Hiring EU nationals in the UK under the new points-based system
Starting in 2021, there will be a significant shift in the dynamics of travel between the United Kingdom and European Union member states. A fresh points-based immigration system is set to be implemented in the UK. Under this revised framework, all individuals who are not citizens of the UK, whether they originate from an EU or non-EU nation, will be obligated to seek permission in order to relocate and work in the UK.
These updated immigration regulations will be enforced for foreign nationals entering the UK starting from the 1st of January 2021. Consequently, individuals planning to work in the UK beyond this date, with the exception of Irish citizens, will be required to submit a visa application in advance and cover the associated fees.
From 2021 onward, employers looking to hire workers from the European Union (EU) will be required to obtain a sponsor licence from the Home Office.
If you are already a licensed sponsor under the Tier 2 visa program, your organization will automatically receive a skilled worker licence under the new system, as will those with intracompany transfer licences. The expiration date of your existing licence will remain consistent. You won’t need to take any action in 2021 to continue sponsoring skilled workers, as long as you maintain compliance with the management responsibilities outlined in your licence.
For employers currently employing EU nationals in the UK who are residing in the country by December 31, 2020, they will not be subjected to the new regulations as long as they apply for EU settled or pre-settled status through the EU Settlement Scheme. The deadline to secure their legal status under this scheme is June 30, 2021.
You will not need a sponsor licence to hire EU workers who are UK residents and already possess the right to work in the country.
EU workers already in the UK by 31 December 2020
The immigration status of EU citizens and their family members who were already residing in the UK by 11 pm on December 31, 2020, will remain unchanged, as long as they complete the registration for EU settled status by June 30, 2021. This application process is cost-free and allows them to maintain their legal status, permitting them to live and work in the UK starting from July 1, 2021.
EU workers arriving in the UK from 1 January 2021
Individuals who are not UK residents and intend to work in the UK after January 1, 2021, which includes EU nationals (with the exception of Irish citizens), will be required to obtain prior permission from UK Visas and Immigration (UKVI). For those planning to commence employment in the UK after this date, they must initiate the process of applying for a points-based work visa through UKVI.
Right to work checks & EU workers
Under the EU Settlement Scheme, individuals who were residing in the UK by December 31, 2020, have the opportunity to apply until the deadline of June 30, 2021. Additionally, the Home Office has established a ‘grace period’ extending until June 30, 2021, during which employers can continue verifying the right to work of their EU employees by simply checking their passport or national ID card.
Consequently, during this period, employers will not be expected to distinguish between EU citizens who are eligible under the EU Settlement Scheme but have not yet obtained settled or pre-settled status, and EU citizens who require a visa under the new points-based immigration system.
Furthermore, the Home Office’s guidance emphasizes the obligation of employers not to discriminate against EU, EEA, or Swiss citizens. As a result, you are not allowed to request proof of EU settled or pre-settled status from potential EU employees until after June 30, 2021.
Right to work checks on existing EU employees
In accordance with Home Office guidelines, there is presently no obligation to conduct retrospective checks or subsequent verifications after June 30, 2021, for EU employees who were already engaged in employment on or before December 31, 2020. It’s worth noting that this policy remains in place, even though a number of EU citizens who were employed before the conclusion of the Brexit transition period may not have applied in a timely manner for permission to remain under the EU Settlement Scheme, or may have only been granted pre-settled status, which provides them with time-limited authorization to work in the UK.
Complications can also arise in cases where an EU citizen, who was employed between December 31, 2020, and June 30, 2021, arrived in the UK after December 31, 2020, and therefore, was not eligible to apply under the EU Settlement Scheme. In such instances, the EU employee should possess a valid UK visa.
As a result, employers may encounter significant challenges when attempting to determine an individual’s ongoing right to work based solely on a previous check of their passport or national ID card. In certain situations, an employer might even become aware of, or have reasonable grounds to suspect, that an EU employee never had the right to work in the UK or has subsequently lost it, yet erroneously relies on the grace period currently offered by the Home Office.
