Since the beginning of 2021, the Government has implemented a raft of additional travel and entry measures to minimise the spread of new coronavirus variants in the UK.

Text:

These include pre-departure COVID-19 testing, travel bans, suspending travel corridor arrangements and requiring visits to the UK to be for an essential purpose. Plans have also been announced to review the list of occupation-based self-isolation exemptions and to start using managed isolation hotels for those arriving from countries on the travel ban list.  

The recent developments for travel to England are outlined below, however the key point to note is that conditions for travel, entry and post-entry are rapidly changing and likely to become more restrictive in the short-term. Our recommendation is therefore for travellers to make preparations to meet the requirements in good time, including checking for updates to the position throughout the two weeks leading up to departure and seeking immigration advice where needed.

The requirements for entry to Scotland, Wales and Northern Ireland are broadly similar, however there are some differences, including to when specific changes become effective. Travellers to these destinations should ensure they check the current information published by the Government of the relevant nation.

Pre-departure COVID-19 testing

Since 4 am on 18 January 2021, all international passenger arrivals to England by air, sea or rail must have proof of an acceptable negative coronavirus test taken within 72 hours of the departure of their transportation to the UK. If the length of a person’s journey means they are unable to take a test within three days of their departure for England (e.g. if they will be transiting airside), they should take a test as close as possible to when they start their journey.

There is no specific list of authorised test providers, however the test providers and test types must meet the Government’s published minimum performance standards for specificity, sensitivity and viral loads. Some visa services providers such as VFS Global are coordinating COVID-19 testing services in various countries around the world, however the requirements for entry to England should be checked with the individual provider.

If a passenger has transit stops on their journey to England is acceptable for them to take a test part-way through their journey, however they should check whether this is logistically possible before they set out. This is because some countries have entry restrictions or other requirements that may make testing impossible. If a person is denied entry to the country where they planned to take their test, they will be allowed to continue their journey but risk being fined at least £500 on arrival due to not having a valid test result.

Travel bans 

Flights and vessels have been banned from arriving directly in the UK from a ‘red list’ of countries to which a travel ban applies. The list has been expanded since mid-January 2021 in response to the appearance and movement of new virus strains identified in Brazil and South Africa.

Individuals who have been in or transited through a red list country in the 10 days before they arrive in the UK will be refused entry, unless they are a British or Irish national, or a person with residence rights in the UK, as defined on GOV.UK. There is also currently a specific exemption for hauliers travelling from Portugal.

Those who are permitted to enter the UK after being in a relevant country within the last ten days will need to use an indirect route to arrive, or be brought to the UK on a repatriation service. On arrival to England, currently they must self-isolate for a full ten days, along with their household, and are not eligible to use the Test to Release scheme to reduce their self-isolation period.

Managed isolation in hotels

The Government announced on 27 January that the current self-isolation arrangements for those arriving from travel ban countries will be replaced by managed isolation in hotels. Further details are not yet available, including whether or not entire hotels will be government-managed for this purpose, and what the cost to travellers will be.

Travel corridors and self-isolation exemptions

Since 18 January 2021, all travel corridors to the UK have been suspended until further notice. The effect of this change is that only arrivals from the Common Travel Area are exempt from the requirement to self-isolate, along with those who are exempt because of their occupation.

The list of occupation-based exemptions does not apply to individuals who have been in or transited through ‘red list’ countries in the 10 days before their arrival in England. The exemptions have been narrowed three times already since the beginning of 2021, and a full review is currently underway with a view to reducing them further.

Visitors

Because of the national lockdown implemented from 4 January 2021, visitors arriving in the UK may be refused entry if their reason for seeking admission is not considered to be for an essential purpose. There is currently no definition of this, and reasons for travel will be considered by Border Force on a case-by-case basis.

If you have any queries about the current or planned requirements and how to manage them, please get in touch with a member of our Immigration Team.

 

Related Item(s): Immigration & Global Mobility

Author(s)/Speaker(s): Andrew Osborne, Kathryn Denyer,

Since the beginning of 2021, the Government has implemented a raft of additional travel and entry measures to minimise the spread of new coronavirus variants in the UK.

Text:

These include pre-departure COVID-19 testing, travel bans, suspending travel corridor arrangements and requiring visits to the UK to be for an essential purpose. Plans have also been announced to review the list of occupation-based self-isolation exemptions and to start using managed isolation hotels for those arriving from countries on the travel ban list.  

The recent developments for travel to England are outlined below, however the key point to note is that conditions for travel, entry and post-entry are rapidly changing and likely to become more restrictive in the short-term. Our recommendation is therefore for travellers to make preparations to meet the requirements in good time, including checking for updates to the position throughout the two weeks leading up to departure and seeking immigration advice where needed.

The requirements for entry to Scotland, Wales and Northern Ireland are broadly similar, however there are some differences, including to when specific changes become effective. Travellers to these destinations should ensure they check the current information published by the Government of the relevant nation.

Pre-departure COVID-19 testing

Since 4 am on 18 January 2021, all international passenger arrivals to England by air, sea or rail must have proof of an acceptable negative coronavirus test taken within 72 hours of the departure of their transportation to the UK. If the length of a person’s journey means they are unable to take a test within three days of their departure for England (e.g. if they will be transiting airside), they should take a test as close as possible to when they start their journey.

