Brexit and employing non-UK citizens – What you need to know

published on 23 November 2020 | reading time approx. 5 minutes

The current situation: EU citizens and the EU Settlement Scheme

The rights and status of EU, EEA and Swiss citizens¹ living and working in the UK will remain the same until 30 June 2021. (Non-EU citizens are currently subject to the existing points based system which is due to change with effect from 1 January 2021 – see below).

EU citizens who successfully apply to the EU Settlement Scheme by 30 June 2021 will able to continue living and working in the UK after 30 June 2021. Depending on how long they have been living in the UK when they apply to the scheme, they will be given either:

settled status
pre-settled status

Settled status

Settled status will usually be grated if the individual:

started living in the UK by 31 December 2020
lived in the UK for a continuous five-year period (known as 'continuous residence')

Five years' continuous residence means that for five years in a row they have been in the UK, the Channel Islands or the Isle of Man² for at least six months in any 12 month period.

The exceptions are:

one period of absence abroad of up to 12 months for an important reason (for example, childbirth, serious illness, study, vocational training or an overseas work posting)
compulsory military service abroad of any length
time spent abroad as a Crown servant, or as the family member of a Crown servant
time spent abroad in the armed forces, or as the family member of someone in the armed forces

An individual can spend up to five years in a row outside the UK without losing their settled status, but,

If the individual is a Swiss citizen, they may only spend up to four years in a row outside the UK without losing their settled status.

Pre-settled status

If an individual does not have five years' continuous residence when they apply, they will usually get pre-settled status. They must have started living in the UK by 31 December 2020. The individual can then apply to change this to settled status once they have five years' continuous residence. They must do this before their pre-settled status expires.

If the individual reaches five years' continuous residence at some point by 31 December 2020, they can choose to wait to apply to the settlement scheme once they have reached five years' continuous residence. This means that if the application is successful, they will get settled status without having to apply for pre-settled status first.

The individual can stay in the UK for a further five years from the date they get pre-settled status.

If an individual has pre-settled status, they can spend up to two years in a row outside the UK without losing their status but they will need to maintain continuous residence if they want to qualify for settled status.

The application process

Individuals will need proof of:

identity (either a valid passport or national identity card. Other evidence can be used in certain situations. A digital photo of the face must also be provided);
residence in the UK. A National Insurance number can be provided to allow an automated check of a residence based on tax and certain benefit records. If this check is successful, no further documents will be required as proof. Further documents will only be needed if the individual has been here for five years in a row but there is not enough data to confirm this.

Documents can be provided either by:

Scanning the document and uploading the photo using the 'EU Exit: ID Document Check' app using an Android phone, or an iPhone 7 or above; or

Sending the document in the post and uploading the photo using the online application.

1 January 2021 onwards: Sponsorship Licences and the new Points Based System

The UK's post-Brexit immigration system is due to come into effect on 1^st January 2021 and will apply to EU citizens who were not living in the UK on or before 31 December 2020, as well as to non-EU candidates.

UK Visa Sponsorship

If a business (be it a UK limited company as a parent or subsidiary of a German company, a UK branch of a German company or even a foreign legal form with a presence in the UK) wants to recruit workers from outside the UK's resident labour market from 1 January 2021 and is not already a Home Office licensed sponsor, it should apply to become one now.

Sponsoring someone does not guarantee that they will be allowed to enter or stay in the UK; the applicant (employee) will have to apply for a visa for themselves – see below.

Sponsorship Licences

There are various different types of sponsorship licenses that can be applied for. the two most common. The two most common are the Skilled Migrant Worker and the Intra-Company Transfer visa routes for applicants.

Skilled Migrant Worker visa route. In order to sponsor a candidate (EU or non-EU) under this route, businesses will need to have an offer in place for the applicant. The job must meet the suitability requirements, i.e., an appropriate skill level and be compliant with the salary thresholds (see below);

Tier 2 (Intra-Company Transfer (ICT). This route applies for businesses that want to transfer staff from overseas entities into the UK. The Home Office will need to see sufficient proof that the two entities are linked. This can be done by showing common ownership and/or common control.

Becoming a Licensed Sponsor

Businesses will need to:

1. Check the business is eligible

To get a licence, key personnel of a business or those involved in its day to day running cannot have unspent criminal convictions for immigration offences or certain other crimes, such as fraud or money laundering.

2. Choose the type of skilled worker licence it wants to apply for

This will depend on whether the business wants to sponsor a job applicant for general purposes, or for the purpose of an ICT. It can apply for a licence covering either or both.

3. Decide who will manage sponsorship within the business

The business needs to appoint people to manage the sponsorship process. The main tool they'll use is the sponsorship management system (SMS).

The roles are:

Authorising Officer – a senior and competent person responsible for the actions of staff and representatives who use the SMS
Key Contact – the business' main point of contact with UK Visas and Immigration (UKVI)
Level 1 User – responsible for all day-to-day management of your licence using the SMS. These roles can be filled by the same person or different people.

4. Apply online and pay a fee

An online application must be submitted to the Home Office. The application requires the business to fill in the company information, pay a fee that is determined by the size of the company and send key documentation to the Home Office.

Points-Based/Skilled Worker system

The points based or skilled worker system is the new system under which visas will be awarded to those coming to the UK for work. Individuals must meet a specific set of requirements for which they will score points so business wanting to employ them must give them due consideration when creating a role. Visas are then awarded to those who gain enough points.

Under the new system, anyone coming to the UK to work will need to demonstrate that:

they have a job offer from a Home Office licensed sponsor

the job offer is at the required skill level – RQF 3 or above (equivalent to A Level in the UK and Abitur in Germany); and
they speak English to the required standard. This needs to be evidenced by the passing of an English language test, which assesses an individual's reading, writing, speaking and listening abilities, as issued by an approved provider.

In addition to this, the job offer must meet the applicable minimum salary threshold. This is the higher of either:

the general salary threshold set by Her Majesty's Government on advice of the independent Migration Advisory Committee at £25,600; or

the specific salary requirement for their occupation, known as the "going rate".

All applicants will be able to trade characteristics, such as their qualifications, against a lower salary to get the required number of points. If the job offer is less than the minimum salary requirement, but no less than £20,480, an applicant may still be eligible if they have:

a job offer in a specific shortage occupation

a PhD relevant to the job
a PhD in a STEM (science, technology, engineering or maths) subject relevant to the job.

There are different salary rules for workers in certain health or education jobs, and for "new entrants" at the start of their careers. A total of 70 points is needed to be able to apply to work in the UK

How we can help:

Advising on applications to the EU Settlement Scheme and any documentary evidence required

Determining the type of sponsorship licence a business requires when looking to recruit EU and non-EU candidates from 1 January 2021.
Drafting the application for a sponsorship licence
Collating all the supporting documents that will need to provided as evidence for a licence
Drafting a covering letter with all the additional information that will need to be provided
Assisting prospective EU and non-EU candidates with the visa application process

¹ All further references to "EU citizens" throughout this document will also apply to citizens of the EEA and Switzerland.

² All further references to "the UK" will also include the Channel Islands and the Isle of Man.