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The UK’s post-Brexit immigration system – recruiting and retaining talent from 1 January 2021

Whilst Brexit may not be at the forefront of business’ minds during a global pandemic, EU free movement will end on 31 December 2020. The UK’s new immigration system is due to be introduced from 1 January 2021 and this will apply to both EU and non-EU workers.

The way in which organisations recruit from overseas is going to change so watch our immigration experts discuss:

  • The changes that will be made to the UK’s current points based immigration system;
  • How this will affect organisations that currently hold a sponsor licence;
  • The circumstances in which a sponsor licence will be required in the future;
  • What you need to know about employing individuals who require a visa under the new system from January 2021; and
  • How to plan for and practical steps to take now to prepare for this new immigration system.
Read more about this

Employing EU nationals post Brexit transition

An internationally diverse workforce is the norm in many sectors, as easy access to non-UK nationals has enriched the talent pool. Freedom of movement within the EU has increased competitiveness, and sharpened everyone’s focus, employers’ and employees’ alike. But will this change next year when the transition period comes to an end, and what do businesses need to consider when recruiting and building the best workforce in the future?

In this video immigration specialist Flora Mewies enlightens us about the post Brexit landscape. In conversation with Damien Charlton, she answers questions such as:

  • What should our existing EU national employees be doing?
  • What is the EU Settlement Scheme?
  • How are Irish nationals affected?
  • How is the right to work check process changing?
  • How can businesses recruit from outside the UK post-Brexit?
  • Do we need to apply for a sponsorship licence?
  • Can overseas employees of the group continue to visit the UK company?

The UK jobs market is experiencing a huge upheaval as a result of the pandemic, and it is more important than ever to ensure that you retain, recruit and secure the best possible talent.

Read more about this

Introduction

Timeline: Making sure you’re prepared for the new UK immigration system

The UK is introducing an updated points-based immigration system from 1 January 2021 which will apply to both EEA and Worldwide employees. It is essential that employers are aware of the changes coming into effect so that they can ensure their business is ready and they are able to provide the right support to their employees.

Click here for a timeline designed to help you understand the key changes and identify the steps that should be taken to ensure that you are prepared for January 2021.

What does the current immigration system that we have in the UK look like?

Before 1 January 2021, EU and EEA nationals could travel freely to the UK to live and work without a visa.  There was a separate system  for migrants from outside the EEA – a four tier points based system.

In order to be eligible for a visa in any of the four tiers the individual must have passed a points-based assessment. These visas covered most work, study and investment opportunities in the UK:

Tier 1 – High-value migrants

Tier 2 – Skilled workers

Tier 3 – Low skilled workers (never introduced)

Tier 4 – Students

Tier 5 – Temporary workers

There were also other visa types for non-EEA nationals which fall outside of the points based system and are primarily for visitors, family and limited business categories.

What impact did Brexit have on this?

As a result of leaving the European Union, free movement within the EEA ended on 31 December 2020. The UK introduced a new immigration system from 1 January 2021 applies equally to both EU/EEA and non-EU/EEA citizens who wish to work, live or study in the UK.  This means that EU/EEA nationals arriving in the UK from 1 January 2021 onwards need a visa to live and work in the UK which they previously didn’t.

Irish citizens can continue to be able to enter and live in the UK.

Did it make a difference that we left the EU with a deal?

There were no fundamental changes from an immigration or visa perspective as a result of a deal being reached in December 2020 and the new immigration system came into force on 1 January 2021 as planned without modification.

What is the new immigration system which was introduced on 1 January 2021?

Because free movement will have ended, a new immigration system will be in force which applies to both EU and non-EU nationals.

Under this system, EU nationals relocating to the UK will need a visa to work in the UK.  The visa type which will be most commonly used is called the Skilled Worker visa and it requires the employer to sponsor them for a specific role and visa.

Only employers who have a sponsor licence granted by the Home Office will be able to offer this sponsorship.

What should businesses be doing now as a result of this change?

Businesses should be looking at their future recruitment needs.  The first thing to do is to identify what areas of the business have EU and non-EU nationals in post and then consider future recruitment needs in these areas.  They should also be looking at areas of the business where they find it hard to recruit into or there is a skills shortage in the UK as these will be the areas where EU and non-EU staff are required.