There is no specific list of authorised test providers, however the test providers and test types must meet the Government’s published minimum performance standards for specificity, sensitivity and viral loads. Some visa services providers such as VFS Global are coordinating COVID-19 testing services in various countries around the world, however the requirements for entry to England should be checked with the individual provider.

If a passenger has transit stops on their journey to England is acceptable for them to take a test part-way through their journey, however they should check whether this is logistically possible before they set out. This is because some countries have entry restrictions or other requirements that may make testing impossible. If a person is denied entry to the country where they planned to take their test, they will be allowed to continue their journey but risk being fined at least £500 on arrival due to not having a valid test result.

Travel bans 

Flights and vessels have been banned from arriving directly in the UK from a ‘red list’ of countries to which a travel ban applies. The list has been expanded since mid-January 2021 in response to the appearance and movement of new virus strains identified in Brazil and South Africa.

Individuals who have been in or transited through a red list country in the 10 days before they arrive in the UK will be refused entry, unless they are a British or Irish national, or a person with residence rights in the UK, as defined on GOV.UK. There is also currently a specific exemption for hauliers travelling from Portugal.

Those who are permitted to enter the UK after being in a relevant country within the last ten days will need to use an indirect route to arrive, or be brought to the UK on a repatriation service. On arrival to England, currently they must self-isolate for a full ten days, along with their household, and are not eligible to use the Test to Release scheme to reduce their self-isolation period.

Managed isolation in hotels

The Government announced on 27 January that the current self-isolation arrangements for those arriving from travel ban countries will be replaced by managed isolation in hotels. Further details are not yet available, including whether or not entire hotels will be government-managed for this purpose, and what the cost to travellers will be.

Travel corridors and self-isolation exemptions

Since 18 January 2021, all travel corridors to the UK have been suspended until further notice. The effect of this change is that only arrivals from the Common Travel Area are exempt from the requirement to self-isolate, along with those who are exempt because of their occupation.

The list of occupation-based exemptions does not apply to individuals who have been in or transited through ‘red list’ countries in the 10 days before their arrival in England. The exemptions have been narrowed three times already since the beginning of 2021, and a full review is currently underway with a view to reducing them further.

Visitors

Because of the national lockdown implemented from 4 January 2021, visitors arriving in the UK may be refused entry if their reason for seeking admission is not considered to be for an essential purpose. There is currently no definition of this, and reasons for travel will be considered by Border Force on a case-by-case basis.

If you have any queries about the current or planned requirements and how to manage them, please get in touch with a member of our Immigration Team.

Related Item(s): Immigration & Global Mobility

Author(s)/Speaker(s): Andrew Osborne, Kathryn Denyer,

Although still a largely agrarian economy, Indonesia is rapidly industrialising and diversifying into other spheres. The continuous and steady growth of the country makes Indonesia an attractive place for business in the coming years. It is important that organizations currently doing business in the country or considering doing so are aware of the often strict employment laws in Indonesia.

Text:

This in-brief provides a snapshot of some of the key aspects of employment law in Indonesia.

Our Hong Kong office was opened to meet a growing demand from many of our clients for coordinated employment and immigration/global mobility support across the Asia Pacific region (including Indonesia).

This publication provides general guidance only: expert advice should be sought in relation to particular circumstances. Our Hong Kong office can source Indonesian advice through its links with local firms in Indonesia.

Type: Inbrief

Author(s)/Speaker(s): Kathryn Weaver, Catherine Leung,

Attachment: Lewis Silkin Inbrief – Employment law in Indonesia – an overview

Although still a largely agrarian economy, Indonesia is rapidly industrialising and diversifying into other spheres. The continuous and steady growth of the country makes Indonesia an attractive place for business in the coming years. It is important that organizations currently doing business in the country or considering doing so are aware of the often strict employment laws in Indonesia.

Text:

This in-brief provides a snapshot of some of the key aspects of employment law in Indonesia.

Our Hong Kong office was opened to meet a growing demand from many of our clients for coordinated employment and immigration/global mobility support across the Asia Pacific region (including Indonesia).

This publication provides general guidance only: expert advice should be sought in relation to particular circumstances. Our Hong Kong office can source Indonesian advice through its links with local firms in Indonesia.

Type: Inbrief

Author(s)/Speaker(s): Kathryn Weaver, Catherine Leung,

Attachment: Lewis Silkin Inbrief – Employment law in Indonesia – an overview

From 31 January 2021, two new immigration routes will be launched for British National (Overseas) (‘BNO’) citizens and for their adult children, who are born on or after 1 July 1997. These two routes are BN(O) Status Holder and BN(O) Household Member.

Text:

Who can apply under the BN(O) Status Holder route?

Any BNO citizen who is ordinarily resident in Hong Kong or in the UK (plus Jersey, Guernsey and the Isle of Man) is eligible to apply under this route. It is not necessary for them to hold a valid BNO citizen passport, as long as they qualify for BNO citizenship. Usually this includes people born in Hong Kong before 1 July 1997 who registered for BNO status (though note that there may be some exceptions depending on individual circumstances).

