The Home Office new points-based immigration system for all migration to the UK and the 30th June 2021 deadline for UK residency ‘settled’ and ‘pre-settled’ status applications.

Post-Brexit: Points Based Immigration System

Key Dates:

1^st January 2021
New points-based immigration system introduced.

30^th June 2021
Deadline for EU Settlement Scheme (EUSS) applications for EU/EEA/Swiss Citizens who were in the UK before 11.00pm on 31^st December 2020.

1^st July 2021
Employers required to check whether their EU/EEA/Swiss employees have the right to work in the UK, including through the EUSS

As the UK’s participation in the EU free movement ended on 1^st January 2021, the Home Office implemented a new points-based immigration system for all migration to the UK

 

Who should apply?

Citizens of the following countries:

Austria Belgium Bulgaria Croatia Republic of Cyprus Czech Republic Denmark Estonia Finland France

Germany Greece Hungary Iceland Italy Latvia Liechtenstein Lithuania Luxembourg Malta

Netherlands Norway Poland Portugal Romania Slovakia Slovenia Spain Sweden Switzerland

The above excludes Irish nationals who do not require immigration permission to work in the UK as their rights are protected under the Common Travel Area Agreement.

The system categorises workers into 3 main groups:

1. Europeans who were in the UK prior to 1^st January 2021. This category will often have unrestricted right to work under the EU Settlement Scheme (EUSS) and individuals need to hold either ‘pre-settled’ or ‘settled’ status.
2. Other foreign workers entering the UK for skilled work are able to undertake work and employment if they have an entry permission that gives them the right to work and qualify for sponsorship.
3. Other foreign workers entering the UK for ‘low’ skilled employment need entry permission that allows right to work e.g. an Indefinite Leave to Remain, a dependent visa, UK Ancestry etc.

 

Determining if a non-UK Citizen has the right to work in the UK

The aim of the new system is to facilitate the entry of ‘skilled’ workers but does make it more difficult for employers to recruit ‘low’ skilled workers or fill ‘low paid’ vacancies.

Examples of employees or prospective employees who are not likely qualify for right to work:

• Not eligible for settled or pre-settled status under EUSS.
• Not eligible for another self-sponsored visa that allows right to work in the UK.
• Candidate does not meet new Skilled Worker or ICT Visa requirements.
• As an employer you do not hold a Sponsorship Licence.

Current Europeans (who were in the UK prior to 1^st January 2021)

This group of workers are protected under a provision in the Brexit Withdrawal Agreement whereby those that were in the UK before the end of the transition can apply for settlement status under the EU Settlement Scheme as follows:

Greater than 5 years’ residence:

• Qualify for ‘settled’ status, the right to stay in the UK permanently.
• Europeans holding ‘settled’ status (or a Permanent Residence document) can subsequently apply for British citizenship after residing in the UK for 6 years.
• Even if the employee has lived in the UK for a number of years or has a UK Permanent Residence document, they still need to apply under the EU Settlement Scheme. The only exception being if they hold an indefinite leave to remain or enter.
• Settled status can be lost of the applicant leaves the UK for a continuous period of 5 years or more (4 years or more for Swiss nationals).

Less than 5 years’ residence:

• Qualify for ‘pre-settled’ status, the right to continued residence in the UK and move to ‘settled’ status after 5 years residency.
• Pre-settled status can be lost if the applicant leaves the UK for a continuous period of 2 or more years.
• Both ‘settled’ and ‘pre-settled’ status provides the applicant with the following rights:
• Live in the UK;
• Work in the UK;
• Use the NHS;
• Enrol in education or continue to study;
• Access to public funds such as benefits and pensions (subject to eligibility);
• Travel in and out of the UK.

https://www.gov.uk/settled-status-eu-citizens-families/eligibility#content

Exclusions:

Serious criminals and anyone with excessive absences (continuous residence will be broken if the applicant has spent more than 6 months in any 12-month period out of the UK, with some exceptions e.g. childbirth, serious illness, study, overseas posting etc.,) may be refused status or subsequently lose their status.

