Immigration developments post-Brexit and COVID-19 restrictions


8th January 2021

We look at the immigration developments post-Brexit and with COVID-19 restrictions - all you need to know for 2021 and moving forward.

Right to Work checks

As expected, free movement ended on 31 December 2020. However, European Economic Area (EEA) and Swiss nationals can continue to use their passport or national ID card for the right to work checks purposes until 30 June 2021.

By way of reminder, employers are currently able to undertake right to work checks in the following ways. It is important to remember that employers are not allowed to mandate the use of any particular method as both are equally valid:

  • Manual check – a long standing method requiring an employer to check employees’ original documents in their presence and making a suitable record for the file
  • Online check – this method is available to the holders of:
    • Biometric residence permit
    • Biometric residence card
    • Status under the EU Settlement Scheme

The long awaited update to the Employer’s Guide to Right to Work Checks was published in December 2020. Although, there are no major surprises, formal guidance on how to check the right to work of EEA nationals after the transition period has been welcome.

The updated guidance confirms that there is no obligation to carry out retrospective checks on EEA or Swiss nationals employed prior to the 30 June cut-off date. Nevertheless, it is worth double-checking the guidance again closer to that date in case there are further updates.

COVID-19

As many employers may be aware, due to COVID-19 restrictions temporary concessions were introduced to the way right to work checks can be carried out. In line with the concessions, checking copies of documents against the original over a video call with the document holder is currently permitted.

As always, it is extremely important to carry out checks in line with the instructions (these can be found on the Home Office website) as only a fully compliant check will assist in establishing a statutory excuse should it transpire that the employee did not have the right to work after all.

Lastly, it is essential to remember these measures are only temporary; all employees’ right to work checks carried out in this manner will need to be re-done within eight weeks of COVID-19 measures ending. Therefore, it is very important to keep an eye on the Home Office website to note the end of concessions.

Brexit update: end of free movement

EEA nationals can continue to visit the UK for holidays without the need to apply for a visa in advance. However, any other activities may require careful assessment. Even if a prior visa application was not required, EEA nationals must abide by the Visitors Rules during their stay in the UK. Most notably, the Immigration Rules do not allow visitors to work unless special prior permission is obtained.

EEA nationals can continue using their national ID cards until 30 September 2021 with some exceptions (such as holders of the EU Settlement Scheme status amongst few others) beyond that date.

UK nationals travelling to the EU will need to abide by the domestic immigration rules of the destination country. In most cases, there is no need to apply for prior permission if the trip is for tourism purposes.

EU Settlement Scheme

The deadline for applications under the EU Settlement Scheme is 30 June 2021 for those EEA nationals who arrived in the UK prior to or on 31 December 2020.

EEA nationals who arrive in the UK on or after 1 January 2021 and have no prior eligible residence in the UK are not entitled to apply under the EU Settlement Scheme, save for limited exceptions such as being able to rely on a family relationship to the EU Settlement Status eligible applicant or holder. In order to obtain permission to work, those individuals will need to make an application under the new immigration system that came into force towards the end of 2020.

The Scheme will remain open beyond 30 June 2021 to accept applications from those eligible such as family members.  

New Immigration System: Skilled Worker

The most common route to gain working permission is the Skilled Worker category. In order to qualify for this visa, an individual must meet a number of criteria, such as:

  • Having a job offer from the Home Office approved sponsor;
  • The job being at the sufficient skill level as prescribed by the Home Office;
  • The salary on offer meeting the Home Office set thresholds;
  • Meeting the required English language knowledge.

It is worth highlighting the new Health and Care visa, which falls under the Skilled Worker route, but awards some additional concessions to eligible applicants. More information can be found in our visa article here.

In most cases, the minimum salary threshold is £25,600 per year. However, there may be circumstances where the applicant will be required to earn significantly more depending on the going rate for a given job type. The applicant may also be paid less in some circumstances, such as a job being listed on the Home Office shortage occupation list.

Additionally, it is worth mentioning that some applicants may be required to show savings to support themselves for the first month’s stay in the UK, unless they are applying from within the UK and have already been in the UK with permission for at least 12 months or their sponsor certifies maintenance for them.

Lastly, individuals applying to come to the UK to undertake certain jobs such as nurses, amongst others, may also be required to provide a criminal record certificate from any country where they have been present for 12 months or more, whilst 18 years old or over, in the 10 years preceding the visa application.

New Immigration System: other categories

As mentioned above, Skilled Worker visa, which replaced Tier 2 General category, is the most common route allowing work in the UK. There are, however, many other categories (some new, some old and some which have been re-designed) that an individual may consider, such as:

  • Start-up and Innovator visas which are aimed at applicants wanting to start a business in the UK;
  • Global Talent visa aimed at leaders or potential leaders in fields such as academia or research; arts and culture; and digital technology;
  • Investor visa for those who have access to £2m in investment funds;
  • Ancestry visa for Commonwealth citizens whose grandparent was born in the UK;
  • Temporary visas such as Youth mobility, Government Authorised Exchange visa (T5) or Intra-company transfers;
  • Post-graduate route return has been confirmed (expected this summer); this category is aimed at students who want to remain in the UK after completion of their studies

For more information on the new points based immigration system, please read our article on this.

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