Some family members of a BNO citizen meeting the above criteria can also apply at the same time as the main applicant. The following categories of family members can apply as dependants:

• Spouses and unmarried partners who are in a genuine and subsisting relationship with the BNO citizen. Unmarried partners must have also lived with the BNO citizen for at least two years in a relationship akin to marriage.
• Children and grandchildren under the age of 18, who normally live with the BNO citizen. Both parents of the child, or grandparents of a grandchild must be applying at the same time. Alternatively, if a child’s or grandchild’s application is being accompanied by only one parent’s or grandparent’s application, that parent or grandparent must evidence sole responsibility for the child.
• An adult dependent relative who is over the age of 18 and is the parent, grandparent, brother, sister, son or daughter of the BNO citizen. In addition, adult relatives must be dependent on the BNO citizen because of their age, illness or disability, form part of the same household and be unable to obtain the required level of help in Hong Kong.

Who can apply under the BN(O) Household Member route?

Adult children of a BNO citizen over the age of 18 and born on or after 1 July 1997 can apply under this route. They must normally live with their BNO citizen parent.

Main applicants under the BN(O) Household Member route can have dependants accompany them to the UK. However, this includes partners and minor children only (not grandchildren and adult dependent relatives).

Eligibility criteria for all applicants

Residence in Hong Kong or the UK

Those applying for entry clearance must be ordinarily resident in Hong Kong. Individuals who are already in the UK must be ordinarily resident in the UK. There is no minimum period of residence or maximum limit on absences to comply with. Applicants will need to show that they live in the UK or Hong Kong on a regular basis and provide evidence confirming this, eg utility bills, tenancy or mortgage agreement, identity card, a letter from an employer, doctor or government agency, school reports, tax documentation or a polling card.

Financial requirement

Applicants will need to show that they can maintain and accommodate themselves and dependants for at least six months. They will need to provide bank statements showing sufficient funds and evidence confirming accommodation arrangements, eg a tenancy agreement, letter from landlord or a family member.

Applicants who have been residing in the UK for more than 12 months are not required to provide the above evidence and will automatically meet the financial requirement.

Tuberculosis testing

Applicants resident in Hong Kong will need to provide TB test certificate from a Hong-Kong based Hong Kong-based approved clinic. UK applicants with leave granted for six months or less or who obtained leave to enter at the border will also need to provide a TB test certificate from a UK-based UK-based approved clinic.

Other requirements

Applicants must not have any serious criminal convictions or adverse immigration history, eg previously deceiving immigration authorities.

It is not necessary for applicants to speak English (and to meet the English language requirement) to be granted limited leave under these routes. However, those who wish to apply for settlement in the future must meet the English language and Life in the UK test requirements.

Application process

The Home Office intends to release an ID check app for use in the application process. Applicants with biometric passports can use the app to submit their application. Alternatively, applications can be made using an online form. Applicants will then be required to enrol their biometric information (fingerprints and a digital photo) at a visa application centre.

Visa duration and format

It is possible to apply either for a 30-month visa or a five-year visa. It may be convenient to apply for a five-year visa to avoid the need to renew it in the future, however this will involve greater upfront cost. Successful applicants will receive a digital visa.

Settlement and British citizenship

After five years continuous residence in the UK, main applicants and their dependants may become eligible for settlement, otherwise called indefinite leave to remain (ILR) or. permanent residence.  They will need to meet all the usual settlement requirements, which for adults includes passing the Life in the UK test (unless exempt) and not being absent from the UK for more than 180 days in any rolling 12-month period during the five years.

For most applicants, eligibility for British citizenship will become possible a year after settlement has been granted. It will be possible immediately after the grant of settlement for those with a British spouse or civil partner, or for children under 18 who are born in the UK. Naturalisation as a British citizen involves different residence requirements of no more than 450 days absence over the five years before the application (or no more than 270 days over a three year qualifying period for those with a British spouse or civil partner), and no more than 90 days absence in the final 12 months.

Cost

The Home Office application fee is £180 for a 30-month visa or £250 for a five-year visa.

Applicants will also be required to pay the Immigration Health Surcharge, which is currently £624 per year per adult and £470 per year per child. There may also be additional fees for appointments and for the priority service to expedite application processing.

Visa conditions

Main applicants and their dependants will be permitted to study and work in the UK with few restrictions while holding leave on these routes.

Employment as a professional sportsperson or sports coach will not be allowed.

There will also be no access to public funds while holding limited leave under the routes (though accessing the NHS and attending a state school is allowed).

If you would like further information about these routes or require assistance with applying, please contact Naomi Hanrahan-Soar or Li Xiang.

Related Item(s): Immigration & Global Mobility, Immigration law in Hong Kong, Asia Pacific Region

Author(s)/Speaker(s): Andrew Osborne, Naomi Hanrahan-Soar, Li Xiang,

From 31 January 2021, two new immigration routes will be launched for British National (Overseas) (‘BNO’) citizens and for their adult children, who are born on or after 1 July 1997. These two routes are BN(O) Status Holder and BN(O) Household Member.

Text:

Who can apply under the BN(O) Status Holder route?

Any BNO citizen who is ordinarily resident in Hong Kong or in the UK (plus Jersey, Guernsey and the Isle of Man) is eligible to apply under this route. It is not necessary for them to hold a valid BNO citizen passport, as long as they qualify for BNO citizenship. Usually this includes people born in Hong Kong before 1 July 1997 who registered for BNO status (though note that there may be some exceptions depending on individual circumstances).

