challenge is how employers will distinguish between an EU national that arrived in the UK before 31 December 2020 (and is awaiting settlement status) versus those that arrived in the UK after 1 January 2021. If the prospective employee informs you voluntarily that they arrived after 1 January, then they should not be employed until the appropriate work permission has been obtained.

From 1 July 2021 EU citizens will be required to provide evidence of their right to work in the UK, no different than non-EU citizens have to do at the moment. Employer onboarding procedures and HR policies will need to be updated to reflect this.

Apply for a sponsor licence
Employers wishing to sponsor recruits from overseas to work here from 1 January 2021, will need a sponsor licence under the Skilled Worker and/or Intra-Company Transfer categories, unless the candidate can provide evidence that they hold a visa permitting a right to work. Existing licences under the current Tier 2 (General) and Tier 2 (Intra-Company Transfer) categories will automatically update under the new system.  You may also wish to switch any employees on Tier 2 (Intra-Company Transfer) or Tier 5 (Youth Mobility Scheme) visas to the Skilled Worker category so that they are on a track to indefinite leave to remain.

Budget for visa costs and time incurred
Any employer that sponsors non-EU citizens will know that government fees to secure a work permit are very high (on average around £5000 depending on the length of stay required. This does not include dependants that would make the costs significantly higher). From 1 January 2021 employers will be required to pay the same government fees to sponsor EU citizens, so it can be a very expensive exercise. It is advisable to take Employment law advice to check whether any costs can be charged back to the employee, although the Immigration Skills Charge must be paid by the employer.

Travel into Europe from 1 January 2021
British citizens travelling into Europe from the above date will be treated as third country nationals, so will require six months validity on their passports. For staff that travel frequently, it may be wise to keep a database to remind staff when renewals are required.  

Finally, since each country in Europe has their own Immigration rules, checks will need to be made about whether work permission is required for staff travelling on British passports in order to avoid any unnecessary complications. 

The clock is truly ticking here and there is a lot to do, however, with planning everything is possible.

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