What are the Implications for Employers?

January 2021

Freedom of movement within the UK ended on 31 December 2020 and EEA and Swiss citizens who enter the UK from 1 January 2021 are now subject to immigration control. This does not apply to Irish citizens, who have protected immigration status. EEA and Swiss citizens who were resident in the UK by 31 December 2020 retain the right to live and work in the UK after 30 June 2021, provided that they apply for settlement under the EU settlement scheme. The EU settlement scheme is free of charge and can be accessed here: https://www.gov.uk/settled-status-eu-citizens-families.

If an application to the scheme is successful, settled or pre-settled status will be granted. Individuals who have already been resident in the UK for five years will get settled status; those who have lived in the UK for fewer than five years will get pre-settled status and can apply for settled status once they have five years' residence. Employers cannot require their employees who are EU citizens to submit applications to the Settlement Scheme, but they can encourage them to do so and provide information and support to them on how to apply. See the recently updated Brexit Letter to EEA Citizens about EU Settlement for more information.

Employers who want to employ non-UK nationals (including EU citizens, apart from Irish citizens) after 1 January will have to obtain a sponsor licence in order to do so. Details can be found here: https://www.gov.uk/apply-sponsor-licence - more-information . The sponsor licence costs £536 for small businesses and charities or £1,476 for medium and large organisations, and the application process usually takes about 8 weeks.

Under the new immigration system, there are several visa categories (including Skilled worker, Health and Care Worker, Intra-company, Minister of Religion and Sportsperson), each with a fixed set of requirements to meet. To take an example, the new ‘Skilled Worker’ category includes the following requirements. The employee must:

· work for a UK employer that has been approved by the Home Office;

· have a ‘certificate of sponsorship’ from the employer with information about the role they have been offered in the UK;

· do a job that is on the list of eligible occupations; and

· be paid a minimum salary.

In terms of checking an EEA national’s right to work in the UK, employers will continue to be able to use only a passport or national ID card until 30 June 2021. From 1 July 2021, however, employers must see proof of immigration status, which will be either from the Settlement Scheme or from the new immigration system.

An employer can check an individual’s right to work in the UK by using the Home Office online checking system: https://www.gov.uk/view-right-to-work. In order for the employer to carry out this check, the employee/prospective employee must have shared their right to work details with the employer using the Home Office ‘prove your right to work’ service: https://www.gov.uk/prove-right-to-work.

The contents of this Newsletter are for reference purposes only and do not constitute legal advice. Independent legal advice should be sought in relation to any specific legal matter.

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