Some family members of a BNO citizen meeting the above criteria can also apply at the same time as the main applicant. The following categories of family members can apply as dependants:

• Spouses and unmarried partners who are in a genuine and subsisting relationship with the BNO citizen. Unmarried partners must have also lived with the BNO citizen for at least two years in a relationship akin to marriage.
• Children and grandchildren under the age of 18, who normally live with the BNO citizen. Both parents of the child, or grandparents of a grandchild must be applying at the same time. Alternatively, if a child’s or grandchild’s application is being accompanied by only one parent’s or grandparent’s application, that parent or grandparent must evidence sole responsibility for the child.
• An adult dependent relative who is over the age of 18 and is the parent, grandparent, brother, sister, son or daughter of the BNO citizen. In addition, adult relatives must be dependent on the BNO citizen because of their age, illness or disability, form part of the same household and be unable to obtain the required level of help in Hong Kong.

Who can apply under the BN(O) Household Member route?

Adult children of a BNO citizen over the age of 18 and born on or after 1 July 1997 can apply under this route. They must normally live with their BNO citizen parent.

Main applicants under the BN(O) Household Member route can have dependants accompany them to the UK. However, this includes partners and minor children only (not grandchildren and adult dependent relatives).

Eligibility criteria for all applicants

Residence in Hong Kong or the UK

Those applying for entry clearance must be ordinarily resident in Hong Kong. Individuals who are already in the UK must be ordinarily resident in the UK. There is no minimum period of residence or maximum limit on absences to comply with. Applicants will need to show that they live in the UK or Hong Kong on a regular basis and provide evidence confirming this, eg utility bills, tenancy or mortgage agreement, identity card, a letter from an employer, doctor or government agency, school reports, tax documentation or a polling card.

Financial requirement

Applicants will need to show that they can maintain and accommodate themselves and dependants for at least six months. They will need to provide bank statements showing sufficient funds and evidence confirming accommodation arrangements, eg a tenancy agreement, letter from landlord or a family member.

Applicants who have been residing in the UK for more than 12 months are not required to provide the above evidence and will automatically meet the financial requirement.

Tuberculosis testing

Applicants resident in Hong Kong will need to provide TB test certificate from a Hong-Kong based Hong Kong-based approved clinic. UK applicants with leave granted for six months or less or who obtained leave to enter at the border will also need to provide a TB test certificate from a UK-based UK-based approved clinic.

Other requirements

Applicants must not have any serious criminal convictions or adverse immigration history, eg previously deceiving immigration authorities.

It is not necessary for applicants to speak English (and to meet the English language requirement) to be granted limited leave under these routes. However, those who wish to apply for settlement in the future must meet the English language and Life in the UK test requirements.

Application process

The Home Office intends to release an ID check app for use in the application process. Applicants with biometric passports can use the app to submit their application. Alternatively, applications can be made using an online form. Applicants will then be required to enrol their biometric information (fingerprints and a digital photo) at a visa application centre.

Visa duration and format

It is possible to apply either for a 30-month visa or a five-year visa. It may be convenient to apply for a five-year visa to avoid the need to renew it in the future, however this will involve greater upfront cost. Successful applicants will receive a digital visa.

Settlement and British citizenship

After five years continuous residence in the UK, main applicants and their dependants may become eligible for settlement, otherwise called indefinite leave to remain (ILR) or. permanent residence.  They will need to meet all the usual settlement requirements, which for adults includes passing the Life in the UK test (unless exempt) and not being absent from the UK for more than 180 days in any rolling 12-month period during the five years.

For most applicants, eligibility for British citizenship will become possible a year after settlement has been granted. It will be possible immediately after the grant of settlement for those with a British spouse or civil partner, or for children under 18 who are born in the UK. Naturalisation as a British citizen involves different residence requirements of no more than 450 days absence over the five years before the application (or no more than 270 days over a three year qualifying period for those with a British spouse or civil partner), and no more than 90 days absence in the final 12 months.

Cost

The Home Office application fee is £180 for a 30-month visa or £250 for a five-year visa.

Applicants will also be required to pay the Immigration Health Surcharge, which is currently £624 per year per adult and £470 per year per child. There may also be additional fees for appointments and for the priority service to expedite application processing.

Visa conditions

Main applicants and their dependants will be permitted to study and work in the UK with few restrictions while holding leave on these routes.

Employment as a professional sportsperson or sports coach will not be allowed.

There will also be no access to public funds while holding limited leave under the routes (though accessing the NHS and attending a state school is allowed).

If you would like further information about these routes or require assistance with applying, please contact Naomi Hanrahan-Soar or Li Xiang.

Related Item(s): Immigration & Global Mobility

Author(s)/Speaker(s): Andrew Osborne, Naomi Hanrahan-Soar, Li Xiang,

Free movement between the UK and the EEA/Switzerland came to an end at 11pm on 31 December 2020. Free movement has been replaced in the UK by the domestic immigration system, including the new Points-Based Immigration System (PBIS). EEA/Swiss nationals, excluding Irish nationals (‘EEA nationals’) who want to work in the UK now need some form of visa permission, depending on when they arrived in the country. This change has massive implications for UK employers. Employers will need to ensure they understand how the rules will affect their business, whether 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.