Non-European Family Members:

• Non-European family members of qualifying applicants can also apply under both schemes (even if they hold an old-style EU Residence Card or Permanent Residence).
• If the family member does not have a UK Residence card, they will need to complete an on-line application and attend a biometric appointment in the UK.
• Some family members may be able to come to the UK after 1^st January 2021, this will be dependent upon their relationship and whether they are related before 31^st December 2020.

Frontier Workers

This category applies to people who were established as ‘frontier workers’ immediately before the end of the transition period (11.00pm on 31^st December 2020) and have been since then:

• An EU/EEA or Swiss national.
• Not primarily resident in the UK.
• One of the following:
  • A worker in the UK (in genuine employment wholly or partly undertaken in the UK e.g. has a contract from an employer and proof of payments).
  • A self-employed person in the UK (in genuine employment e.g. has an agreement with an employer to perform certain tasks and proof of payments).
  • A person who has retained the status of being a worker/self-employed (e.g. have had to stop working due to circumstances such as: illness, accident, pregnancy/childbirth, unemployed, vocational training).

The new system allows them the right of admission to the UK between 1^st January 2021 and 30^th June 2021, to carry on their activities without a permit or visa until 1^st July 2021 when they will be required to present a ‘Frontier Worker’ permit (applications are on-line and free of charge) or visa permission under UK law, as evidence to their right to work in the UK.  This requirement will be met if at a particular point in time they can show either that:

• They have been in the UK for less than 180 days in the 12-month period before the relevant date;
  Or
• There were exceptional reasons for not having done so e.g. illness, COVID travel restrictions, pregnancy etc.,) and they have returned to their country of residence at least once in the 6-month period before the relevant date or twice in the 12-month period.

They must not have ceased to be a worker or self-employed in the UK or ceased to have retained their worker status. Family members of a ‘Frontier worker’ are not eligible to apply for a Frontier Worker permit.

 

Making an Application: The Employee

Europeans living in the UK will need to make an application to the Home Office to continue their residency in the UK, the deadline for both ‘settled’ and ‘pre-settled’ status is 30^th June 2021.

Anyone missing this deadline may be prevented from applying late and treated as being without lawful status or undocumented migrants in the UK.  A list of ‘reasonable grounds’ for a delay in making an application is available on the Home Office website.

Applications can be made on-line using an electronic device such as a smartphone, tablet or computer (Android 6.0 or later device or iPhone 7 or above – connected to 3G/4G or Wi-Fi) and downloading a software update to instal the EU Exit: ID document check app.

Applications can also be made by sending documentation to and/or attending a Registry Council Office (fees may apply for this option).

The process requires evidence be provided as follows:

• Biographical information from their valid biometric passport or national identity card with a biometric chip (or if they are not an EU, EEA or Swiss citizen their UK residence card with a biometric chip), by taking a photograph (selfie) to scan their face and answer questions on the app and webpage.
• The system checks residence against Government records against tax and benefit records. Where this does not cover the entire period of residence the applicant may need to provide additional information e.g. bank statement, council tax bills or letters from their employer.   A list of recommended documentation can be found on the Government website: https://www.gov.uk/guidance/eu-settlement-scheme-evidence-of-uk-residence.
• Criminal checks (undertaken on a case-by-case basis).
• Evidence of relationship (where applicable) e.g. marriage, civil partnership or birth certification).

 

EUSS Application Process

Step 1: Verify Identity
Either using the EU EXIT ID App (or sending documents to Registry Council Offices) the applicant will be provided with a one-time access code (via text or email).

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Step 2:   Complete On-line Form
Answering questions and uploading documents (if required), scan chip on passport/or biometric Residence Card. Use camera to scan your face/take a selfie.**

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Step 3: Application Processing
Processed by UKVI approximately 2-3 weeks.

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Step 4: Decision
Confirmation sent by email. Employee can log onto portal to send information to their employer.