If it is likely that they will need to recruit from overseas, the business should consider applying for a sponsor licence, as without this, they will be able to recruit EU staff who were in the UK prior to 31 December 2020 but not anyone who relocated afterwards.

Which employees do I need a sponsor licence for?

An employer must have a sponsor licence to sponsor anyone who is not a “settled worker”.

Generally speaking, settled worker is a person who is:

  • a British citizen
  • an EEA national or Swiss national who arrived in the UK before 11 pm on 31 December 2020 (and their eligible family members), provided they apply for status under the EU Settlement Scheme by 30 June 2021 and that application is granted
  • a person with pre-settled status or settled status granted underthe EU Settlement Scheme
  • a British overseas territories citizen (except for those from sovereign base areas in Cyprus)
  • a Commonwealth citizen with a UK Ancestry route visa or with the right of abode in the UK
  • anyone who has indefinite leave to enter or remain in the UK or is otherwise settled within the meaning of section 33(2A) of the Immigration Act 1971
  • an Irish citizen

Anyone who does not fall into the above category will require a visa to live and work in the UK.

Can all employers sponsor workers for visas?

Only employers who have a sponsor licence granted by UK Visas & Immigration will be able to sponsor workers for visas.

How much does it cost to apply for a sponsor licence?

It depends on whether you are a small sponsor or a medium/large sponsor.

You’re usually a small sponsor if:

  • your annual turnover is £10.2 million or less; and
  • you have 50 employees or fewer.

If you are a small sponsor or a charity the fee for a Tier 2/Skilled Worker licence is £536 and for everyone else it is £1,476.

The cost for all businesses for a Temporary Worker sponsor licence is £536.

What does the sponsor licence application process look like?

To become a registered sponsor you need to complete an online application form, supply supporting documents and a covering letter which satisfy UKVI’s criteria. UKVI will consider your application and suitability to become a sponsor.

Further details of the sponsor licence process can be found here.

What is the average timeframe to gain sponsorship?

Most applications (8 out of 10) are dealt with in less than 8 weeks. This can take longer if UKVI need to carry out a compliance visit before dealing with your application, for example to check your HR systems and processes, visit your business premises and so on.

Can this process be expedited?

In some circumstances yes.  There is a priority processing service for sponsor licence applications which you can apply to use.  There is an additional fee to pay of £500 and the outcome should be received within 10 working days.  There is no guarantee however that your application will be eligible for the priority service.

If an employer recruits relatively low numbers of people, is it worth them paying to be a sponsor?

There are plenty of smaller businesses who have a sponsor licence whether it is because they work in an industry with a skills gap and struggle to recruit from within the local labour market or in some circumstances they have wanted to make a job offer to an international student who has carried out work experience and they want to retain them long-term. It is a costly application and there are ongoing costs so the commercial aspect should always be considered but it’s key to note that you are now no longer able to hire someone from outside of the UK who needs sponsorship without a licence and so we are seeing more and more businesses apply for licences now.

Sponsorship process

What is the process that an employer has to go through at present to recruit and sponsor an EEA or a non-EEA worker for a visa?

Firstly, an employer needs to hold a sponsor licence with UK Visas & Immigration.  This requires them to go through the application process so that UKVI is satisfied that it is a genuine organisation operating lawfully in the UK and has the procedures and processes in place to take responsibility for workers that are sponsored.

Once a suitable candidate is identified the employer will need to obtain a Certificate of Sponsorship (CoS) and assign this to the prospective employee.

Once the individual has the CoS, they will then be able to apply for their visa to work in the UK using their assigned CoS.

What are the main differences between the old and new immigration systems?

  • The main change is that we now have one system which applies to both EEA and non-EEA nationals.
  • The new system is genuinely a points based system and an applicant has to receive a minimum of 70 points which they get through:
    • being sponsored
    • the role being at the appropriate skills level
    • meeting the English language requirement
    • meeting the required salary level.
  • Applicants overseas are able to apply using an app which they could not under the old system.
  • Most of the immigration/visa categories have been renamed.
  • The Resident Labour Market Test has been removed.
  • The skills threshold has been lowered as has the salary threshold.
  • The types of Certificates of Sponsorship have been changed.

