The new immigration rules for 2021 that UK employers need to know about

The new immigration rules for 2021 that UK employers need to know about: blue hands with EU flag painted on them

The immigration rules are changing on the 31st December 2020, which will impact your EU workforce as a consequence of the UK leaving the European Union and the ‘transitional period’ ending. Continue reading to find out what employers need to look at to ensure you are prepared for the changes. We will cut through the jargon and deliver what needs to be done in plain English.

It’s been a very busy year for many in HR and Brexit has been firmly relegated to the bottom of the ‘urgent’ pile for most of the year, but we wanted to take a moment to check you are all sorted when it comes to changing immigration rules.

Do you need to double check that all your EU, EEA and Swiss citizens can stay working for you in 2021? Furlough and all things COVID has made a few brains go fuzzy but we are at the wire now, so everyone needs to be clear on what needs to be done! We will be covering:

  • The rights of employees with settled or pre settled status
  • What do employers need to do now – the Do’s and Don’ts
  • What are the new immigration rules post 2020
  • Settled and Pre Settled Status explained
  • Jargon Buster

The rights of employees with settled or pre-settled status

They’ll be able to:

  • work in the UK.
  • use the NHS for free, if you can at the moment.
  • enrol in education or continue studying.
  • access public funds such as benefits and pensions, if you’re eligible for them.
  • travel in and out of the UK.

What do I as an Employer need to do now?

There are concerns that some EU, EEA and Swiss nationals do not know they need to apply for settled status, with some believing that as they hold a permanent residence card they need not apply. That is not correct.

If EU, EEA and Swiss nationals fail to secure settled status (or pre-settled status) they run the risk of losing their right to remain in the UK beyond the 30 June 2021 deadline.

Whilst it is an individual’s responsibility to apply to the EU Settlement Scheme, as an Employer you may prefer to support as much as possible and awareness is key. You can help ensure that your EU, EEA and Swiss national workers are fully aware of what their rights and responsibilities are to secure the settled status required.

Do’s

  • Audit your workforce, what is your workforce’s nationality (and those of your supply chain) and ensure Right to Work Documentation is in place for all. The current right to work checks (e.g. passport and/or national identity card) will continue to apply until the 30 June 2021.
  • Raise awareness of the EU Settlement Scheme amongst your workforce (Fact Sheets and Posters are available from gov.uk) and encourage them to apply if they haven’t done so already
  • Continue to employ skilled workers from outside of the UK, however you must have applied for a Sponsor Licence to do this
  • Continue to employ Irish nationals in any role (skilled or unskilled) without the need for further visa’s or paperwork
  • Ask all new recruits after 1st January 2021 about their immigration status or the date of their arrival in the UK.
  • Develop a process for determining EU worker’s status post 30 June 2021
  • Comply with the new Immigration rules if you are recruiting from outside of the UK (including EU citizens) from 1 January 2021

Don’ts

  • In 2021 you can no longer recruit EU nationals unless they were in the UK by 31 December 2020 and have applied to the EU Settlement Scheme or already had leave to remain in the UK (or you have applied to sponsor them through the new immigration system).
  • Demand to see proof of their application to the Settlement Scheme. There is no requirement for an employee to inform you as their employer that they have applied to the settlement scheme or the outcome of their application. Likewise, employers are not required to check that an employee has applied. There is however nothing preventing employers from raising awareness of the settlement application process and encouraging them to apply. You cannot ask your workforce to prove they have applied
  • Discriminate against EU citizens. The current guidance Home Office guidance states: “You have a duty not to discriminate against EU, EEA or Swiss citizens. You cannot require them to show you their status under the EU Settlement Scheme until after 30 June 2021.”

See the end of this Blast for more information about Settled and Pre Settled Status as well as our Jargon Buster!

What are the New Immigration Rules post 2020?

From 1 January 2021, free movement will end and the UK will introduce a points-based immigration system. The new system will treat EU* and non-EU citizens equally. Anyone you want to hire from outside the UK, excluding Irish citizens, will need to apply for permission in advance (excluding EU citizens who were in the UK on 31 December 2020).

Under a points-based immigration system, anyone coming to the UK for work must meet a specific set of requirements for which they will score points. Visas are then awarded to those who gain enough points.

