Employing EU Workers Under the Points Based System

What employers need to know about post-Brexit immigration

Our recent article What is a Skilled Worker Under the Points-based Visa system? explains how the new points-based system (PBS) for immigration will work when employers want to hire new workers from overseas, including from EU member states, once freedom of movement ends under the EU Withdrawal Bill.

The PBS will apply to all non-UK citizens (excluding Irish nationals) unless they have applied for and received Settled or Pre-settled immigration status.

Employing new workers from the EU

From 1 January 2021, under the new PBS rules (as proposed), immigrant workers from EU member states will need to have a job offer from an approved sponsor (an employer with an appropriate sponsorship licence) before they can come to the UK to live and work.

The new rules about the types of job roles, salaries, skill levels and English language requirements are likely to make it easier to employ more ‘skilled’ workers under the points-based regime, but it may become harder to bring migrants into the country to fulfill certain lower-paid, lower-skilled jobs, such as in social care, farming (agriculture and horticulture), and food processing – three sectors that are notoriously hard to fulfill with UK citizens for a number of reasons.

A temporary route for seasonal workers (which is likely to be capped) in the agricultural sector is being considered, but no confirmed details have been released yet (Nov 2020) and many affected employers are extremely concerned for their 2021 harvests and beyond.

Becoming a sponsor

When the right to free movement across the EU ends, as an employer you will need to ensure that any new employees you take on have the correct sponsor visa. Many employers who previously did not have to worry about their status as a sponsor will now need to have the right sponsorship licences and management systems in place because they will be employing people from EU countries who previously had the right to work in the UK.

As the new skilled worker route expands the range of jobs which could previously be applied for under the Tier 2 General route, and the qualification/skill requirements have been lowered, you should check whether roles you have available qualify.

Due to the current situation in respect of coronavirus, documents can be emailed to the Home Office when applying for a sponsor licence and there is a temporary concession in place meaning that you do not need to send original or certified copies of documents. However, applying for a sponsorship licence is a complex task and many applications are turned down each year because of errors made on the application.

We can assist you with your application and as you prepare for the immigration changes as you will need to be prepared to carry out the necessary checks when you hire a new EU employee and carry out ongoing monitoring of time-limited visas.

EU settlement scheme for EU workers already in the UK

EU workers who have been living and working in the UK before 31 December 2020, and who wish to continue to do so, need to apply under the EU Settlement Scheme. The time limit for applications expires on 30 June 2021.

Depending on their employment status and the evidence they supply to the Home Office there are two statuses that can be conferred on EU citizens: Settled status and Pre-settled status.

What is Pre-settled status? How does it differ to Settled status?

Pre-settled status is a grant which can be applied for by EU citizens who have lived in the UK for at least one day in the previous six months (up until 31 December 2020). It is a temporary status (five years) and confers limited leave to remain.

Workers with Settled status must have worked in the UK for at least five years and fulfil continuous residence criteria. It confers indefinite leave to remain.

What do employers need to do?

Our page on Preparing for the Post-Brexit Immigration Regime explains what employers should be doing now to ensure their business is fully internally audited and ready for the points based system for immigration. It includes employers’ to-do lists that will help businesses understand how they are likely to be affected and what the immediate priorities are.

As an employer of EU workers, you will need to take action to prevent illegal working and, if you are hiring new workers, you will need to check their settlement status for Right To Work purposes.

The Intra-company Transfer route

Employers with EU locations, who wish to bring EU workers over to their UK sites, will need to apply for a sponsor licence under the Intra-company Transfer route. However, this visa route is only for highly skilled workers with NQF level 6 or above. It is a five-year, non-settlement visa (nine years for higher earners) but can be switched to a skilled worker visa under the PBS.

Cross-border, frontier and business traveller workers

Many UK companies employ workers known as cross-border or frontier workers – these employees were previously protected due to the rights of free movement and right to work. From 1 January 2021 this right will end and EU frontier workers will need to apply for a permit (not necessary for Irish frontier worker citizens).

Under the draft legislation, the Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020, applications for frontier worker permits will be processed through an online application process on the GOV.UK website. Eligible applicants will need to provide a valid identity document and evidence of their role as a frontier worker prior to 31 December 2020. The application process will be open until 30 June 2021.

Business travellers, those people who live and work in the EU but who regularly travel to the UK for businesses purposes (meetings, training, site inspections etc., but not to work) will be subject to the same Visitor Rules currently in place for all non EEA and Swiss visitors. Generally, unless a visa is specifically required for the visit, business travellers are advised to travel with a letter from their employer explaining the activities they will be undertaking while in the UK.

For businesses requiring UK staff to travel to the EU, the requirements are likely to be affected by the outcome of Brexit negotiations and whether a deal is agreed. A no-deal scenario could mean significant changes for business travellers which could lead to them being treated as Third Country visitors subject to the specific entry rules of each EU member state.

Contact Wellers’ immigration solicitors today

If you are concerned about your current EU workforce or hiring new EU workers in the future, please call Lorraine Toal on 020 8290 7956 or email lorraine.toal@wellerslawgroup.com . Lorraine provides a friendly service, tailored to your specific needs, representing individuals and business clients regarding all aspects of immigration law.