What are Certificates of Sponsorship?

A Certificate of Sponsorship (CoS) is a virtual document assigned by a sponsor to the employee. It provides details of the role the employee is being sponsored for e.g. salary details, duties, hours and place of work and matches the employer and employee with UKVI. The employee cannot submit their visa application until they have a CoS.

Under the old immigration system there were two types of CoS:

  1. Restricted CoS –used when making a new hire into the UK from overseas and there was an annual limit on how many restricted CoS could be granted by UKVI; and
  2. Unrestricted CoS –used whenever you didn’t need a restricted CoS, which was usually in the following circumstances:
    • for individuals coming to the UK from overseas where their salary will was at least £159,600pa;
    • for individuals already in the UK extending their Tier 2 General visa (either to work for their current employer or for a new employer) or who were able to switch from their current immigration category; or
    • for inward investment posts.

How have Certificates of Sponsorship changed under the new immigration system?

We now have ‘defined’ and ‘undefined’ Certificates of Sponsorship.

For the Skilled Worker visa, if the worker is applying for their visa from outside the UK, the sponsor needs to assign them a defined CoS and if they are applying for their visa from within the UK, the sponsor needs to assign them an undefined CoS.

The annual allocation for undefined CoS will be the same as it was for unrestricted CoS i.e.6 April to 5 April and sponsors will continue to request an annual allocation, and apply to increase this throughout the year as normal.

Just like sponsors would have done for a restricted CoS, they need to apply for a defined CoS each time they need one for a specific worker and this will be done via the Sponsor Management System by a Level 1 User. Unlike with the restricted CoS, they can apply as and when needed and applications will usually be dealt with within 1 working day if they are straightforward.

For the Intra-Company, an undefined CoS will always be required.

Do employers still have to advertise the role under the Resident Labour Market Test?

Previously, if you wanted to hire someone who requires sponsorship, you needed to advertise the post for 28 days in a prescriptive form on the Government’s Find a Job site and in one other publication from a specific list. This was called the Resident Labour Market Test (RLMT) and the policy behind this was to ensure that settled/UK workers are given the opportunity to apply for the role before it is offered to a migrant worker. If you could show that the person you wish to sponsor is the only suitable applicant you could go on to sponsor them.  There were a number of exceptions to this when you don’t need to carry out the RLMT but it is a frequent headache for employers.

The RLMT added unnecessary complexity to the already lengthy process for sponsorship and sometimes employers would carry out a recruitment process, identify someone who requires sponsorship and then find that they haven’t carried out the RLMT correctly, or not retained the right evidence of the RLMT process meaning that they have to do it all over again.

Under the new immigration system, the RLMT has been abolished and so there is no requirement for employers to carry out this advertising process.  UKVI do however still want to understand how an employer identified the worker they want to sponsor as being suitable for the role and in some circumstances, will expect you to have retained prescribed documentation evidencing the recruitment process

What changes were made to the skill level under the new immigration system?

Under the old system, the  skill level for a job was RQF level 6 which is the equivalent of degree level. Under the new system, this was lowered to RQF level 3 which is A level equivalent. This means there is a wider variety of jobs deemed suitable for sponsorship under the new system than previously.

It’s worthwhile noting that the skill level relates to the job and the duties of the job holder and not the individual themselves. For example they don’t need to have a degree to do a degree level role.

How does an employer know what roles they can sponsor for and if they meet the skill level?

For a job to be eligible for sponsorship it must be matched against an applicable “SOC Code” as confirmation that it meets the minimum skill level requirements. The codes are the method used by UKVI to classify jobs according to their titles and activities.   Each code has an, other potential job titles and details of the minimum salary for that role and can be found here.

Unhelpfully, each Code no longer has example duties however these are still relevant in order to identify the correct Code for the role to be sponsored and whilst it should be treated with caution, the previous guidance and ONS website can be helpful resources.

For advice on which SOC Code is appropriate for a particular role, please contact a member of the Immigration Team.

