Lewis Silkin – Key immigration action points for HR in the second half of 2021

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The post-Brexit grace period came to an end on 1 July 2021. Free movement has been replaced in the UK by the domestic immigration system, including the new Points-Based Immigration System (PBIS).

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As a reminder, EEA/Swiss nationals, excluding Irish nationals (‘EEA nationals’) who want to work in the UK now need some form of visa permission, irrespective of when they arrived in the country. Employers need to ensure they understand how this affects their business, how their recruitment plans and budgets are impacted, and whether their staff have the correct status to allow them to continue working both in the UK and abroad.

We recommend the following key action points for the second half of 2021.

Inform your current EEA/EEA family member employees of the provisions for late applications to the EU Settlement Scheme

Eligible EEA/EEA family member employees who failed to apply to the EU Settlement Scheme by the 30 June 2021 deadline can still submit an application provided there are reasonable grounds for applying late. The list of reasonable grounds is non-exhaustive and the Home Office has confirmed that, for an initial period, most late applications will be accepted for individuals who were not aware of the requirement to apply.

We recommend encouraging any employees who missed the deadline to apply as soon as possible and offering support for those who need it. Employers should also be aware that some individuals who previously lived in the UK but had an extended absence or absences due to the COVID-19 pandemic may not realise that the Home Office issued a more generous COVID-19 absences policy for the EU Settlement Scheme on 10 June 2021, shortly before the main application deadline for the scheme.

Non-EEA family members can still join EEA citizens who were living in the UK by 31 December 2020. With limited exceptions, the relationship must already have existed by that date.

Need more detailed assistance?

  • Our article highlights the EU Settlement Scheme deadlines and some of their implications.
  • We also look at the updated COVID-19 absences policy here.

We can also assist you with template communications for your employees, and to assist individuals with EU Settlement Scheme and British citizenship applications.

Get in touch with a member of our Immigration Team to discuss putting together the right tools for your business.

Get to grips with the new Points-Based Immigration system

Throughout the first half of 2021, employers will have already started to see how the new visa rules under the Points-Based Immigration System have been affecting business, particularly when recruiting EEA nationals from overseas. With the previous routes for sponsoring workers now being significantly reformed, it will be important for employers to have a good understanding of the system and how to navigate it.

The Frontier Worker Permit remains an option for EEA-national cross-border workers, provided they were travelling to the UK for work on or before 31 December 2020, either on an employed or self-employed basis. These individuals will not be required to apply for a visa under the Points-Based Immigration System. However, from 01 July 2021 onwards, it will no longer be sufficient for them to show evidence of previous work in the UK to be permitted entry in a work capacity. Instead, such cross-border workers must ensure, as a minimum, that they have applied for their Frontier Worker Permit before next travelling to the UK.

The Temporary Worker – International Agreement Worker visa (T5) provides a short-term visa solution for workers entering the UK to provide a service under a contractual agreement covered by international law. Employers operating in sectors that relied on the EEA-national labour market prior to the end of the post-Brexit grace period, such as the manufacturing and energy industries, should consider applying for a T5 (International Agreement) sponsor licence now to be able to continue recruiting EEA citizens.

In-country switching from the Intra-Company Transfer (ICT) visa into the Skilled Worker route is now permitted following the end of the cooling-off rule and introduction of more flexible switching provisions. This option will be useful for existing ICT employees required in their roles longer-term and for ICT employees who ultimately want to settle in the UK where this was not previously an option. It is worth remembering that any time accrued on the ICT visa route will not count towards settlement in the UK.

Also on the topic of the ICT visa route, the Migration Advisory Committee (MAC) has been seeking stakeholders’ views on the route’s operation and effectiveness. This includes exploring potential expansion of the immigration options for overseas businesses aiming to set up a UK presence. The MAC is due to report back to the government in October 2021. Find out more in our article here.

Finally, the Home Office has been consulting sponsors on the design of an improved sponsorship system for workers. It is expected that further engagement will take place later in 2021. For information on the Home Office’s initial sponsorship survey, see here.

Need more detailed assistance?

Our Immigration Law Academies are a one-stop-shop for learning about the new system. The course has been specially designed to give HR and in-house professionals a full overview of the business immigration areas, including the Points-Based Immigration System. Our next Academy is being held on 22 and 23 September 2021, register here.

We will be holding a webinar on the T5 (International Agreement) route in October 2021 – keep a look out for the invite or contact us to join our mailing list here.

Our offering also includes bespoke training for businesses who want to train a larger team or would simply prefer to tailor a course to their own specific needs. Please get in touch with one of our Immigration Team members to discuss further or to have a chat about what the rule changes could mean for your business.

Ensure you have an up-to-date sponsor licence if you anticipate recruiting from the EEA and the rest of the world

If you have not used the sponsorship system before, you may find you will now need to use it as employing nationals from the EEA and beyond will require a sponsor licence in some cases. It is particularly important to consider applying for one now that the grace period has ended so that you are ready to use it when you need to recruit, especially if you operate in a sector which relies heavily on EEA nationals. Sponsor licence applications can take up to eight weeks to process so it pays to act in advance.

