Soon after Britain’s initial vote to leave the European Union, then-prime minister Theresa May proclaimed, “Brexit means Brexit and we’re going to make a success of it.” At the time, her government was optimistic that they would hit their target March 2019 exit deadline, negotiate a favorable trade deal with the EU and find a solution for Northern Ireland’s border with the Republic of Ireland. Several years later, and reality looks a lot different than how it was envisioned. Brexit has been a chaotic and often messy process, which means businesses are going to need a lot of guidance from their counsel — especially when it comes to who can and cannot come to Britain to work. We’ll cover some of the details of the most recent immigration guidance and the tangible advice you can provide your clients to help them plan for the future and help you not feel so overwhelmed around Brexit immigration uncertainty
What happens to EU nationals?
After 31 December, 2020, EU and non-EU citizens will be treated equally, with the exception of Irish nationals. As a method of ameliorating the many challenges posed by the border between Northern and Southern Ireland, Irish citizens can live and work in the UK as they currently do.
EU nationals that want to stay in the UK after the end of 2020 have two major paths open to them:
- Apply for pre-settled status
- Apply for settled status
Those who have had permanent residency in the UK for five years or more by 31 December, 2020, are eligible for settled status. Otherwise, residents will need to apply for pre-settled status, which allows EU nationals to stay in the UK until they’ve reached the five-year mark, at which point they can apply for settled status.
For companies with EU nationals as key employees, understanding and being proactive about signing up for this settlement scheme will be important. But more impactful are the changes that have been made to the Skilled Worker route, which replaces the general Tier 2 visa route.
Good news and bad news for employers
First, the good news: There will no longer be an immigration cap on the number of skilled workers permitted into the UK. Furthermore, UK businesses are no longer subjected to the advertising requirement. Where employers previously had to advertise any open positions to UK residents for four weeks before sponsoring a skilled worker, now they can immediately look for employees from outside of the UK. The government has stated that it expects employers to only hire foreign skilled workers if no UK citizen is available to fill the position, but there does not appear to be a method for tracking or enforcing this.
This change should make it significantly easier for businesses to hire migrant workers. To make it even easier, the UK government has reduced the minimum skill level a migrant must meet in order to qualify for a Skilled Worker visa. Before 31 December 2020, migrants had to meet Regulated Qualification Framework (RQF) level 6 — i.e., a bachelor’s degree. After December, they can apply for a Skilled Worker visa with just an RQF level 3, the equivalent of an A level.
Finally, workers who have transferred from a non-UK branch of their company to a UK-based branch will be able to easily switch from their Intra-Company Transfer (ICT) visa to a Skilled Worker visa. Previously, ICT workers were forced to exit the country, wait 12 months and then re-apply for a Skilled Worker visa.
The bad news? Even though the minimum skill level has been reduced, minimum salaries have not. Any Skilled Worker role must pay at least £25,600, with two exceptions. The UK uses a points-based system for visa eligibility. Offering a worker a lower salary takes several points away, rendering them ineligible for the Skilled Worker visa unless the role is on the Shortage Occupation list or the migrant has a PhD. In this case, the minimum salary would be £20,480.
Unfortunately, few workers will meet this criteria. And given that the UK’s immigration framework does not offer a visa route for lower-skilled workers with less than an RQF level 3, many employers are going to struggle to find employees. Employers in construction, manufacturing, hospitality and other traditionally low-skilled industries will need to either raise their salaries or find enough UK citizens willing to work in these lower-paying jobs.
Advice you can give your clients
1. Apply for a sponsor license now, or review your current license
If an employer already has a sponsor license, they need to ensure that all of their non-UK offices are approved as linked entities on the license. This will ensure any ICT migrants they employ can transfer to a Skilled Worker visa. For any migrants with an existing Skilled Worker visa, the sponsor will want to ensure their documentation is up to date and audit-ready for the new changes.
If an employer doesn’t have a sponsor license, they’ll want to apply for one now. Before they receive their sponsor license, employers should be prepared for the record-keeping and monitoring responsibilities associated with employing migrant workers.
2. Establish a compliance training program
Like everything else related to Brexit, immigration and employment are complicated and high-stakes subjects. Being out of compliance could result in steep penalties for your clients and will significantly impact their business. Advising them to establish a compliance training program to ensure their payroll, human resource department and other relevant stakeholders adhere to all regulations will be key.
3. Plan for capacity constraints
It’s important for employers to forecast their likely immigration needs ahead of time to ensure that they’re not understaffed in the future. Depending on their unique needs, your client may be facing a significant challenge establishing efficient immigration processes. It will be essential to identify a partner you can use to scale your team before Brexit immigration uncertainty applies added pressure to your clients’ immigration processes, especially if they’re in a high-volume industry.
If you’re feeling overwhelmed around Brexit immigration uncertainty, we can help. Exigent’s team of over 120 immigration legal professionals regularly assist law firms meet heightened demand. Learn more about our services and how we can help you and your clients thrive under the post-Brexit immigration uncertainty landscape.