Considering the potential risks that UK employers face under the illegal working prevention regulations, there is an expectation that the Home Office will provide additional guidance in the near future to address these concerns.
Right to work checks on EU employees after 30 June 2021
Starting from July 1, 2021, the rules regarding employment in the UK for EU citizens, except for Irish citizens who retain their existing work rights, will undergo changes. To employ an EU citizen after this date, prospective employers will need to adhere to the new regulations, which involve conducting manual or online right-to-work checks.
Consequently, employers will be required to verify the individual’s status under the EU Settlement Scheme or the possession of a suitable work-based visa under the points-based system. For the recruitment of skilled EU workers arriving in the UK from January 1, 2021, a sponsor licence will be necessary. Approved sponsors of skilled workers will need to issue a certificate of sponsorship to visa applicants, affirming their genuine job offer from a licensed UK employer, enabling them to proceed with their visa application.
Nonetheless, before the commencement of employment, it remains essential to perform a right-to-work check to confirm the presence of a valid visa. These checks must also be conducted when an employee possesses a visa that grants them the right to work in the UK without a licensed sponsor.
In cases where a right-to-work check reveals a time limit on an EU employee’s eligibility to work in the UK, a follow-up check should be carried out before the expiration date. This applies, for instance, to individuals with pre-settled status under the EU Settlement Scheme or those granted limited leave to remain under the points-based system.
Immigration compliance advice for employers
To effectively manage your workforce, we suggest the following steps:
- Identify the count of EU nationals within your payroll. It’s advisable to conduct an internal audit and categorize your employees into three groups: British Citizens and those with Indefinite Leave to Remain (ILR), EU Nationals, and List B (visa holders).
- Gather information on each employee’s length of service, period of residence in the UK, and the date when they joined your organization.
- Review the right-to-work checks for EEA workers and ensure that all retained document copies comply with the necessary format.
- Verify whether your EEA workers have applied for pre-settled or settled status. As per current government guidance, employers are not required to perform retrospective checks on existing EU employees. The responsibility for making an application to the EU Settlement Scheme lies with the individual, and there is no obligation for the individual to inform the employer about their application or its outcome. Similarly, employers should refrain from checking whether an employee has applied to avoid discriminating against EU nationals based on their status. It’s recommended that employers communicate information about the EU Settlement Scheme to their employees, directing them to government resources like the Home Office’s employer toolkit, which provides materials to support EU citizens in applying to remain in the UK.
How to conduct the Right to Work check
To verify that a job applicant is eligible to work in the UK, you have three options for conducting right to work checks: performing a manual examination of their original documents, utilizing the online Right to Work Checking Service, or employing the Employer Checking Service.
Manual Right to Work checks
There are three basic steps to conducting a manual right to work check:
- Request the applicant to present their original documents.
- Validate the documents’ authenticity with the applicant in attendance (*).
- Create and keep copies of the documents, while also noting the date when the check was conducted.
When conducting a manual right to work check, you will need to ensure that:
- Confirm the documents’ authenticity, ensuring they are genuine, original, and unaltered.
- Verify that the documents correspond to the person who submitted them.
- Compare the photos on all documents to the applicant’s appearance.
- If different names appear on two documents, ensure the applicant provides supporting documentation, such as a marriage certificate or divorce decree, explaining the variation.
- Confirm that the dates of birth are consistent across all documents.
- Check that the applicant’s right to work in the UK has not expired.
- Ensure the applicant possesses the necessary permissions for the type of work you’re offering, taking into account any limitations on working hours.
- For students, request evidence of their study and vacation schedules.
When duplicating the documents, it is imperative that you create clear, unalterable copies of each document. You should retain these copies throughout the duration of the individual’s employment and for an additional two-year period after their employment ceases.
Please refer to our Right to Work guide for information on checks and required documents.
