Employing Foreign Nationals Post-Brexit

Employers are under a legal duty to prevent illegal working and you can be subjected to penalties where you fail to do so; this can include a criminal offence so it is important to make sure that you have the right processes in your organisation.  

EU citizens who are currently working for you, or were in the UK before by 31 December 2020, need to take action to gain permission to remain in the UK. This applies unless they have already been granted indefinite leave to remain (ILR) or are from Ireland. Employees must apply to the EU Settlement Scheme. Successful application guarantees the right to continue living and working in the UK indefinitely. Applications for the Scheme are made from the gov.uk website. It is free to apply.

The UK has introduced a new system of immigration control. For the first time in decades, EEA and Swiss nationals (EEA nationals) will be subject to the same immigration controls as non-EEA nationals. Free movement for European nationals ended on 31 December 2020. 

The new system will apply to the recruitment of European nationals, who arrive in the UK on or after 1 January 2021, as it does to all other overseas nationals. The key characteristics of the new system are the same as the current system – an employer must be licenced by the Home Office, an employee must be sponsored to do a specific job, the job must meet a skill and salary threshold. 

If you have regularly employed EEA nationals or you think that you may need to recruit a foreign national in future, you should consider applying for a sponsor licence. It can take an average of 8 weeks to process applications so it is better to act before the immediate need arises. You’ll need to check the eligibility criteria to decide if you qualify.  

You will need to pay a fee to apply for a licence, which varies depending on the size of your organisation. Small companies will pay £536 for each application. Larger organisations will pay £1,467 for a licence to take on long-term staff, and £536 for temporary staff. You are likely to be considered a large company if your annual turnover is over at least £10.2 million and you have at least 50 employees. You can expediate the licence at an additional cost of £500. Once you are a licence holder, you’ll need to issue a Certificate of Sponsorship to any individuals who are to be sponsored. This fee is £199.  

A visa application fee and health immigration surcharge are payable by the individual applicant. Some employers may agree to cover these costs. The visa fee depends on the duration of sponsorship and whether the applicant is inside or outside the UK on application. The fee ranges from £610 - £1,408. The health surcharge is £624 per year.  

This is potentially the area that could cause the most confusion as changes to right to work checks do not come into force until 1 July 2021. Until this date you should check a job applicant’s right to work in the UK under existing rules (i.e. there is no change to right to work checks until then). Currently, job applicants can prove the right to work with any of the following:

• their valid passport or national identity card if they’re an EU, EEA or Swiss citizen
• their valid biometric residence card if they’re a non-EU, EEA or Swiss citizen family member
• their status under the EU Settlement Scheme using the Home Office’s online right to work checking service.

Whilst job applicants can use their status under the EU Settlement Scheme as evidence, you cannot require them to produce this. If they do so, you can use the share code to check status online. If an EU citizen produces their valid passport, then this is sufficient evidence of their right to work. There is no obligation to provide their status under the Settlement Scheme. Requiring this is likely to constitute discrimination. You cannot make an offer of employment, or continued employment, dependent on an individual having made an application.

These proposals will make the skilled work visa more accessible and more streamlined for both employers and employees.  It will still require satisfaction of Home Office duties which require robust HR systems and specialist knowledge.  The recruitment process under the immigration system will be more expensive than free movement.

If you would like a copy of our Brexit FAQs for employers send an email to nicole.james@bamboopeoplesolutions.co.uk