November 2nd, 2017 | Sterling

What Employers Need to Know About Brexit, Immigration and Hiring Foreign-Born Workers

The world is getting smaller as employers continue to search far and wide for their pool of talent. Businesses need to make sure they’re ready for whatever changes are on the horizon and how this might affect their future workforce. According to Fragomen,  “Until June 2016, employers only needed to answer two simple questions with respect to the UK immigration policy: do prospective or current employees have the right to work in the UK and, if not, can they secure that right? The UK’s EU referendum and subsequent government policy positions changed all of this. A person’s right to work is still absolutely crucial, but the prospect of free movement coming to an end has added new considerations.”

Sterling recently hosted a webinar entitled “Employment Law for HR: Brexit, Immigration and Hiring Foreign-Born Worker.” Ian Robinson and Tom Marsom, both from Fragomen, a leading international law firm with particular expertise on immigration, shared what employers need to know about the current immigration framework, how it works, how it’s designed to ensure companies only employ those legally allowed to work in the UK and how Brexit will impact this structure.

Understanding the Current Immigration Framework

 Understanding the current immigration framework is an important part of helping to ensure organisations are better placed to hire ‘legal’ workers. There are three migrant groups in the UK:

• British and EEA Nationals – This group has unrestricted right to work in the UK. They can visit and work freely in the UK without a visa. Germany, France and Spain are examples.
• Non-EEA, Non-Visa Nationals – These migrants have restricted right to work. They can visit the UK freely without a visa, but they are required to have a work visa. Examples of the countries under this migrant group are Canada, U.S., Australia and New Zealand.
• Non-EEA, Via Nationals – This group is restricted to work in the UK. A visa is required to travel to and work in the UK. Examples of the countries would be India, China and South Africa.

British Visa Types

There are two different types of visas and different allowances that come with each. The visitors/visit visa holders allow users to stay in the UK for up to 180 days. Visiting workers can attend meetings and advise and consult with colleagues in the UK who are part of the same company. However, they do not reside in the UK, are taking paid employment and cannot switch into a work permit while they are within the UK. Work Permit Holders can stay in the UK until the expiry of their visa and can work subject to the conditions of their work permit. Those with work permits can make the UK their home.

Tiered UK Migrant System

The UK has a Five-Tier system to describe visa types. Each has different requirements that must be met:

• Tier 1: High-Value Migrants
• Tier 2: Skilled Migrants
• Tier 3: Low-Skilled Migrants
• Tier 4: Students
• Tier 5: Temporary Workers and Cultural Pursuits

There are also alternative routes for applying for a visa including having a spouse or unmarried partner of a person present and settled in the UK, Commonwealth citizens with a grandparent born in the UK or Croatians managed through the PBS (Point-based Immigration System).

Skilled migrants who are part of Tier 2 have special considerations. There are two different types of visas under Tier 2: Inter-Company Transfer (ICT) or General. The Inter-Company Transfer is for workers on a temporary assignment. These migrant workers do not settle in the UK permanently. They can work in the UK for up to six years, but must have worked for their current UK-based company for at least 12 months. There is no language requirement for these workers. The General Tier 2 Visa holders can settle in the UK after five years. Their visas last six years with a 28-day Resident Labour Market Test (RLMT). There is an English language requirement for Tier 2 General visa recipients.

How Brexit May Impact Immigration

Brexit will have an impact on immigration in the UK. The changes to the immigration policies will be forthcoming. Companies will have many things to consider if they hire foreign-born workers during this time of uncertainty to prepare for the Brexit changes:

• The separation could take at least two years
• The new immigration system should be fair, transparent and flexible to meet labour market needs
• The decision to leave the EU will not mean an end to immigration
• The Government will likely allow EU Nationals already in the UK to remain, subject to a registration style system
• Post-free movement policy reciprocity for UK nationals is already forming in the EU
• There will be a grace period after the break with the EU. This could be two or more years

Current visa workers will need to make some decisions on how they will want to continue working in the UK during Brexit. The immediate options include applying for a registration certificate, permanent residency or eventually a British citizenship. It is important to remember that existing resident documents under EU regulations will no longer be valid and EU nationals must re-apply under the new scheme. Family members’ rights will generally be aligned with those of the EEA national.

Brexit and Its Effect on Immigration Questions

Webinar attendees asked questions that delved deeper into specifics about the current immigration process and how Brexit will affect it in the future. Ian and Tom shared their answers to some of the questions below:

1. What is the difference between a work permit and visa?

   Visa and work permit are often used interchangeably. A visa is a permission to enter a country and is often placed into a passport as a vignette or a stamp. Not all visas permit work (visitor visas for example). A work permit is a permission to work. Many vignettes in passports are both visas and work permits at the same time.

2. Is it possible to switch from a Tier 2 ICT to a Tier 2 General with the goal of settlement?

   For Tier 2 ICT visas issued after 6 April 2011, it is not possible to switch to Tier 2 General. Those issued before that date can only switch to Tier 2 General when changing sponsor.

3. When an individual applies for a temporary residence permit, will they need to send off their passport?

   We don’t know yet, but the current system allows applicants to show their passports to a local council who then confirms its authenticity to the Home Office. This means that the passport can be retained. We expect and hope that a similar system will be put in place.

4. Would you recommend EU nationals who have already been here for five years, apply for settled status now?

   It’s not possible to apply for Settled Status as the route is still just a proposal. We expect it to be in place by September 2018. EEA nationals can apply for Permanent Residence now, but there is little point in doing this unless they want to naturalise as a British citizen before Brexit. It is one of the requirements of naturalisation applications that an EEA national must hold a permanent resident card.

5. When someone applies for settled status, will they need to renounce their original nationality?

   No, Settled Status is not Naturalisation so does not grant citizenship.

6. Do you have any recommendations for things that employers should be doing at this stage to prepare?

   Check your records for EEA nationals and identify any individuals that may be concerned. We have found that communication is key and employees would like reassurance they will be supported.

7. When does the five years start from for employees living in the UK? From the date of Brexit being decided or being processed?

   The five- year period starts from when they first arrived in the UK as a resident. So, anyone in the UK who has been here at least five years already will meet the requirement.

8. When an individual applies for a settled status, will an employer need to support the application or provide any information, e., confirmation of employment or start date to confirm how long they have worked in the UK?

   We don’t know yet, but some confirmation of employment is likely to be required – this might be a letter or a pay-slip. We’ll have more details by Summer 2018.

Background Screening Considerations for Foreign-Born Workers

It’s just as important to check your foreign-born workers as it is to screen those born in the UK. Global pre-hire screening will depend on the industry sector and the specific role that is being hired for. To learn more about immigration and hiring foreign-born workers and how Brexit will affect these two issues, access the OnDemand version of the webinar.

Please note: Sterling is not a law firm. The material available in this publication is for informational purposes only and nothing contained in it should be construed as legal advice. We encourage you to consult with your legal counsel to obtain a legal opinion specific to your needs.

This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.