Is there a minimum salary that an employer has to pay for a sponsored job?

Each role that you can sponsor an employee for has a minimum salary set by UKVI and is split into ‘new entrant’ and ‘experienced worker’ salaries.

From 1 January 2021 starting point is that the minimum salary must be £25,600pa or, if higher, the going rate for the role which is the salary for that role detailed in the Immigration Rules.

All salaries are based on an working a minimum number of hours per week as set out in the Immigration Rules.

What counts as salary for these purposes?

The minimum salary thresholds are based on the gross annual salary that an individual will earn. Bonuses, allowances and benefits will not be taken into account as they can be currently.

If the applicant is being sponsored to work more than 48 hours a week, only the salary for the first 48 hours will be counted towards the salary thresholds.

Are there any circumstances in which you can pay a lower salary than £25,600?

Applicants can “trade” characteristics such as their specific job offer and qualifications against a lower salary in order to reach the 70 points required to obtain the visa.

An applicant may be awarded 20 tradeable points, and therefore be paid a lower salary, in one of the following ways:

  • A PhD qualification which is relevant to the job (10 points), and a salary which equals or exceeds both £23,040 per year and 90% of the going rate for the occupation (10 points)
  • A PhD qualification in a STEM subject which is relevant to the job, and a salary which equals or exceeds both £20,480 per year and 80% of the going rate for the occupation (20 points)
  • A job in a shortage occupation, and a salary which equals or exceeds both £20,480 per year and 80% of the going rate for the occupation (20 points)
  • Being a new entrant to the labour market, and a salary which equals or exceeds both £20,480 per year and 70% of the going rate for the occupation (20 points)
  • A job in a listed health or education occupation, and a salary which equals or exceeds both £20,480 per year and 80% of the going rate for the occupation.

Can employers pay a lower salary if they are sponsoring a student?

Yes. Employers can pay a lower salary if they are sponsoring a ‘new entrant’ which includes students but is wider under the new system.  The new entrant salary rate is applicable to:

  • Those under the age of 26 at date of application
  • Those applying for a postdoctoral position in certain science roles
  • Those whose job offer is for a UK regulated profession and the applicant is working towards one of those professions
  • Applicants who are working towards full registration or chartered status with the relevant professional body for the job they are being sponsored for
  • Applicants who last had leave at a Tier 1 (Graduate Entrepreneur)
  • Applicants who last had leave as a student which expired up to two years before application and completed a Bachelor, Masters, PGCE or PHD in the UK

Does the employer still have to pay the Immigration Skills Charge under the new system?

Yes they do.  For small and charitable sponsors this is £536 per year of the visa and for all other organisations it is £1,000 per year of the visa.  This is an upfront cost payable by the sponsor at the time that they assign the Certificate of Sponsorship.

Does the individual still have to pay the Immigration Health Surcharge (IHS)?

Usually yes.  There are some exceptions when the IHS isn’t payable including:

  • Applicants for indefinite leave to remain
  • EU Citizens and their family members who are exercising free movement or making applications under the EU Settlement Scheme
  • Diplomats or members of a visiting armed forces and not subject to immigration control
  • Dependants of a member of the UK’s armed forces
  • Asylum seekers
  • Domestic workers who have been identified as victims of slavery or human trafficking

Workers who are applying for the Skilled Worker Health and Care visa are exempt from paying the IHS.

Under the old system, there were restrictions on being able to switch from one visa to another, is this still the case?

There are some visa types which UKVI didn’t allow individuals to switch from and to and this meant that they couldn’t apply for the new visa from within the UK and instead had to leave the UK and apply from overseas.

Whilst there are still some restrictions, these have been relaxed under the new system which makes the process quicker and easier.

Previously, Tier 2 ICT visa holders could not switch to a Tier 2 General visa, instead they had to leave the UK for a 12 month ‘cooling off period’ and apply once this period had expired.  Under the new system they are able to switch from an ICT to a Skilled Worker visa which also means that they will subsequently be able to apply for ILR after holding the Skilled Worker visa for 5 years.