Source: CIPD

 

**If the App cannot identify documentation, the applicant can make an appointment at an ID document scanning location, a full list of locations can be found on the Government website (guidance page):  https://www.gov.uk/government/publications/eu-settlement-scheme-id-document-scanner-locations/locations-offering-chip-checker-services

 

Supporting existing employees with their Application

The ‘legal’ advice on this at present is very ‘risk adverse’ recommending employers take a ‘light touch’ approach with the employees and not force or push employees to apply under the scheme…but does very clearly state that ‘failure to comply with these new rules could leave to civil penalties or criminal sanctions’.

Important: Employing an illegal worker can lead to a fine of £20,000, criminal charges, reputational damage and/or the loss of any sponsored workers.

That said…the consequences of not making an application could result in the employee being considered illegal to work in the UK, which in turn could impact their personal situation in relation to; overall right to work, rented accommodation, access to health care, bank/building society accounts, making an application for a drivers licence etc..

On this basis the recommended course of action to be taken by employers NOW is to actively encourage and support and employees with their applications by:

• Communicating the process e.g. through briefings, FAQ’s, webinar’s
• Allowing and supporting employees to make their application during work-time.
• Providing access to electronic devices such as smartphone, tablet, computer.

The following Government link [last updated January 2021 – update awaited] provides further useful guidance, leaflets and posters: https://www.gov.uk/government/collections/eu-settlement-scheme-employer-toolkit

 

Right to Work Checks and Documentation

In the UK employers have always held a legal responsibility to undertake right-to-work checks for EVERY employee, either prior to employment commencement or on their first day of employment.

To perform a valid right-to-work check the employer (not a third-party) must be aware that only original documentation is permissible and undertake the following:

• Take a copy of the original document, sign and date the copy, as a guide we recommend that the employer writes on the copy documentation “I confirm that original documents have been seen” and date and sign the copy documentation.
• Check that documents provided are genuine, original, unchanged and belong to the employee who has supplied them.
• Ensure relevant dates have not expired.
• Check photographs are consistent across all documents and look like the employee.
• Check date of birth is consistent across all documents.
• Ensure that the employee has the right to undertake the type of work being offered (including any limit on hours they can work).
• For students check evidence of their study plans, times, holidays etc..
• Where there is a discrepancy with names, ask the employee for supporting documentation to show why they are different e.g. a marriage certificate, divorce decree.

 

Temporary COVID Adjustments (check prevailing legislation at time of reading)

Due to restrictions relating to COVID, the Home Office has temporarily adjusted the right-to-work process so that instead of an ‘in person’ check, employers are permitted to view original documentation on-line in the presence of the employee/owner.  Employers must request a scanned copy and arrange a video call with the individual to validate the documentation and record on the documentation ‘date of check, signature and ‘adjusted check undertaken on [date] due to COVID-19’.

Employers will be required to undertake respective checks following 8 weeks after COVID measures are lifted. Any follow-up documentation must be re-checked, originals seen and mark the copies ‘The employees employment commenced on [date].  The prescribed right-to-work-check was undertaken on [date] due to COVID-19’.

 

‘Statutory Legal Defence’ and recommended ‘temporary’ adjustments

It is suggested that at least until 30^th June 2021, employers may be able to obtain statutory defence against illegal working e.g. accepting a European passport or ID card, however all employees will still require permission to work in the UK under the new immigration system.  This places employers in a tricky position, having undertaken right-to-work checks prior to knowing whether the employee genuinely has the right to work in the UK, especially taking into consideration that employers found not to be undertaking a compliant right-to-work process could receive a penalty fine of up to £20,000.

In conflict with this, concerns have been voiced that should employers make it mandatory for Europeans to evidence their status under the new immigration system it could be deemed discriminatory …..so what can employers do in response to this dilemma?

A couple of suggestions would be to review your on-boarding and document-checking process, to ensure it is robust and auditable, some recommendations include:

• Ensuring your probationary period does not extend beyond 6 months.
• Your employment contract clearly states continued employment is conditional upon receipt of valid and satisfactory right to work documentation.
• Add the ‘Employer Checking Service’ (ECS) to your new starter process. Use the ECS to verify that all employees have the continuing right to work.  This service will confirm if the individual has any outstanding appeals and that they have an application pending with the Home Office (which includes renewals).  The ECS will normally respond within 5 – 10 days, providing either a ‘positive’ or ‘negative’ verification notice:

Positive Verification Notice: Confirms the individual has the right to work in the UK and provides the employer with a 6-month statutory defence against liability for a civil penalty should it be established that the individual no longer has the right to work in this period.