This is what the government says about its new approach and we specifically draw your attention to the comments about low skilled and temporary work. “UK’s points-based system is to cater for the most highly skilled workers, skilled workers, students and a range of other specialist work routes including routes for global leaders and innovators.

We will not introduce a general low-skilled or temporary work route. We need to shift the focus of our economy away from a reliance on cheap labour from Europe and instead concentrate on investment in technology and automation.

Initiatives are also being brought forward for scientists, graduates, NHS workers and those in the agricultural sector, which will provide businesses with additional flexibility in the shorter term.”

A total of 70 points is needed to be able to apply to work in the UK.

What are the New Immigration Rules

Just by way of explanation, clearly ‘mandatory’ means that each person must tick this box, however the government has included ‘tradeable’ aspects too. In reality this means that applicants will be able to ‘trade’ characteristics such as their specific job offer and qualifications against a salary lower than the minimum salary or the ‘going rate’ in their field in order to meet the 70 point threshold.

To avoid any confusion, the new system will not apply to EU citizens living in the UK by 31 December 2020. They and their family members are eligible to apply to the EU Settlement Scheme and have until 30 June 2021 to make an application as detailed above.

Settled and Pre Settled Status Explained 

If you have members of your workforce who are EU, EEA or Swiss citizens and do not already have ‘indefinite leave to remain’ and they want to continue living and working in the UK after 30 June 2021 they need to apply to the EU Settlement Scheme. If their application is approved they’ll get either settled or pre-settled status.

They may be able to stay in the UK without applying, for example if they are an Irish citizen or already have indefinite leave to remain.

When can they apply? Now!

The deadline for applying is 30 June 2021 and they must have started living in the UK by 31 December 2020.

How Much does it Cost? It’s Free!

Who Needs to Apply? Except in a few cases, your employees will need to apply if:

  • they’re an EU, EEA or Swiss citizen
  • they’re not an EU, EEA or Swiss citizen, but their family member is (or is an eligible person of Northern Ireland)

Who does not need to Apply? Your EU, EEA or Swiss citizen employees do not need to apply if they have:

  • indefinite leave to enter the UK
  • indefinite leave to remain in the UK (usually shown as a stamp in their passport or a letter from the home office)
  • Irish citizenship (including British and Irish ‘dual citizenship’)

How do they Apply? Applications are on line. They can apply using any device, for example, a laptop, Android device or iPhone.

As part of the Application process they will need proof of:

  • Their identity
  • Their residence in the UK

Jargon Buster

Indefinite Leave to Remain

Indefinite leave to remain (ILR) or permanent residency (PR) is an immigration status granted to a person who does not hold the right of abode in the United Kingdom (UK), but who has been admitted to the UK without any time limit on their stay and who is free to take up employment or engage in business or self-employment or study. When indefinite leave is granted to persons outside the United Kingdom it is known as indefinite leave to enter (ILE).

Indefinite leave is not a permanent status. It can lapse where the holder has stayed outside the United Kingdom for a continuous period of two years and one day or more.

EU Settlement Scheme

The EU settlement scheme is designed to offer EU, non-EU EEA and Swiss citizens and their eligible family members living in the UK before the end of the transition period (during which free movement continues) the opportunity to protect their residence in the UK after the transition period has ended.

Settled Status

Your EU, EEA or Swiss Citizen Employee will get settled status if they’ve:

  • started living in the UK by 31 December 2020
  • lived in the UK for a continuous 5-year period (known as ‘continuous residence’)

Pre-Settled Status

If your EU, EEA or Swiss Citizen Employees do not have 5 years’ continuous residence when they apply, they’ll usually get pre-settled status. You must have started living in the UK by 31 December 2020. You can stay in the UK for a further 5 years from the date you get pre-settled status. You can then apply to change this to settled status once you’ve got 5 years’ continuous residence. You must do this before your pre-settled status expires.

How we can help…

This has always been a complicated area of law and not easy to navigate at times so please, please if you are unsure of what to do going forward with regards to hiring workforce from abroad or checking the status of current employees please do get in touch. Here are some examples of what we can support with:

  • eLearning for recruiting managers.
  • Face-to-face or Live-online training courses for HR and managers.
  • Template immigration documentation, when you need to stay legally compliant but need to keep costs down.
  • HR support delivered in plain English. Pay-as-you-go options available.
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