March 4th, 2021 | Sterling

Brexit Essentials for Employers: Immigration, Right to Work & Background Checks

With so much happening in the world in recent times, the new Brexit agreement has almost been overshadowed, but as we plan for life outside of the European Union, it is essential that employers keep pace with related compliance obligations.

In our recent webinar “Brexit: What Employers Need to know”, we were joined by guest experts at Fragomen LLP, alongside Steve Smith, Managing Director of Sterling EMEA, as they examined the immigration system, Right to Work and how that has changed, and what it means to become a UK sponsor. For many, staying up-to date with Brexit may almost have been an afterthought in light of Covid-19, and this was perhaps reflected in our in-webinar poll, which revealed that only 2% of attendees were entirely comfortable with post-Brexit immigration rules. Readers can watch the webinar in full here.

However, in the meantime we’re happy to provide a high-level outline of some of the key considerations that were discussed.

The New UK Immigration System

2020 was certainly expected to be a key year for preparation following the announcement of the new immigration system, which we previously documented. While many started on the front foot since the referendum result, keeping pace with developments, there was a period of uncertainty which naturally made things a little more difficult to navigate for employers. However, with the UK officially leaving the EU, and arrangements now in place between the two parties, there is some level of consistency and certainty to which we can all work towards. During these times, employers should look to educate and reassure employees that they can stay in the UK, whether that’s through the EU settlement scheme or by other means. Let’s take look at the new UK immigration system:

Firstly, EU nationals here before 2021 can stay in the UK, but they must register to the EU settlement scheme. It’s important to note that they have a deadline of 30 June 2021 to make that application. For EU Nationals who are coming to the UK for the first time under the new system, alongside all other nationalities, bar those exempt such as citizens from the Republic of Ireland. This is now an all-encompassing single system for all non-EU nationals. This system is inherently more complex than the previous free movement model, with those jobs deemed lower-skilled and any accompanied visa categories no longer available.

Brexit and ‘Skilled Workers’ with a Job Offer

Should an employer need to hire an overseas worker, there are two real tests that the individual must undergo in order to enter the UK. This category is also only for applicants that have a registered through a UK sponsor. Test one requires a score of 50 points, which can be obtained by having an approved sponsor, having a job that meets the relevant skills threshold and by satisfying the English language test. Under the previous system the skill level was originally at degree level or above, otherwise referred to as level six under the UK’s Regulated Qualifications Framework (RQF), but this has now been lowered to RQF3 and above, which is A level equivalent or higher.

The second test involves scoring at least 20 points through any of the following means:

• Salary £20,480 (minimum) £23,039 – 0 Points
• Salary £23,040 – £25,599 – 10 points
• Salary £25,600 or above – 20 points
• Job is a shortage occupation – 20 points
• PhD in relevant subject – 10 points
• PhD in STEM subject – 20 points
• Applicant is a new entrant – 20 points

It’s important to note that the salaries above are just the base salary thresholds, and so to meet the eligibility for the Skilled Worker visa employees must be paid at least £25,600 per year unless the ‘going rate’ for the type of work the individual is doing is higher. For more on the Skilled Worker route, head to the UK Visas and Immigration page of the gov.uk site, here.

Right to Work Considerations

For anyone involved in human resources here in the UK, the Right to Work process is by no means a new concept. And with fines of £20,000 per illegal worker for those that do not follow the correct procedures; employers cannot underestimate the importance of getting it right. Following the UK’s departure from the EU, there is no change in procedure for European nationals who have arrived in the UK on/or before 31 December 2020. This means European passports or ID are sufficient to provide a statutory defense. Following the end of the freedom of movement, employers are also not obliged to repeat checks for existing employers. From the employee perspective, they must have pre-settled or settled status by the June 30 2021 deadline.

On the other hand, EU nationals who have arrived in the UK after 1 January 2021 will be subject to the new points-based immigration system, which would require a visa to permit the individual to work in the UK. The way employers check an EU employee’s Right to Work will remain unchanged until 30 June 2021 – it’s not yet clear how this will work in practice following this date, although more details are yet to be confirmed. Until then, the checks remain unchanged and can be conducted using a passport or national identity card, as well as via the online Right to Work checking service.

What is a UK Sponsor License?

At a basic level, a sponsor license enables a UK-based organisation to sponsor a non-British/Irish national for work purposes, including newly arriving EEA nationals from 1 January 2021. As part of this, the organisation must have the relevant compliance processes in place and a means of tracking and monitoring the individuals it sponsors. In order to obtain this license, the organisation must also meet certain eligibility requirements such as appointing necessary key personnel.

There are two main categories of sponsor license:

• Worker (subcategories: Skilled worker, Intra-company transfer, Minister of Religion, Sports person)
• Temporary Worker: (subcategories: Charity, Religious, Creative or Sporting, Government Authorized Exchange, Seasonal or International Agreement workers)

The process for applying to obtain a UK sponsor license can be lengthy. Before embarking on the sponsorship license journey, there are three main considerations to bear in mind:

1. Is the organisation established and trading in the UK?
2. Are there key personnel based in the UK?
3. Are the correct Immigration Compliance procedures followed?
   • These may include Right to Work and prevention of illegal working, record keeping, and retention and maintenance of sponsored employee details

From getting up-to-speed with a new immigration system to the potential changes around the Right to Work process in future, it’s vital your organisation stays up-to-date and remains compliant. Sterling’s UK Right to Work Identity Verification has compliance in mind and is designed to automatically incorporate future legal obligations from the UK Home Office. It also helps deliver a great employer and candidate experience, all of which helps to deter identity fraud and creates safer workplaces.

If you’re not fully prepared for the changes ahead, or perhaps there are aspects you’re uncertain on, do not worry. Our webinar offers detailed insight into all the topics we’ve covered here and more. To tune in on-demand, just click here.

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.