In addition, Dependant visa holders are also able to switch from within the UK to the Skilled Worker visa which they couldn’t before and so will Tier 5 visa holders which again, wasn’t permitted under the old system.

This is helpful to employers whose employees previously had to spend weeks or months outside the UK waiting for their new visa, whereas now they will not need to travel and can continue to work in the meantime so long as they are eligible to switch visa types from within the UK and submit their application before their current visa expires.

Were there any changes to the English Language requirement under the new immigration system?

Yes. Previously an individual could prove they meet the English Language requirement if they:

  • Were a national of a majority English speaking country
  • Had a Bachelor’s degree, Master’s degree or doctorate awarded in the UK
  • Had a degree or degree level qualification taught in a university or college in a majority English speaking country which meets or exceeds the recognised standard of a Bachelor’s degree, Master’s degree or doctorate awarded in the UK
  • Had a degree or degree level qualification which meets, or exceeds, the recognised standard of a UK Bachelor’s degree; Master’s degree or doctorate and was taught or researched in English
  • Had successfully completed an approved English language test

From 1 January 2021, applicants can continue to meet the English language requirement in the above ways but also:

  • Applicants only need to prove the required level of English language to the Home Office once.  Therefore if they have previously proven their English language ability under a previous UK visa application, they do not need to prove it again
  • Malta is now included on the majority of English language country list (nationality of a country on this list can be used as proof of the English language ability)
  • Applicants with a degree from Ireland can now rely on this as proof of the English language ability
  • Applicants who achieved GCSE/A Level or Scottish Highers whilst at school in the UK can now to rely on these qualifications to prove their English language ability – but only for certain types of visa application, not all.

Shortage Occupation List

What is the Shortage Occupation List?

The Shortage Occupation List is a list of occupations which cannot be filled with enough skilled workers who live in the UK in that particular sector. It aims to highlight those jobs suffering shortages which can be filled by employer sponsorship of migrants workers.

Is it relevant if the job an employer wants to sponsor for is on the shortage occupation list?

The Shortage Occupation List is a list of all roles in the UK which UKVI believes there are not enough settled workers to fill. The current List can be found in the Immigration Rules here.

If a job is on the Shortage Occupation List, they will not need to meet the £25,600 salary threshold. Instead the threshold will be lowered to £20,480 per year and 80% of the going rate for the occupation, whichever is higher. Employers will find it more affordable to sponsor individuals in shortage occupations.

Has there been any changes to the jobs which are on the shortage occupation list?

The List was expanded at the end of 2020 to include lower skilled roles in line with the new immigration system.

EU Settlement Scheme and right to work checks

What changed on 1 January 2021 regarding Brexit and EEA staff?

Between 31 January 2020 and 31 December 2020 there was a transition period during which free movement of European nationals continued.  This came to an end on 1 January 2021 and from this date:

  • EEA nationals (and their family members) who began residing in the UK on or before 31 December 2020 remain able to travel in and out of the UK without a visa, but they must register under the EU Settlement Scheme by 30 June 2021; and
  • EEA nationals (and their family members) who did not begin residing in the UK on or before 31 December 2020 must have a visa in order to travel to the UK to work.

What should employees who are EU nationals be doing?

EU nationals who are here in the UK , who arrived by 11pm on 31 December 2020 and intend to stay permanently must register under the EU Settlement Scheme.

What is the EU Settlement Scheme?

The EU Settlement Scheme was introduced in January 2020 to allow EU nationals and their family members to apply to continue living and working in the UK after 1 January 2021.

Applications have to be made by 30 June 2021 and if the application is successful they will be given either settled or pre-settled status.

Has anything changed as a result of the UK reaching a deal with the EU in December 2020?

Generally speaking no.  There were no substantial changes from an immigration/visa point of view as a result of a deal being agreed save that there were deals reached regarding how long UK service providers can work for in EU countries and Switzerland and there have been some adjustments to the list of permitted duties that business visitors to the UK can carry out whilst here.

What’s the difference between settled and pre-settled status?

Settled status is granted to those who have lived in the UK continuously for 5 years and if granted, allows you to continue living and working in UK indefinitely.