Due to the impact of the coronavirus pandemic, temporary modifications have been made to the procedure for conducting manual right to work checks. Under the revised manual process, you are required to request that applicants send their right to work documents digitally, and subsequently, verify these digital copies during a video call against the original documents.
Online Right to Work Checking Service
When a job applicant utilizes the online Right to Work Checking Service, it will produce a share code. Subsequently, you should employ the employers’ online service to verify their right to work by inputting this share code on the government’s website.
Conducting an online right to work check involves three fundamental steps:
- To access an individual’s right to work information, input the share code along with their date of birth.
- Verify that the photograph displayed in the online right to work check corresponds to the person presenting themselves for work.
- Maintain a distinct copy of the response furnished by the service throughout the individual’s employment and for an additional two years afterward.
The online Right to Work Checking Service streamlines the verification process for employers, enhancing security compared to manual checks. It eliminates the reliance on physical documents, thereby reducing the risk of encountering counterfeit documents.
EU citizens residing in the UK prior to June 30, 2021, have the option to utilize the online Right to Work Checking Service, although they cannot be compelled to do so. As part of the EU Settlement Scheme, EU citizens do not receive a physical document as confirmation of their status; instead, their status is stored digitally. Consequently, if an individual possesses status under the scheme after June 30, 2021, you must conduct their check electronically. Refusing an individual’s application based on their inability to provide physical proof of their immigration status is not permissible.
Employer Checking Service
In the majority of situations, you have the flexibility to perform either a manual or online check. Nonetheless, under exceptional circumstances, the Employer Checking Service offers employers the option to verify an individual’s right to work with the Home Office by filling out an online application form, provided they have the individual’s consent.
These exceptional circumstances encompass:
- The individual is unable to present their documents due to a pending appeal, review, or application with the Home Office.
- The individual possesses an Application Registration Card.
- The individual holds a Certificate of Application that is less than six months old.
- The employee is a Commonwealth citizen who established residency in the UK before 1988.
When seeking a verification check, along with furnishing your business details, it’s essential to submit the individual’s personal information, job title, weekly work hours, and any Home Office reference number or case ID, if applicable. Please ensure that you inspect their original Application Registration Card or Certificate of Application if that’s the document you’re verifying.
You can anticipate receiving a Verification Notice within five business days. This notice will indicate either a positive confirmation or a negative determination regarding the individual’s eligibility to work in the UK.
Penalties for non-compliance
The potential for migrants to engage in unauthorized employment exposes them to exploitation and enables unscrupulous employers to undercut law-abiding businesses in the UK. To mitigate these risks, all UK employers bear the responsibility of preventing illegal employment by conducting prescribed right-to-work checks. Consequently, the repercussions of non-compliance can be gravely consequential.
In cases where an employer is discovered to have hired an individual who is barred from working in the UK due to their immigration status, or for the specific role in question, they may face a civil penalty of up to £20,000 per unauthorized worker. However, if a proper right-to-work check has been conducted, the employer can establish a statutory defense against civil liability if the individual is subsequently found to be working unlawfully.
On the contrary, if an employer knowingly employs someone without the right to work in the UK or has reasonable cause to suspect such a situation but proceeds with the employment, they will not have a statutory defense against civil penalty liability, even if a right-to-work check has been performed. Furthermore, they open themselves up to the possibility of criminal prosecution, which could lead to imprisonment for up to five years and an unlimited fine.
As an additional caution, it’s essential to note that non-compliance with right-to-work checks can result in sanctions that may include downgrading, suspension, or revocation of your sponsor license. This can significantly impact your ability to sponsor both EU and non-EU migrants coming to the UK in the future. Moreover, the removal of unauthorized workers may disrupt your daily operations and inflict substantial harm on your business reputation.
Hiring EU workers from January 2021
As of January 1, 2021, European Union (EU) citizens seeking employment in the UK must undergo a process of obtaining a UK visa. In the majority of instances, these visas will fall under the framework of the points-based immigration system.