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Inform your current EEA employees and their family members about their eligibility for the EU Settlement Scheme to ensure they apply before the relevant deadline

 

Current EEA employees and their family members who are in the UK must apply under the EU Settlement Scheme by 30 June 2021. If they fail to do this, they risk losing their right to live and work in the UK. This would cause disruption to their lives and your business and result in significant added cost to resolve the situation. We recommend ensuring your employees are aware of their eligibility for Pre-Settled or Settled Status particularly in the run up to the deadline and offering support for those who need it.

• Our webinar and Q&A on Brexit and the EU Settlement Scheme has further information.
• Our article highlights some potential pitfalls to avoid with the EU Settlement Scheme, particularly when the circumstances of the COVID-19 pandemic are factored in.
• Finally, we have prepared a simple scenario infographic of what employers need to consider if they are looking to hire an EEA national or family member of an EEA national following the end of the transition period on 31 December 2020. Download it here. 

Need more detailed assistance?

Under the Brexit strand of our Immigration Solutions for HR, you can pick and mix from a range of options to help you navigate the EU Settlement Scheme including our handy FAQ guide, specific training sessions and advice surgeries for your EEA staff.

We are also able 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

 

It is important that you understand how the new visa rules under the Points-Based Immigration System affect your business, particularly if you want to continue to recruit EEA nationals.

The previous routes for sponsoring workers have been significantly reformed. For skilled workers, some requirements such as formal resident labour market testing have been removed, and the skill and salary thresholds have been lowered. See our overview article for further information about the main changes.

There are also new visa options such as the frontier worker permit which will assist European cross-border workers who travel to the UK regularly for work to continue to do so now free movement has ended.

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 8 and 9 March 2021. Find out more here.

We also offer bespoke training for businesses who want to train a larger team or just would 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 rules could mean for your business.

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 8 and 9 March 2021. Find out more here.

We also offer bespoke training for businesses who want to train a larger team or just would 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 rules 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 going forward. It is important to consider applying for one now so that you are ready to use it when you need to recruit. 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. You may need to make updates to the Home Office or ensure your HR processes are in good shape to meet your growing sponsor licence 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.

As part of our Immigration Solutions for HR, our Immigration Team can 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 on right to work check

 

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 free movement will necessitate changes to the right to work check system, however the Home Office has indicated that right to work checks will remain the same until 30 June 2021, due to the  six month grace period that EEA nationals have to secure their status under the EU Settlement Scheme. The continuation of existing checks leaves employers open to unwittingly employing someone who does not or who may soon not have status which allows them to work in the UK.

• Our webinar and Q&A on right to work checks beyond 2020 outlines some of the main issues and how to address them.

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.

In response to the specific issues raised by the grace period, we have developed a best practice guide and template advice to ensure you can manage the period to 30 June 2021 compliantly and in line with your employment law obligations. Our Immigration Team are on hand to share these with you.

We can also help to update your internal policies and recruitment documents to ensure they are ready for when the right to work system will change from 1 July 2021 onwards.

Know what EEA nationals are allowed to do as visitors in the UK

 

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.

Need more detailed assistance?

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.

How about UK nationals visiting or working in Europe? Do you need to                   consider the rules that will apply to them?

 

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?

Please contact a member of our Immigration Team to obtain further details on how we can support you.

 

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

Author(s)/Speaker(s): Andrew Osborne, Joanna Hunt, Naomi Hanrahan-Soar, Stephen OFlaherty,

The Brexit implementation period ended at 11pm on 31 December 2020, and with it, free movement of persons in the EU also came to an end. This is despite the fact that the EU-UK Trade & Cooperation Agreement (TCA) was agreed between the UK and the EU on 24 December. Therefore, it is important to understand the new immigration rules that apply to EEA and Swiss nationals wishing to visit or work in Northern Ireland and vice versa.

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Northern Ireland & the Common Travel Area

In considering the position, it is important to bear in mind that the UK, including Northern Ireland, enjoy a unique relationship with Ireland as a result of the Common Travel Area (CTA) arrangements that have existed between the United Kingdom and Ireland since 1922. The CTA is unaffected by Brexit and the TCA, which expressly states that it is without prejudice to any arrangement made between the UK and Ireland concerning the CTA.

Moreover, Article 3 of the Protocol to the TCA states that the UK and Ireland “may continue to make arrangements between themselves relating to the movement of persons between their territories” and that the UK must ensure that the rights and privileges associated with the CTA may continue to apply without affecting Ireland’s obligations under EU law.

Therefore, from 1 January 2021 UK and Irish citizens may continue to travel and work freely within the CTA (UK, Ireland, the Channel Islands and Isle of Man), without the need for immigration permission or the approvals outlined below, which will apply to other EU Member States. However, this does not provide rights with respect to travel within the rest of the EU, only the CTA itself.

Other EU/ Swiss Citizens

For all other employees, a new points-based system applies to businesses wishing to employ EU (and non-EU citizens) from 1 January 2021. This provides for different immigration rules depending on whether the EU national first arrived in the UK before or after 11pm on 31 December 2020. We have outlined below the key issues employers should be aware of.

