NI companies must prepare for the post-Brexit immigration system
NI companies must prepare for the post-Brexit immigration system
With the UK's immigration system set to change fundamentally in the coming months, companies across Northern Ireland must act now to ensure that EU national employees preserve their right to work here after 31 December 2020.
At present EU nationals, from any member state, can move freely to other member states in order to work or study. When Britain exited the EU on 31 January 2020, the UK Government agreed a transition period with the EU during which these free movement rights would remain effective. This period lasts until 31 December 2020, after which the UK will introduce an entirely new immigration regime that will treat EU and non-EU citizens equally.
EU Settlement Scheme
EU nationals already in the UK, or who enter the UK up until 31 December 2020, remain eligible to apply under the EU Settlement Scheme (the Scheme) for "Settled" or "Pre-Settled Status". This status will preserve the rights currently enjoyed by EU nationals, including the right to work for any employer in any role.
EU nationals who wish to stay in the UK after the end of this year must apply under the Scheme, regardless of how long they have been here even where they have obtained permanent residence status.
Settled or Pre-Settled status is not obtained automatically; and individuals must apply for it. To date over 3.9 million applications have been made to the Scheme, and 98% of these have been approved.
That said, any EU nationals (excluding Irish nationals) who are in the UK and miss the application deadline of 30 June 2021 will have no legal right to remain or work here and are likely to be subject to removal. In addition, they will be working illegally, giving rise to potential criminal and civil sanctions for their employers; including potential fines of up to £20,000 per illegal worker as well as reputational damage.
A&L Goodbody strongly recommends that employers audit their workforce now to understand how many EU nationals they employ. Steps should be taken now to ensure that any EU national employees apply to the Scheme to preserve their right to work.
New Immigration Regime from 1 January 2021
From 1 January 2021 changes to the immigration system will introduce a new 'Skilled Worker' route of entry.
This will present a welcome relaxation of the current eligibility requirements for economic migration. The skill level for sponsored roles will be substantially reduced (from degree level to A-Level or equivalent); the requirement to advertise roles before sponsoring a migrant will be completely dropped and there will no longer be a cap on the number of immigration applications per year.
Employers who currently employ non-EU nationals will find the new regime much easier to navigate, however, the end of free movement will present significant challenges for businesses that rely on recruitment of EU nationals.
There will be no general low-skilled or temporary work route and there will be a significant cost attached to sponsoring migrants to enter the UK.
How will the new points based system work?
Under the new system migrant nationals wanting to work in the UK will have to meet a number of key criteria which attract points. An applicant must score 70 points to be eligible for a visa.
Mandatory criteria are worth 50 points and require that applicants can show they have an offer of a job at a minimum skill level from a Home Office licensed sponsor. They will also need to meet a minimum English language requirement.
A further 20 points are awarded on the basis that the job has a minimum salary of £25,600 (or the "going rate" for the occupation, whichever is higher). These points are interchangeable so if they will earn less than this, they may be granted entry on the basis that they work in a specific shortage occupation or have a relevant PhD and will earn at least £20,480. Different salary rules will apply for workers in certain health or education jobs, and for “new entrants” at the start of their careers.
How do I become a Licensed Sponsor?
Existing Tier 2 sponsors will be converted into Skilled Worker Licensed sponsors, however it is evident that with the end of free movement, a significant number of businesses will need to apply to the Home Office for a sponsorship licence over the coming months. The criteria for sponsorship will remain substantively the same under the new regime.
Compliance standards are high, however, the Home Office has confirmed that sponsor obligations will be simplified and services increasingly automated as part of a five year plan to modernize and replace the current system with a more user friendly model.
You will need to factor in the time taken by the Home Office to consider applications for sponsorship licences, particularly if there is a surge in demand (as is anticipated closer to the Scheme closure). To avoid delays in recruitment plans, it is important that you consider taking steps now to secure a sponsorship licence before the end of the year.
Under the new system, the financial cost of obtaining a sponsorship licence and sponsorship of a worker will remain largely the same. Alongside, sponsorship charges (£199 per worker sponsored) and the cost of a visa application (£464 to £1,408), employers will also have to factor in the cost of the immigration skills charge at £1,000 per year and the immigration health surcharge which is increasing to £624 per year. Visa fees and the immigration health surcharge will also be payable in respect of dependents.
Notwithstanding the financial costs involved, the administrative burden and timeframe for recruitment should also be considered as this will clearly increase for the recruitment of EU migrants.
Next Steps for Employers
These changes represent the biggest upheaval in UK immigration law in living memory. Employers will need to get to grips with the new system quickly in advance of next year and should urgently consider the impact on recruitment plans and; given the complexities of the immigration system, obtain specialist legal advice where required.
If you anticipate that you may need to recruit from outside the UK in future or have EU nationals in your workplace already, it is vital that you consider the following:
How will the changes to the immigration system affect your business and access to labour? Will the typical roles you recruit for qualify under the new system?
Audit your existing workforce to identify any EU nationals that will need to secure their right to work under the EU Settlement Scheme. Communicate effectively with affected staff and provide support where this is required.
Where possible complete recruitment of any EEA or Swiss nationals before 31 December 2020 and ensure they apply under the EU Settlement Scheme in time.
Apply for a Sponsorship Licence if you do not currently have one. If you have a licence in place it is likely you will need to use it more frequently from January 2021 and you should conduct a 'health check' of your HR processes to ensure you are complying with your sponsor obligations.
Plan for the increased cost and time involved in recruitment of migrant workers from January 2021