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Workshop Recap: Post-Brexit Immigration Laws
2 November 2020
On the 1st January 2021, immigration laws in the UK will change and a new points-based immigration system will be introduced.
After hosting an insight-packed webinar on the topic at the beginning of October, we hosted an educational follow-up workshop in conjunction with Keystone Law with a more in-depth look into the changes. Talentful’s General Counsel Jack Carvel was joined by Keystone Partner and immigration law specialist, Sharmila Mehta.
An update on recent changes:
In recent weeks, the bill containing these changes became law and was accompanied by a mere 541-page document detailing the changes. While the laws are now in place, the procedure to accompany them is yet to be detailed. A first draft, with a simplification expected in 2021 to help make the laws more accessible, has now been created.
What is Settled / Pre-Settled status?
Settled or pre-settled status is a blanket approval to work in the UK post-Brexit. It applies only to EU nationals. Pre-settled status is the interim status before being granted settled status, which migrants only become eligible for after five years in the country.
There are two deadlines to apply for this status. An initial date of the 31st December 2020 and then a final deadline of the 30th June 2021, by which time all eligible European workers must have applied.
The status relies upon presence within the UK during the application process, although special dispensation will be given to those who have been affected by COVID. It involves a simple application process and the worker can do it themself, with legal involvement from their employer unlikely to be needed. The vast majority of applications get approved, which is good news given those who do not have settled or pre-settled status will need to be sponsored by their employer once the deadlines have passed.
Qualifying for the points-based system
Currently, non-UK citizens can work in the UK for free thanks to free movement. However, that is changing and employers will need to have a sponsorship licence to employ migrant workers.
The good news, though, is that it will be fairly simple to obtain sponsorship licences. The English language threshold that qualifies migrants for a licence has been dropped to GCSE English and the number of licences that companies can obtain is no longer capped.
The sponsorship requirement will apply to non-EU nationals from the 1st December 2020, while EU nationals will have to wait a little longer, until the 1st January 2021. If you have employees that already have permission to work in the UK, the advice is not to apply for a new licence under the points-based system, but rather to wait until their permission needs renewing at a later date. Those who qualify will be able to bring their dependents with them to live in the UK, but it’s worth noting that the system currently applies to permanent workers only and that contractors are not eligible. For workers moving from company to company, early indications suggest that they will need to reapply for the licence.
What are SOC codes?
A ‘SOC’ code is a standard occupation classification. It refers to the government’s classification of all the different job roles that exist in the UK and there are 26,000 codes in all. To grant a sponsorship licence to a worker, you must have an accompanying SOC code. Each code has an associated salary for that role attached and is split into entry-levels and experienced versions of the same role.
From the 1st December 2020, new codes are being introduced, with a reduction in the expected salaries attached to those roles. The skills threshold required to be granted a SOC code is also dropping, effectively making it much easier for employers to sponsor migrant workers. The minimum base salary expectation has dropped from £30k to £26.5k, but employers will have to pay whichever is higher out of the SOC code salary and the minimum base salary.
In practice, many sectors (such as the tech sector) pay well in excess of the salaries set out in the SOC codes, so we don’t anticipate this being an issue for many tech companies.
How does the sponsorship licence work?
A sponsorship licence is an employer’s licence to sponsor European or Non-European migrants to work in the UK. A sponsorship licence will be granted with a certain number of sponsorship certificates to be distributed to workers, dependent upon how many certificates you ask for when applying.
If you already have a sponsorship licence, you don’t need to do anything, as the Home Office has committed to migrating existing licences over onto the new system. However, if you don’t, now is the time to apply to avoid missing out on overseas talent.
It takes roughly three to six weeks to obtain a licence and you can ask for as many certificates within that licence as you like. There’s no cap to certificates, but a warning is that compliance is expected and those seeking to take advantage of the system will be found out. It was also noted that it makes more sense to distribute sponsorship certificates after the changes come into place, given the lower salary levels and reduced skill thresholds. Irish citizens don’t need to be sponsored, but you can do so if you wish.
Fees required for the various applications
- Sponsor licence: £536 for smaller employers / £1500 for larger employers
- Certificate of sponsorship: £199 per certificate
- Immigration health charge: £624/year
- Immigration skills charge for employers: roughly £500 per person, per year, for smaller employers. £1k for larger employers.
Fees can be paid either by the employer or by the migrant, it is down to the employer and employee to decide. The system will be switching to a digital, automated system in the new year, but it’s yet not clear when this will happen.
Evidencing the right to work
Until July 1st next year, employers can rely on the word of the EU nationals that they have applied for settled / pre-settled status as evidence of the right to work. However, after that date, normal rules are likely to apply, meaning that employers will need to be aware of (and document) the status of their employees to avoid the potential of illegally employing overseas workers. This is an unsettled area, and may likely be the subject of litigation in the future.
Advice on this topic is to ask your workers during the interview process and encourage them to apply for the correct status. If not, once the 30th June 2021 deadline has passed, you will have to commit to sponsoring them to work in the UK.
Additional questions asked
Does advertising roles only for those who don’t require sponsorship constitute discrimination against migrants?
This is a great question. We have seen cases go both ways on this, but we would certainly recommend reaching out to your employment law advisors for advice on your specific situation here.
I work for a not-for-profit organisation employing support workers. Sponsorship licences are not an option and 30% of our employees are from the EU and applying for status. How will recruitment look in future?
Unfortunately, the scheme does not allow for below-skilled workers. It’s likely the government will look at the policy again in six months’ time, but for now there is no dispensation for this. Getting ahead of headcount before the deadlines next year might be wise.
As of 1st July 2021, do you need to audit who has the right to work status in your company?
Yes, as much of a pain as it might be, you need to be aware of whether you will be employing legal workers or not. It’s possible this could go to court in the near future regarding those who were already here and working under free movement, but for now, it’s better to be safe rather than sorry.
For any further questions on any of the topics discussed, please contact jack.carvel@talentful.com