Pre-settled status is granted to those who haven’t yet lived in the UK continuously for 5 years and so they are given the right to remain in the UK for a further 5 years, rather than permanently.  Individuals will then be able to convert this into settled status once they have reached 5 years in the UK in total.

Other than this key difference, the rights granted under settled and pre-settled status are almost identical.

If an employee doesn’t yet have 5 years’ continuous residence but will reach 5 years’ before the EU Settlement Scheme closes on 30 June 2021, it is sensible for them to wait to apply once they have reached 5 years.  This way they will only need to apply once and obtain settled status from the outset.

Once an individual has pre-settled status or settled status, does it have an expiry date?

Pre-settled status is granted for a limited period of time which allows the holder to reach 5 years in the UK and then to apply to convert this into settled status.  If the individual is unable to convert their pre-settled status into settled status, for example because they have spent more than 6 months in any 12 month period outside the UK they cannot renew their pre-settled status and so it will lapse on the expiry date.

In addition, pre-settled status is lost if they spend more than 2 consecutive years outside of the UK and settled status is lost by spending 5 consecutive years outside of the UK.

It can also be lost if they no longer meet the eligibility criteria, for example in relation to criminal offences.

My employee has been working overseas during the covid19 pandemic, will this impact their application?

If the period of absence will (alone or with other absences) mean that the employee has spent more than 6 months outside the UK in any rolling 12 month period, this can jeopardise their ability to apply under the EU Settlement Scheme and/or their ability to convert their pre-settled status into settled status in the future.

UKVI has published guidance on how absences from the UK due to covid19 will be treated in relation to EU Settlement Scheme applications.

If the employee has been absent from the UK for a single period of more than 6 months, but not more than 12 months, during their 5 year continuous qualifying period due to being ill with covid19, and they were unable to return to the UK because they were ill or in quarantine, that absence will not cause them to break their continuous qualifying period.

An individual is allowed to have a single absence up to 12 months for an important reason which includes serious illness but this does not include self-isolation unless they were under quarantine conditions (including being ill with covid19 or living with someone who was ill with covid19 or vulnerable).

However, any absence(s) that exceed 6 months but is not more than 12 months in total in any 5 year continuous qualifying period where covid19 was not a factor will still break the continuous residence period unless there was another important reason for the absence.

Where there is more than one absence exceeding 6 months, this will always break the continuous residence period no matter what the reason for it, including if the employee is prevented from returning to the UK as a result of covid19.

Do holders of settled or pre-settled status need to update this when they move house or if they get married and change their name?

There is no requirement to reapply or update their status but individuals registered under the Scheme are required to maintain up to date personal details online with the Home Office.  When the application is granted, the individual is given access to their own personal UK Visas and Immigration account and they are required to keep their personal details up to date which are their mobile phone number, email address, name, identity document and address.

It is worth noting that failure to do so, won’t invalidate settled or pre-settled status.

What does the application process under the EU Settlement Scheme look like?

You follow the same process whether or not you are applying for settled or pre-settled status and the easiest way to apply is online, although those who can’t apply online can apply by post.

The application requires you to provide evidence of three things:

1.Your identity – to prove that you are an EU citizen or the family member of an EU citizen.  This requires you to give your passport, national ID card or BRP.

If you’re submitting a digital application, you can upload copies of your documents electronically either online or via mobile app, alternatively the documents can be posted or local council offices can assist with scanning and certifying documents for you.

You also have to submit a photo of yourself and provide information such as name, address, National Insurance number and so on.

2. Residence in the UK – you have to provide evidence that you’ve been residing in the UK and how long for.

If you have given your National Insurance number, they will carry out an automated check of UK tax and benefit records and provide instant results.  If you’ve been working and paying tax for the last 5 years you won’t need to provide any documents as this will be sufficient.  However if there are gaps or insufficient data, you’ll need to provide copies of documents like P60’s, bank statements, council tax bills, university certificates and so on.

They look at the 5 years immediately prior to the application and you can spent up to 6 months in any 12 month period outside of the UK so you only need to provide evidence that you’ve been in the UK for at least 6 in every 12 months.

3. Criminal record – as part of the application you also undergo a criminal record check and have to disclose details of criminal convictions.