EU/Swiss nationals residing in the UK before 11pm on 31/12/20

In most cases these individuals will need to apply for settled or pre-settled status under the EU Settlement Scheme (Scheme) to continue to live and work in the UK. The deadline for applications under the Scheme is 30 June 2021. This includes all workers residing in the UK at this date.

Settled status

To be eligible for settled status, a person requires a period of 5 years’ “continuous residence” in the UK. “Continuous residence” means that the individual has been present in the UK for at least six months in each 12 month period. Absence from the UK for more than six months in any 12 month period, will usually break continuity, except in limited circumstances.

Pre-settled status is granted for 5 years and an application for settled status can be made once 5 years’ residence is acquired, or before the pre-settled status expires. For those already residing in the UK, an initial application must be made by 30 June 2021.

Pre-settled status

If an individual has been in the UK for less than 5 years, they should be granted pre-settled status. This is granted for 5 years and, at present, it seems it cannot be extended. If an individual is absent from the UK for a continuous period of more than 2 years, their pre-settled status will lapse.

EU/Swiss nationals who arrive in the UK after 11pm on 31/12/20

EEA/Swiss nationals relocating to the UK after 31 December 2020 must have permission to live and work in the UK. They will not be eligible to apply for settled or pre settled status under the Scheme and will need to apply under the new Immigration Rules. The categories under the new Rules are: –

• Skilled Worker

• Intra-Company Transfer

• T5 Temporary Work: Youth Mobility, Government Authorised Exchange, Sporting & Creative

• Sole Representative

• Global Talent; Start Up & Innovator.

The employer must hold a licence under the relevant category to sponsor a worker. The 2 main types of work visa categories are likely to be ‘Skilled Worker’ visa and ‘Intra-Company’ transfer visa.

Skilled Worker visa

The Skilled Worker visa essentially replaces the previous Tier 2 General visa. This route is available to skilled migrants with a job offer who are sponsored by an employer. Unlike the Tier 2 General visa, applications for a Skilled Worker visa do not require a prior compliant advertisement. The Government has temporarily suspended any cap on the number of such visas that can be granted.

The key requirements of the skilled Worker visa are:

• The level of skill required to perform the role has been reduced from RQF 6 (graduate level) to RQF Level 3 or above (generally A level or equivalent).

• The salary must be £25,600 minimum or the ‘going rate’ for the particular job (whichever is higher). There are exceptions for certain jobs in the NHS or education sector, and in STEM. In these cases, the individual must earn at least £20,480.

• The applicant must meet an English language requirement and a maintenance test.

A Skilled Worker visa lasts up to 5 years. If the individual continues to meet the eligibility requirements, they can apply to extend their visa as many times as they wish. The individual is eligible to apply for Indefinite leave to Remain after 5 continuous years.

Intra-Company Transfer visa

This route is available to skilled migrants who are moving from a role in an international branch/subsidiary of a company abroad to one within the same group in the UK. It is similar to the previous Tier 2 Intra Company Transfer visa.

It is subdivided into the ‘Intra-Company Transfer’ route and ‘Intra-Company Graduate Trainee’ route. As with the Skilled Worker visa, this route requires sponsorship by an employer and has a number of key requirements, including:

• The individual must have worked for a linked entity outside the UK for a minimum of 12 months (3 for Trainees). This does not apply to ‘high earners’ with a gross salary of £73,900+

• The level of skill required for the role must be RQF Level 6 (degree-level) or above.

• The job must meet the ‘going rate’ for the particular job or a minimum of £41,500 (£23,000 for Intra-Company Graduate Trainee), whichever is higher.

• The applicant must also meet a maintenance test. There is no English language requirement.

Individuals who are eligible for the Intra-Company Transfer visa will have the right to remain in the UK for up to 5 years in any 6-year period (or 9 years in any 10-year period if they are a high earner).

Intra-Company Graduate Trainees will have the right to remain in the UK for up to 12 months. This doesn’t give an individual a right to apply for Indefinite Leave to Remain.

Frontier workers Visa

A new Frontier Worker permit has been introduced for EU citizens who are either working or self-employed in the UK by 31 December 2020 but reside in the EEA. These individuals can apply for frontier status by 30 June 2021. To do so, they must:

• be working (either employed or self-employed) before 31 December 2020

• carry out ‘genuine and effective’ work in the UK

• be in the UK for less than 180 days in the last 12-month period or return to their country of residence at least once in the last 6-month period or twice in the last 12-month period.

Individuals who have been working in the UK for 1 year or more but are currently unable to work (for example due to illness, pregnancy /maternity leave etc) can retain frontier worker status for 6 months (longer in certain circumstances). Those, who previously worked in the UK for less than 1 year, retain their status for 6 months.

Between 1 January – 30 June 2021, frontier workers can travel to the UK using their current passport or national ID card (but may need to provide evidence of frontier working upon request). From 10 December 2020 frontier workers need to submit an online application for digital confirmation of their status, which they will need for any travel to the UK after 1 July 2021.

Frontier workers get status for 5 years (2 years if currently are not working but have retained their status). It can be renewed indefinitely but doesn’t lead to permanent residence in the UK.

Business travel

From 1 January 2021, a visa is not required for business visits. However, the Government plans to introduce an electronic travel authorisation (ETA), which will require the completion of an online form and payment of a small fee prior to travel. EEA/Swiss nationals will be required to apply for an ETA once the system is in place, unless an agreement is reached with specific countries to the contrary.