Negative Verification Notice:  Confirms the individual does not have the right to work in the UK and therefore does not provide any statutory defence against liability for a civil penalty.     

 

On-line Right to Work Checks

Where the employer is conducting an on-line right-to-work check the employee should provide their employer with a ‘share code’ which will allow the employer to view their status on-line.  The employer should download this information and record the name of the responsible person downloading this information and the date the check was made.

It is expected that from 1^st July 2021 (still TBC) employers will be able to complete on-line right-to-work checks for all EEA nations, as in most cases status will be under the EUSS or the points-based system.   A full list of approved documentation for right to work checks’ is expected to be available on the Government website shortly.

Historically it can be difficult to verify foreign documentation, EU documents (and some other countries) can be verified using the following website: https://www.consilium.europa.eu/prado/en/prado-start-page.html

 

Employer Sponsorship and Sponsorship Licences

Not all employers will need a sponsorship licence this will be largely determined by the types of job roles the Company is looking to engage.

Where however, this is required and an individual cannot secure the right to work in their own right, either by sponsoring themselves or a visa, the employer may be able to sponsor them.  ‘Sponsorship’ is essentially an agreement between the Home Office and the employer whereby the employer is entrusted to employ skilled workers and keeps the Home Office up-dated in relation to when the employment starts/finishes, personal details etc..

Sponsorship is usually based on the following ‘Skilled Worker’ criteria:

• Restricted job roles set at RQF 3 (Regulated Qualifications Framework), or equivalent and above.
• The employer has to pay a minimum salary of £25,600.
• Evidence may be requested to confirm that there is a genuine vacancy.

Employees who do not qualify for work permission in their own right will need to be sponsored under the Skilled Worker category, or as an Intra-Company Transferee (ICT) where they are employed overseas. Sponsorship is obtained through the Home Office’s Sponsor Management System (SMS), is valid for 4 years and subject to mandatory compliance obligations in-line with Home Office guidance.

Workers must be in skilled roles [a full list is expected to be available on the Government website shortly], meet salary and skills requirements and be sponsored by a UK employer.  Sponsorship is highly regulated and places the onus on the employer (Company) to comply with strict immigration requirements (to ensure compliance within the law and prevention of illegal working), to have a robust in-house supportive HR process, designated key personnel to manage the process and have access to the licence.  The UKVI (UK Visas and Immigration Department)  may undertake on-site audits, scoring the Company under certain categories e.g. HR systems, convictions and civil penalties, migrant compliance and employment practices.  The UKIV has the power to withhold or withdraw sponsorship licences.

Applications can take between 4-8 weeks to process and the current (non-refundable) application fee payable for small companies (or charitable status) to obtain a sponsor licence is £536 and it is £1,476 for large companies.  In addition to these initial application fees, there are fees associated with an application to expedite the initial application, renew an existing sponsor licence, or apply to extend the scope of an existing licence.

There are presently no fees for:

• Adding an ICT category to an existing Tier 2 General/Skilled Worker licence.
• Removal from register of sponsors (no reapplication for 12 months and key personnel restricted for 12 months from being listed on another sponsor licence)

For employers to sponsor an applicant under the Skilled Worker or ICT category they must hold an A-Rated Sponsor Licence.  This will enable the employer to issue Certificates of Sponsorship (CoS) to existing and prospective employees in advance of their Skilled Worker or ICT visa application, or to apply for a Defined Certificate of Sponsorship (DCoS) on the employee’s behalf.

As it is possible to make an application for both the Skilled Worker and Intra-Company Transfer sponsor licence at the same time, prior to making any application the Company should carefully consider its current and future ‘resource’ requirements, for example does the business operate solely in UK or have requirements for overseas employment.