How much does it cost to apply?

It’s free to apply.

How long does it take for the application to be processed?

It usually takes around 5 working days for complete applications to be processed if no additional information is needed.  If additional information is needed, they contact you and it can take up to a month for applications to be processed.

What about family members of EU citizens?

EU nationals may have family members living with them in the UK who are not British citizens and so also need to apply to evidence their right to remain in the UK post-Brexit. Non-EU family members of EU nationals are therefore also able to apply under the Scheme and should ideally apply at the same time as the EU national and in any event before 30 June 2021.

For the purpose of the application, a family member is a spouse, civil partner, unmarried partner in a subsisting relationship, children, grandchildren and great grandchildren under the age of 21, dependent children over the age of 21, dependant parents, grandparents and great grandparents and other dependant relatives.

In addition, close family members will be able to join the EU national in the UK after 1 January 2021 and apply under the Scheme before it closes on 30 June 2021, so long as they can prove as part of their application that their relationship existed prior to 31 December 2020 and that the EU national living in the UK has either settled or pre-settled status or are eligible to be granted such status.

A close family member is a spouse, civil or unmarried partner, dependent children and grandchildren and dependent parents and grandparents.

The situation is slightly different for Swiss nationals whose family in that they are able to bring their family to the UK until 31 December 2025.

Can partners whose relationship began in 2021 relocate to the UK under the EU Settlement Scheme?

No. If the relationship with the EU national began prior to 31 December 2020, they will not be eligible to apply under the Scheme and would need to apply for a family visa under the points based immigration system, if they are eligible to do so.

Do children need to apply?

Yes they do. They must submit their own application themselves or the parent can submit it on their behalf.  For these purposes a child is someone under the age of 21.

What about if a child is born to or adopted by an EU national who has pre-settled or settled status?

Children born or adopted by an EU citizen who has pre-settled status will be automatically eligible to register for pre-settled status.

If the parent has been granted settled status before they have or adopt a child, the child will automatically become a British citizen and so there is no need to make any application under the Scheme.

How are Irish nationals affected?

Irish citizens are not required to apply under the Scheme and can continue to live and work in the UK using their Irish passport.  This is because free movement between the UK and Ireland is not governed by the EU but a separate agreement.

If eligible, should workers apply for an Irish passport and use this to work in the UK?

This is an option for those who can obtain Irish citizenship and could become dual-nationals if they wanted.  However unlike under the EU Settlement Scheme, non-EU family members of Irish nationals would not have the right to live and work in the UK unless they applied for a visa.

What about EU nationals who have permanent residence or indefinite leave to remain?

Both of these statuses grant the individual the right to remain in the UK on a permanent basis and will have been granted under the old systems in place before the EU Settlement Scheme was introduced.

Anyone with a valid permanent residence document will need to apply under the EUSS by 30 June 2021 to convert this to settled status.  If they don’t, on 30 June 2021 their permanent residence will cease to be valid and they won’t have the right to remain in the UK.

Anyone with indefinite leave to remain however won’t need to apply under the scheme and this will remain valid after 30 June 2021.

They may want to consider applying anyway to convert this to settled status however because ILR is lost after 2 years’ absence from the UK whereas settled status is not lost until 5 years’ absence from the UK.

Are British citizens affected by the UK leaving the EU?

They are affected in many ways however their right to live and work in the UK is unaffected.  This is the case even if they are an EU national who has acquired British citizenship.

Can EEA nationals become British citizens?

Yes. Once they have held permanent residence or settled status for at least 12 months, they can apply to naturalise as a British citizen if they would like.  Depending on their nationality, they may or may not be required to renounce their European citizenship and there may also be tax implications that they should consider before making such an application.

What if employees don’t apply under the EU Settlement Scheme by 30 June 2021?

Only EEA nationals who are living in the UK by 11.00pm on 31 December 2020 can apply under the Scheme. They have to apply by 30 June 2021 otherwise they will lose their right to live and work in the UK which would mean that their employer is employing an illegal worker.

There are some grounds on which discretion can be exercised to allow late applications but given that the scheme will have been open for over 18 months by that time, there is little excuse to not be able to apply on time.

