From 1 January 2021, EU free movement is set to end and a new points-based immigration system is to take effect in the UK. Since formally leaving the EU on 31 January 2020, we have been living in the Brexit transition period; an 11-month window in which the government was to negotiate new trade deals and EU exit terms.

For employers, the transition period should have presented the opportunity to prepare for the post-Brexit environment, including the impact of immigration system reform on work visas and hiring overseas workers. With 2020 hijacked by the Covid-19 crisis, however, thereby draining employers’ attention and resources, the immigration changes are in danger of creeping up on businesses and catching them out.

EU citizens and their employers will, under the new system, have to factor in the time, effort and expense required to make a Home Office application, with no guarantees of a successful outcome.

While businesses have been fighting for survival, implementation of the new system has not fallen off the Home Office’s agenda. Global pandemic notwithstanding, the government is moving ahead with its plans to have the new system in place from 2021.

As with all things relating to UK immigration, the changes raise complex issues for employers that will impact recruitment strategies, budgets and procedures relating to non-UK resident workers.

With time running out to prepare, what do the changes mean for businesses who currently employ EU citizens, and what practical steps should HR and business owners be taking now to support their EU workers and avoid future workforce and recruitment issues?

EU workers coming to the UK after 1 January 2021

Under EU free movement, EEA nationals can travel to and enter the UK without restriction, regardless of the length or purpose of their stay. From January 2021, this will no longer be the case.

After this date, EU citizens not already resident in the UK will be subject to the same immigration rules that currently apply to non-EEA nationals.

This means applying to the Home Office for permission to work, study, join loved ones and remain here indefinitely, by proving eligibility and paying all associated fees, including the Immigration Health Surcharge.  

EU citizens and their employers will, under the new system, have to factor in the time, effort and expense required to make a Home Office application, with no guarantees of a successful outcome.

The immigration routes open to affected EU workers will depend on many factors, including the purpose of travel and the individual’s intended length of stay. Two of the most common work-related visas are the standard visitor visa and the Tier 2 sponsored visa for skilled workers. Both, however, raise potential issues for employers.

Standard visitor visa for business visitors

The standard visitor visa permits a stay of up to six months in the UK, but is highly limited in what it allows the holder to do.

If travelling to the UK to attend a meeting, a conference or exhibition, the visitor visa would usually be appropriate.

The visitor visa does not, however, allow the holder to undertake actual paid work while in the UK. A suitable alternative route would need to be applied for.

As well as the purpose of the visit, another consideration is frequency of travel. A traveller relying on a visitor visa to frequently gain entry into the UK should expect issues at the border, particularly if there have been a number of visits made under the visitor visa within a short period. This can easily happen if an employee is engaged on a critical project based in the UK. Employers should be aware that immigration officials have powers to detain, question and deport travellers where there are concerns about visa restrictions potentially being breached.

Being stopped at the border is hugely stressful and unpleasant. Deportation will affect the individual’s immigration record, and can detrimentally impact any future UK immigration applications and their ability to return to the UK, in the near future at least.

If an employee who has faced issues at the border can show their employer was unreasonable in failing to support them in securing appropriate permission, which led to a blemished immigration record, they may have grounds to bring a claim against their employer.

A detained or deported employee also causes operational issues for the employer if the purpose of the visit is not ultimately realised.

The key takeaway for employers is to ensure employees have the appropriate visa permission in place before they travel to the UK, to avoid the risk and worry of being stopped.

Tier 2 visa for skilled workers

EU citizens not resident in the UK on 31 December 2020 who need to be based here to work will, from 1 January 2021, need to be sponsored and meet the requirements under the Tier 2 immigration route.

This requires them to attain the minimum number of points by meeting the stringent criteria under the skilled worker visa route, covering skill level of the role, salary, language ability of the applicant, among others.

If the employer is a UK-based company, they will need to hold a valid sponsor licence before the individual can apply for their Tier 2 visa.

In its immigration guidance paper, the government encouraged employers without a sponsor licence to make an early application should they plan to hire EU workers from 2021 onwards, to ensure a smooth transition and avoid workforce disruption for when the new rules take effect.

If the company is outside the UK and the individual will be transferring to a UK branch, the Tier 2 Intra Company transfer visa would usually be appropriate.

All applications under Tier 2 require careful planning, to ensure the licence is in place, to support with the worker’s individual visa application, and to meet the ongoing compliance and licence management duties imposed on the employer.

EU workers already in the UK by 1 Jan 2021

EU citizens already resident in the UK by 31 December 2020 have until 30 June 2021 to register under the EU Settled Status scheme.

This status safeguards EU citizens’ rights to remain lawfully in the UK and, for example, to work here. Those who fail to register for settled status by this date will be considered unlawfully present in the UK. The registration process is – relative to other Home Office applications – generally straightforward and it is free.

Employers of EU citizens are encouraged to take an active role in supporting and educating their workers about this requirement. This will ensure your workers retain their right to work, which in turn will help your organisation avoid any potential illegal working issues where a worker has not secured the required status.

Preparing for 2021

To ready your business for the changes, employers should:

• Plan your workforce needs for 2021.
• If this highlights a potential need to recruit from overseas – including from the EU – do you have a sponsor licence in place or do you need to make an application?
• If you have a sponsor licence, check its validity and when you will need to apply to extend and maintain your status as a sponsor.
• Devise a project schedule for 2021 to understand key dates, resources and travel needs over the 12-month period.
• Identify existing key workers who may need to travel during this period and if visa applications will be necessary.
• Apply for visas well in advance of travel dates.
• Secure the right visa to avoid issues at the border and reduce the stress on travelling workers.

Act now

Imminent immigration reforms present a number of issues for employers. Taking action now will help to ensure your business does not fall foul of the new rules or lose competitive edge as others move faster and smarter in advance of the changes.

Interested in this topic? Read Employment law changes for 2020.