The business visitor visa does not permit ‘work’ only for ‘permissible activities’ such as attending business meetings, conferences, seminars, interviews, giving talks (which are not commercially organised), negotiate and sign deals/contracts; carry out site visits/inspections etc.

A formal invitation letter is required if the person intends to undertake permitted paid engagements in certain circumstances e.g. as an academic, lecturer, lawyer, entertainer, musician or sportsperson.

Comment

Between 1 January 2021 to 30 June 2021, there will be two categories of European nationals working in the Northern Ireland. Those who entered the UK before 31 December 2020, who have the right to live and work here prior to 30 June 2021. There will also be those who entered the UK for the first time after 31 December 2020 who must have immigration permission to live and work here. It is important that an employer knows which category an employee falls into because if they know or have reasonable cause to believe the individual does not have the right to work, they can be subject to criminal prosecution and unlimited fines. Furthermore, failure to properly document an employee’s right to work may incur a fine of up to £20,000, as well as potential revocation of the Sponsors’ Licence. There is a defence if the employer can prove that proper right to work checks were completed prior to commencement of employment. Accordingly, it is all the more important that employers conduct right to work checks on employees commencing employment after 1 January 2021. We also recommend that offer letters and employment contracts make it clear that employment is conditional on having the right to work in Northern Ireland and providing satisfactory evidence of same.

Related Item(s): Northern Ireland, Employment, Immigration & Global Mobility

Author(s)/Speaker(s): Ciara Fulton,

Under the new immigration system launched on 1 December 2020, the Skilled Worker route has replaced Tier 2 (General). Benefits for employers include fewer restrictions on switching into the Skilled Worker visa from within the UK; lowering the skills threshold to RQF Level 3; reduced salary thresholds and removal of the Resident Labour Market Test. We discuss the impact of these changes below, as well as some of the considerations for settlement.

Text:

Switching

Individuals in most immigration categories are allowed to switch into the Skilled Worker route without needing leave the UK and apply for entry clearance from abroad. Employers will be pleased to note that the following immigration categories can now switch into Skilled Worker route in-country:

• Tier 5 Youth Mobility Scheme (now T5 Youth Mobility Scheme)
• Tier 5 Government Authorised Exchange (now T5 Government Authorised Exchange)
• Tier 2 Intra-Company Transfer (now Intra-Company routes)
• Tier 4 General Student (now Student)

In addition, those who currently hold immigration permission under Tier 2 Intra-Company Transfer route are no longer required to spend a year outside the UK before applying under the Skilled Worker route.

These changes significantly reduce the business disruption, administration and costs associated with employees having to return to their home country to apply for a new visa.

There are also a range of immigration concessions currently place due to the COVID-19 pandemic that may assist some individuals who ordinarily would not be allowed to switch to the Skilled Worker route in-country. The concessions are continually revised, so advice should be sought on a case-by-case basis.

No Resident Labour Market Test

A well-received benefit of the Skilled Worker route is the removal of the Resident Labour Market Test. The removal of the requirement to advertise a role for 28 days on two different platforms has been removed by the Home Office. This means that employers do not have to advertise the role in a prescribed method and can offer roles to the candidate who is the most suitable for the role.

Lower skills threshold

The skills threshold for roles eligible for sponsorship under Skilled Worker route has been reduced from RQF level 6 (undergraduate degree-level) to RQF level 3 (A-levels). This means that employers can retain valuable staff who hold posts at lower skill levels. Our initial observations show that employers are keen to use this to sponsor employees across their businesses who didn’t previously meet the skills threshold under Tier 2 General.

Reduced salary threshold

The general salary threshold for occupations eligible to be sponsored for a Skilled Worker visa has been lowered to £25,600 per year provided that the salary also clears the ‘going rate’ for the occupation. The going rate will vary depending on the occupation: for more senior or specialist occupations this can be well above the general £25,600 threshold but for more junior occupations this can in some cases be lower than £25,600. Where the going rate is below the general threshold, the applicant must be paid at least the general threshold amount to be eligible for a Skilled Worker visa.

If an applicant holds a relevant PhD, is a new entrant to the labour market, or if the occupation is on the Shortage Occupation List or is a listed health or education sector occupation, the applicant may be eligible for additional ‘tradeable points’ and a discount on the going rate for their role. Where tradeable points are available, the applicable general salary threshold can also be as low as £20,480. We are happy to talk you through the tradeable points options for Skilled Workers.

One point to note is that normally only guaranteed basic gross pay can be counted towards meeting the salary threshold under the Skilled Worker route. This can be a particular issue for individuals switching from the Intra-Company routes, where allowances often form a significant element of the overall salary package. Their salary packages may need to be restructured before they will qualify.   

No cap on number of Skilled Workers

The Home Office’s previous cap on the number of sponsored workers under Tier 2 (General) has been suspended and does not apply to the Skilled Worker route.

Settlement

Employers of existing Tier 2 (General) migrants should be aware that they will now need to meet the requirements of the Skilled Worker route to be granted settlement (indefinite leave to remain) in the UK.