What can employers do to support staff in applying under the EU Settlement Scheme?

The biggest role that employers have to play is in raising awareness of the Scheme and crucially, the need to apply by 30 June 2021.

They also need to be able to either provide information to staff where they are able to do so, or to direct them to third parties such as ourselves who can provide this information and help with their applications.

We’ve seen employers who have been raising awareness by putting up posters or adding reminders to newsletters and the intranet for example.  Others have been writing to their EU members of staff and enclosing fact sheets or guidance and others have engaged us to run workshops, presentations and drop in sessions.

It is particularly important to make sure that those employees who are harder to reach or are vulnerable are aware of the Scheme and receive support in applying.

For most people, the application process is relatively straightforward however some may need their employers to assist them.  This could be by letting them use the employer’s IT equipment to submit their application online or scan their documents, providing the employee with copies of their payslips for example to show they’ve been working in the UK.  Employers don’t have to pay any fees or provide any letters or supporting documents for the employees.

It is recommended that with the business there is a dedicated point of contact within HR for queries regarding the Scheme to be directed to. This ensures that these are managed centrally and that consistent information is being cascaded to staff.

Finally providing reassurance to employees with the process is important.

What about EU staff who are recruited from 2021 onward?

Only those people living in the UK by 31 December 2020 can register under the Scheme to remain in the UK indefinitely.

From 2021 when recruiting an EU national to work for your business, an employer will either be recruiting someone who:

  • moved to the UK before 31 December 2020 and can apply or has applied under the Scheme, in which case there is no change to your recruitment process; or
  • moved to the UK on or after 1 January 2021 in which case the new immigration system will apply and they will need a visa.

Can an employer ask staff for evidence that they have applied under the Scheme?

Not until 1 July 2021.

Employers cannot require workers or applicants to show their status under the EU Settlement Scheme until after 30 June 2020. It is the responsibility of the individual to make an application and there is no requirement for an employee to inform their employer whether they have made an application or the outcome of the application.

If a prospective employee cannot evidence their settled or pre-settled status after Brexit, can their job offer be retracted?

A job offer can be retracted if they cannot evidence that they have the right to work.  If this happens between 1 January and 30 June 2021, the prospective employee does not have to evidence their settled or pre-settled status and so retracting a job offer on this basis could lead to a discrimination claim.  It is therefore advisable to ask for evidence that they began residing in the UK on or before 31 December 2020 as this will allow you to determine whether they can apply under the Scheme and have the right to work, but just haven’t submitted their application yet.

What should employers do if we have EU members of staff whose right to work we haven’t checked in the past?

If you have checked an employee’s’ right to work before their employment began, you don’t need to repeat this at this time.

If however you have never checked an employee’s right to work, it is recommended that you do this now.

If right to work checks aren’t carried out before employment begins and the employee is found not to have the right to work, the employer is at risk of being fined up to £20,000 per illegal worker.  This risk remains even if the right to work check is carried out after the employee begins work however it is better to carry out a late check than none at all as this will identify any concerns and give you the opportunity to resolve this or take action before the Home Office does.

What happens if after 30 June 2021 an employer finds out that an employee didn’t apply under the Scheme or had their application refused?

The guidance says that there is no obligation to carry out retrospective right to work checks however someone who does not apply by 30 June 2021 or whose application is refused and cannot appeal or reapply will be working illegally and exposing the organisation to a £20,000 fine.

Plus, if the organisation is found to be knowingly employing an illegal worker, a criminal offence is being committed.

Updated guidance on right to work checks post-Brexit is expected before June 2021 however at this time it looks like it will be sensible to require all EU members of staff to provide evidence of having applied and/or obtained settled or pre-settled status in early July 2021.

Disclaimer

Given the fast pace of change, we would stress that this information is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

As a hub, we have included references to articles and explainers from third parties. We have no control over and are not responsible for the content, use by you or availability of those third party websites, for any products or services you buy through those sites or for the treatment of any personal information you provide to the third party.

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Flora Mewies

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Roisin Patton

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Gillian Burns

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Newcastle

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Natalie Payne

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