The primary avenues for securing a work visa are the skilled worker route and the intracompany transfer route. Both of these pathways necessitate sponsorship from a licensed employer.
Skilled worker visa route
EU-based skilled migrants aiming to work in the UK must accrue a minimum of 70 points to qualify for the Skilled Worker visa. The subsequent criteria outline the prerequisites for the skilled worker visa applicants:
- Possession of a bona fide job offer from a UK licensed sponsor operating under the points-based system.
- Demonstrated proficiency in English at the stipulated standard.
- The prospective position for which they are being recruited must meet the minimum skill level of RQF3 (equivalent to A-level) or higher, which is a less stringent requirement compared to the previous Tier 2 visa route.
- A guaranteed minimum salary of £25,600 or the prevailing rate for the job offer, whichever is the greater amount.
In certain scenarios, even if the offered job’s salary falls below the standard or specified requirement, applicants may still meet the eligibility criteria by offsetting attributes against a lower income to achieve the necessary points. For instance, if the job offer’s salary is below the minimum threshold, eligibility may still be possible if the applicant holds a relevant PhD or the job is categorized as a shortage occupation.
The flexibility of trading specific attributes for points is applicable when the job offers a salary of no less than £20,480. However, there are distinct salary regulations for individuals in certain health or education roles, as well as for those who are embarking on their careers as new entrants.
Individuals who are relocating to the UK as part of a non-UK company’s operations should utilize the Intra-Company Transfer route for their visa application. To meet the eligibility criteria, an applicant must be an incumbent employee tasked with responsibilities that align with the appropriate skill and salary benchmarks. In this context, they will be required to showcase the following:
- They possess a 12-month track record of working for a foreign company connected to the UK-based business through ownership.
- The role they are taking up aligns with the mandatory skill level of RQF6 or higher, equivalent to graduate-level proficiency.
- They will receive a compensation of no less than £41,500 or the prevailing job rate, whichever of the two is greater.
In the case where an applicant is slated to receive a salary exceeding £73,900, the 12-month overseas work requirement is waived. Additionally, an employee can potentially qualify for the Intra-Company Graduate Trainee route if they are being transferred to the UK as part of a structured graduate training program lasting up to one year. Specific regulations governing the length of overseas experience and salary apply in such instances.
Applying for a sponsor licence to employ EU nationals in the UK
If your organization does not already possess a sponsorship license and you intend to hire EU nationals in the UK through sponsorship routes starting in January 2021, it is imperative to initiate the license application process promptly.
To secure a sponsorship license, the first steps include confirming your organization’s eligibility, selecting the appropriate license type to align with your recruitment needs, designating the individual responsible for ongoing license management, and completing the online application while meeting the corresponding fee requirements.
The specific application fee varies based on the type of license sought and the size of your organization. For instance, a small business seeking a skilled worker license will incur a fee of £536, whereas a medium or large business applying for a skilled worker license will face a fee of £1,476.
In addition to the application fee, employers must also remit the Immigration Skills Charge for each skilled migrant worker engaged through the skilled worker and intra-company transfer routes, which now encompass EU migrant workers starting from January 1, 2021. This charge entails a payment of £1,000 for each skilled worker during the initial 12 months, followed by an additional £500 for each subsequent 6-month period. It’s worth noting that discounted rates of £364 and £182, respectively, are available for charities and small businesses.
For classification as a small business, organizations typically have an annual turnover of £10.2 million or less or up to 50 employees.
The standard processing time for a license application is approximately eight weeks. Expedited processing, available for an additional fee of £500 through the premium service, results in a decision within 10 working days.
Upon a successful license application, you will receive an ‘A’ rated sponsorship license, valid for a duration of 4 years, contingent upon adherence to your sponsorship duties. During this license validity period, you will have the authority to allocate Certificates of Sponsorship (CoS) to each foreign national you intend to sponsor, incurring a fee of £199 per migrant worker for each issued CoS.