Amongst other things, applicants must be paid above the applicable Skilled Worker general salary threshold or the going rate for the occupation, whichever is higher. The going rates for all eligible occupations were revised when the Skilled Worker route launched, and for some occupations are higher than the rates that applied under Tier 2 (General).

We would suggest that sponsors consider carrying out a salary audit for all existing Tier 2 (General) migrants to check whether this is above the rate currently required for settlement.      

For more information on the Skilled Worker visa or a discussion about the considerations that apply to your business, please get in touch with a member of the Immigration Team who will be happy to help. If you need more in-depth training for your HR team, our Online Immigration Law Academy will cover implications of the new system for employers and offers practical guidance on being in the best position to work with it. Register here for our academy on 8 & 9 March 2021.

Related Item(s): Immigration & Global Mobility

Author(s)/Speaker(s): Andrew Osborne, Ella Skinner,

Under the new immigration system launched on 1 December 2020, the Skilled Worker route has replaced Tier 2 (General). Benefits for employers include fewer restrictions on switching into the Skilled Worker visa from within the UK; lowering the skills threshold to RQF Level 3; reduced salary thresholds and removal of the Resident Labour Market Test. We discuss the impact of these changes below, as well as some of the considerations for settlement.

Text:

Switching

Individuals in most immigration categories are allowed to switch into the Skilled Worker route without needing leave the UK and apply for entry clearance from abroad. Employers will be pleased to note that the following immigration categories can now switch into Skilled Worker route in-country:

• Tier 5 Youth Mobility Scheme (now T5 Youth Mobility Scheme)
• Tier 5 Government Authorised Exchange (now T5 Government Authorised Exchange)
• Tier 2 Intra-Company Transfer (now Intra-Company routes)
• Tier 4 General Student (now Student)

In addition, those who currently hold immigration permission under Tier 2 Intra-Company Transfer route are no longer required to spend a year outside the UK before applying under the Skilled Worker route.

These changes significantly reduce the business disruption, administration and costs associated with employees having to return to their home country to apply for a new visa.

There are also a range of immigration concessions currently place due to the COVID-19 pandemic that may assist some individuals who ordinarily would not be allowed to switch to the Skilled Worker route in-country. The concessions are continually revised, so advice should be sought on a case-by-case basis.

No Resident Labour Market Test

A well-received benefit of the Skilled Worker route is the removal of the Resident Labour Market Test. The removal of the requirement to advertise a role for 28 days on two different platforms has been removed by the Home Office. This means that employers do not have to advertise the role in a prescribed method and can offer roles to the candidate who is the most suitable for the role.

Lower skills threshold

The skills threshold for roles eligible for sponsorship under Skilled Worker route has been reduced from RQF level 6 (undergraduate degree-level) to RQF level 3 (A-levels). This means that employers can retain valuable staff who hold posts at lower skill levels. Our initial observations show that employers are keen to use this to sponsor employees across their businesses who didn’t previously meet the skills threshold under Tier 2 General.

Reduced salary threshold

The general salary threshold for occupations eligible to be sponsored for a Skilled Worker visa has been lowered to £25,600 per year provided that the salary also clears the ‘going rate’ for the occupation. The going rate will vary depending on the occupation: for more senior or specialist occupations this can be well above the general £25,600 threshold but for more junior occupations this can in some cases be lower than £25,600. Where the going rate is below the general threshold, the applicant must be paid at least the general threshold amount to be eligible for a Skilled Worker visa.

If an applicant holds a relevant PhD, is a new entrant to the labour market, or if the occupation is on the Shortage Occupation List or is a listed health or education sector occupation, the applicant may be eligible for additional ‘tradeable points’ and a discount on the going rate for their role. Where tradeable points are available, the applicable general salary threshold can also be as low as £20,480. We are happy to talk you through the tradeable points options for Skilled Workers.

One point to note is that normally only guaranteed basic gross pay can be counted towards meeting the salary threshold under the Skilled Worker route. This can be a particular issue for individuals switching from the Intra-Company routes, where allowances often form a significant element of the overall salary package. Their salary packages may need to be restructured before they will qualify.   

No cap on number of Skilled Workers

The Home Office’s previous cap on the number of sponsored workers under Tier 2 (General) has been suspended and does not apply to the Skilled Worker route.

Settlement

Employers of existing Tier 2 (General) migrants should be aware that they will now need to meet the requirements of the Skilled Worker route to be granted settlement (indefinite leave to remain) in the UK.

Amongst other things, applicants must be paid above the applicable Skilled Worker general salary threshold or the going rate for the occupation, whichever is higher. The going rates for all eligible occupations were revised when the Skilled Worker route launched, and for some occupations are higher than the rates that applied under Tier 2 (General).

We would suggest that sponsors consider carrying out a salary audit for all existing Tier 2 (General) migrants to check whether this is above the rate currently required for settlement.      

For more information on the Skilled Worker visa or a discussion about the considerations that apply to your business, please get in touch with a member of the Immigration Team who will be happy to help. If you need more in-depth training for your HR team, our Online Immigration Law Academy will cover implications of the new system for employers and offers practical guidance on being in the best position to work with it. Register here for our academy on 8 & 9 March 2021.

Related Item(s): Immigration & Global Mobility

Author(s)/Speaker(s): Andrew Osborne, Ella Skinner,