If you currently have a sponsor licence, you will need to ensure that it is up-to-date and accurately reflects your organisation’s current structure. Where changes have occurred on an existing sponsor licence, you may need to notify the Home Office. You should also ensure your HR processes are in good shape to meet your growing sponsor licence duties in the event of a Home Office audit. For organisations that have an ICT sponsor licence only, applying to add a Skilled Worker licence will be helpful to allow sponsorship under the Skilled Worker route too.

Sponsor employers should also maintain an understanding of the temporary Home Office COVID-19 concessions in place during the pandemic, and how these change over the coming months. Whilst the Home Office has not required remote working during the pandemic to be reported as a formal change of work location for sponsored workers, the concession will be withdrawn and potentially with very little notice. Employers will need to be aware of any relevant reports to submit on the licence, as well as ensure ahead of time that any arrangements with sponsored workers for long-term remote working are in line with sponsor compliance duties

Need more detailed assistance?

Our Immigration Team has a wealth of experience in advising on and assisting with sponsor licence applications and can help you with any queries if you are new to the process.

We will be holding a webinar on Sponsor Licence compliance in September 2021.

As part of our Immigration Solutions for HR, our Immigration Team can also offer training, compliance guides and mock audits of your systems to identify any areas of risk, suggest improvements and prepare you for a real Home Office audit.

Consider the implications of the end of free movement and the COVID-19 pandemic on right to work checks and workforce stability

All UK employers have a responsibility to ensure that their employees have the right to work in the UK before they start work and throughout their employment. The end of the grace period on 1 July 2021 has resulted in changes to the UK’s right to work check system. One of the most significant of these changes is that EEA passports/ID cards are no longer acceptable evidence of a right to work in the UK.

The Home Office has confirmed that retrospective checks are not required for EEA nationals and their family members who commenced employment and had a valid right to work check completed by 30 June 2021. However, employers must be mindful of the appropriate steps to take on discovering an existing employee failed to apply for EUSS status before the deadline, despite being entitled to do so. Under the Home Office’s transitional arrangement, which will end on 31 December 2021, clear steps are outlined to guide employees and employers through this process.

In addition, the Home Office’s temporary adjusted right to work check process that was introduced to address the logistical issues created by the COVID-19 pandemic is scheduled to end on 31 August 2021. With many organisations intending to continue remote working arrangements beyond this date, employers will need to think about appropriate changes to internal processes to be able to manage right to work checks in a compliant manner.

  • Our webinar and Q&A on Right to Work Checks from 1 July 2021 (held on 24 June 2021) outlines some of the main issues and how to address them.
  • Current guidance on right to work checks from 1 July 2021 is covered in our article here.
  • The Home Office’s plans for ending adjusted right to work checks are discussed in our article here.

Need more detailed assistance?

Our Immigration Solutions for HR provide a full overview of the requirements for right to work compliance. We offer training and e-learning courses on right to work checks to help upskill your team and a handbook which can be used as a learning tool.

We can also help to update your internal policies and recruitment documents to ensure they are in line with the new right to work system in place since 1 July 2021.

Understand what EEA and UK nationals are allowed to do as visitors

EEA nationals visiting the UK are now required to do so on the same basis as all other visitors. The allowed activities for visitors have been expanded, however the position is significantly restricted in comparison to free movement. EEA nationals and their employers will need to adjust to the new restrictions and ensure they are complied with.

The end of free movement not only affects EEA nationals who work in the UK. It has implications UK nationals who live in, commute to or may want to work on the continent.

If you have a workforce which spans Europe, it is important to factor in the new rules on visiting and working in Europe. UK nationals may now need a visa to work in Europe, which requires local visa support and additional time and financial input.

At Lewis Silkin we can call upon an extensive network of local immigration lawyers via our Ius Laboris network to ensure you can obtain timely, clear and cost-effective advice and support for your global moves.

Need more detailed assistance?

  • See this Ius Laboris webinar on seconding workers to EU member states.

Our Immigration Team can assess whether planned activities fall within those allowed for visitors, or whether work permission is required. We can also assist with making visa applications as appropriate.

Understand when to use the new Graduate route

The new Graduate route was launched on 1 July 2021, opening up a flexible unsponsored route for eligible international students to stay in the UK after graduation. This is an attractive option for businesses taking on interns or employees on a fixed-term contract where there is no guarantee that the role will lead to a permanent hire. Employers should however be aware that it is only possible to switch into the Graduate route from a Student visa.

Need more detailed assistance?

  • The new Graduate route and its implications are discussed in our article here.

We are able to assist individuals with Graduate visa applications. Please get in touch with one of our Immigration Team members to discuss further.

 

Related Item(s): Immigration & Global Mobility, BREXIT, Immigration

Author(s)/Speaker(s): Andrew Osborne, Priya Gandhi,

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