Applications require the Company to submit 4 pieces of documentation from a set list which can be found at the following Government website: https://www.gov.uk/government/publications/supporting-documents-for-sponsor-applications-appendix-a  Further guidance is available at: https://www.gov.uk/government/collections/sponsorship-information-for-employers-and-educators

In addition the employer is responsible for ensuring the allocation of the following roles to support the application process:

Authorising Officer:	A paid employee or office holder of the UK company based in the UK.
Key Contact:	This could be the Authorising Officer or another suitable representative to liaise between the Company and the UKVI.
Level 1 User:	This is often the Authorising Officer who has full access to the SMS, allows the CoS/DCoS to be issued and has reporting duties.

 

Sponsorship Licence Fees

The Governments definition of a ‘small company’ is where 2 of the following apply:

• Your annual turnover is £10.2m or less.
• Your total assets are worth £5.1m or less.
• You have 50 employees or less.

The definition of a ‘Charitable sponsor’ is if the Company is either:

• A registered, excepted or exempt charity.
• An ecclesiastical corporation established for charitable purposes.

The Government recommends that you contact the Business Helpdesk if you are unsure which category your business falls into. Visit:   https://www.gov.uk/uk-visa-sponsorship-employers/apply-for-your-licence

 

Definition of a ‘skilled worker’

It is recommended that prior to making an application for a Sponsorship licence or issuing a Certificates of Sponsorship (CoS) Companies ensure that any prospective job role, employee and/or candidate meets the eligibility criteria under the new points-based immigration system.

A total of 70 points must be met to qualify as a ‘skilled worker’ under the new points-based immigration system. These points are linked to various skill and salary requirements and there is the ability to ‘trade’ points for various attributes e.g. if occupation is listed under the ‘Governments Shortage Occupation List’ or is listed as being eligible for additional academic points etc..

The ‘Skilled Worker’ qualification points are determined by 2 Tests, as follows:

Test 1 – All 50 Points must be Scored:

Employed by an approved Sponsor:                        20 Points
Skilled Job:                                                                    20 Points
English Language:                                                        10 Points

 

Test 2 – At least 20 Points must be Scored:

Salary £20,480 (minimum) to £23,039                    0 Points
Salary £23,040 – £25,599                                            10 Points
Salary £25,600 or above                                              20 Points
Job is a Shortage Occupation                                      20 Points
PhD in Relevant Subject                                               10 Points
PhD in STEM Subject                                                    20 Points  [e.g. science subjects, maths, IT etc..]
Applicant is a New Entrant                                          20 Points

 

Definitions Explained:

Sponsorship: Role sponsored by a UK Company (entity) holding an Approved Sponsorship Licence from the Home Office.

Skilled Role: Skilled Worker threshold set at RQF 3 (Regulated Qualifications Framework), equivalent A-Level standard.  To confirm eligibility for the Home Office Standard Occupational Classification Codes (SOC Code) visit: https://www.gov.uk/government/publications/skilled-worker-visa-eligible-occupations/skilled-worker-visa-eligible-occupations-and-codes

English Language: A Skilled Worker must speak English which will be assessed using 4 components; listening, reading, writing and understanding.  ‘Speaking English’ will be  demonstrated either by being a national of an English-speaking country, holding a recognised qualification taught in English, passing a GCSE, A Level, Scottish National Qualification at Level 4  or 5 or Scottish Higher or Advanced Higher in English (language or literature taught in a UK school) or passing a recognised English language test.

Salary Thresholds:  The Skilled Worker must be paid the higher of either the minimum salary for the visa category, or the minimum salary for the job role (at the ‘going rate’ applied for other job holders).

NB. It is anticipated that the minimum rates will be subject to change on an annual basis

Job is a Shortage Occupation:  The Government has created a ‘Shortage Occupation List’ (SOL) identifying a list of occupations where it is deemed there is a shortage in the UK labour market.  To confirm Skilled Worker visa eligibility – occupation and codes visit: https://www.gov.uk/government/publications/skilled-worker-visa-eligible-occupations/skilled-worker-visa-eligible-occupations-and-codes

Source: CIPD Employers Legal Guide to Post-Brexit Immigration