Brexit: Implications for Immigration

The impact of Brexit continues to pose challenges not just for EU nationals and their family members but for UK employers and organisations as well. The UK’s immigration system has undergone significant changes in the past few years, with more to come on the horizon.

In this article we outline the main features of the post-Brexit immigration system and discuss what this means for EU nationals who are already in the UK, as well as those looking to move here for work. We also explain what employers and businesses need to do and how they can best navigate the challenges and potential opportunities of immigration after Brexit.

Please note that references to “EU nationals” in this article include nationals of Switzerland, Norway, Iceland and Liechtenstein.

New Rules for Workers

When the UK formally left the EU, a transition period was put in place which lasted until 31 December 2020. Any EU nationals and qualifying family members who were resident in the UK before that date were given the right to continue living and working in the UK in much the same way as they had pre-Brexit.

However, those individuals were required to apply for UK immigration status under the EU Settlement Scheme in order to preserve their ongoing rights. The deadline for applications was 30 June 2021. However, late applications are still being accepted by the Home Office if there was a good reason for the delay. Therefore any EU nationals or qualifying family members who were resident in the UK before 11pm on 31 December 2020 and who have not applied for status under the scheme, must do so urgently. Lack of status will affect an individual’s right to re-enter the UK as well as their right to work, rent a property, open a bank account or access NHS healthcare.

The end of the Brexit transition period also meant the end of free movement between the UK and the EU and the introduction of a new points-based UK immigration system. This means that any EU nationals coming to the UK from 1 January 2021 onwards will be subject to the new system in the same way as non-EU nationals. The main impact of this is that EU nationals will require a UK visa if they are coming here to work, or for any purpose outside of a visit.

Working in the UK after Brexit

All UK employers are legally required to check that their employees have the right to work in the UK. Right to work is governed by immigration status. Employers must carry out prescribed right to work checks on all employees before they start work, including British nationals and those with permanent residence in the UK. If the employee has a time-limited right to work (e.g. they have a UK work visa valid for 3 years) then follow-up checks must be carried out before their current permission expires.

Employers are not required to carry out retrospective checks on EU nationals who started work for them before 1 January 2021. However, if an EU national moves to a new employer, the new employer will need to carry out a right to work check in the same way as they would for any other employee. In practice, this will usually mean that the individual will need to show they have either permanent residence (“settled status”) or temporary residence permission (“pre-settled status”) under the EU Settlement Scheme.

EU nationals coming to the UK for work from 1 January 2021 onwards will require a UK visa which permits them to do the work in question. Exactly what type of visa will be most suitable will depend on the individual’s and employer’s circumstances.

Brexit impact on non-EU immigration

Brexit itself does not impact the immigration rules that apply to non-EU nationals. Those individuals continue to be subject to the UK’s main immigration system and to any changes that are made to it. The impact of Brexit is that EU nationals are now subject to that same system.

The UK’s immigration system requires that anyone coming to the UK for more than 6 months, or for any purpose outside the permitted visitor activities, must be granted a visa before they travel. There are numerous types of UK visa, each with their own eligibility criteria and each of which comes with conditions in terms of what the individual can or must do once they are here.

Whether or not someone needs a visa for a visit of less than 6 months will depend on their nationality and whether they are classed as a ‘visa national’ or a ‘non-visa national.’ Non-visa nationals include EU, US, Canadian, Australian, New Zealand, Japanese and South Korean nationals.

Skilled Workers

This is the main UK work visa route post-Brexit and replaced the old Tier 2 General category for skilled workers from 1 January 2021.

Eligibility for this visa requires an individual to hold a skilled job offer from a licensed UK employer. Holding a sponsor licence means the employer has associated compliance duties to the Home Office, which are monitored and enforced.

Only roles skilled to RQF 3 (A Level or equivalent) are eligible for sponsorship and specific minimum salary thresholds must be met. There is no longer an annual cap on the number of skilled workers entering the UK and employers are not required to carry out a resident labour market test before offering sponsorship. They must however demonstrate a genuine need for the role in question and that the migrant they wish to sponsor has the necessary skills, qualifications and experience. The migrant must also have at least intermediate level English language ability.

It may be possible to apply for permanent residence in the UK after 5 years on a Skilled Worker visa, if certain conditions are met.

Global Business Mobility

The new GBM route replaces the Intra-Company visa routes from 11 April 2022. There are 5 sub-categories to the new route: Senior or Specialist Worker, Graduate Trainee, UK Expansion Worker, Service Supplier and Secondment Worker. Employers wishing to sponsor migrant workers for a GBM visa must be licensed in the appropriate sub-category.

The UK Expansion Worker sub-category is for overseas businesses looking to establish a new branch or subsidiary in the UK and replaces the old Sole Representative of an Overseas Business route.

Eligibility for a GBM visa generally requires a highly skilled job offer (at graduate or managerial level) from a licensed UK employer and the applicable minimum salary thresholds must be met. In most cases, the migrant worker must have been employed overseas for at least 12 months first, unless their annual salary will be £73,900 or more. There is no English language requirement.

The GBM routes do not lead to permanent residence in the UK and there is a limit to the maximum number of years someone can spend in the UK on a GBM visa, which differs according to the sub-category. However, it is possible to switch from a GBM visa to a Skilled Worker visa from within the UK, if the eligibility criteria are met.

Existing sponsors and Tier 2 migrants

Sponsors who were licensed under the old Tier 2 visa routes do not have to apply for a new licence and have instead had their sponsor licences automatically transferred over to the new system (be that Skilled Worker in 2021 or GBM in 2022). Organisations which held an Intra-Company Transfer licence will now be licensed under the Senior or Specialist Worker route and those who held an ICT Graduate Trainee licence will be licensed under the Graduate Trainee route.

Existing Tier 2 visa holders are not required to take any action, although they will need to meet the requirements of the new routes at extension and permanent residence stage.

Employers without a sponsor licence who may need to sponsor EU and non-EU workers should apply now.

Further changes on the horizon

Several new visa routes will be introduced later in 2022. These include the High Potential Individual route, for recent graduates of elite overseas universities, which opens on 30 May, and the Scale-Up route which opens on 22 August. This route will enable the UK’s fastest-growing businesses to sponsor migrant workers with a more streamlined process and will provide sponsored workers with more freedom and flexibility in their work conditions than either the Skilled Worker or GBM routes.

Conclusion

Brexit has resulted in some of the most significant changes to the UK immigration system in decades. It is key for both EU nationals and their family members to be aware of the significant dates and what those mean for them in terms of their ability to live and work in the UK, the immigration status they hold and any applications they may need to make. There remain a number of routes that employers can use to recruit overseas workers post-Brexit, whether EU or non-EU nationals. It is important that they have the right type of sponsor licence in place and an understanding of the new visa categories that are available.