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Immigration Guide – How to recruit from outside the UK from 2021

Posted by Lesley Furber on Nov 5th, 2020 | Employment law

Immigration Guide - How can employers recruit people from outside the UK from 1 January 2021 | Crunch. Image of a signs at an aiport

From 1st January 2021, the freedom of people to move between the UK and EU countries will end and the UK will introduce a new immigration system that will treat all applicants equally, regardless of what country they come from (except Irish citizens who are exempt from immigration rules, due to the pre-existing Common Travel Area arrangements). 

From this date, all non-British/Irish nationals will require a valid immigration status/visa to live, work, and study in the UK.

This will not apply to EEA (European Economic Area) or Swiss citizens you already employ, who live in the UK now, and who have applied and been accepted to the EU Settlement Scheme (EUSS). EEA citizens must apply to the EUSS by the 30th June 2021 to preserve their right to live and work in the UK from 2021.

In a survey by campaign group the3million, at the end of October 2020, only 14% of companies said they were clear on the new rules from 31st December 2020. So here we look at the details you need to know.

Please note: The government is continually refining the immigration system and rules. The information in this Guide is correct as of 10th December 2020. You may also be interested in our article “Brexit: get your business ready” that covers other areas of your business that may require action. 

From 1st January, employers will need a sponsor licence to employ anyone new they wish to recruit from outside the UK (excluding Irish citizens). All Job Seekers/workers from outside the UK (excluding Irish citizens) will need a valid visa before they can travel to the UK, if they intend to live, work, or study in the UK.

If an employer regularly hires EEA nationals but does not yet have a sponsor licence, they should apply for one now at gov.uk.

Employers will be subject to a Civil Penalty if they are found to be employing illegal workers within the previous three years. The starting point for the calculation of the civil penalty is £20,000 before reductions are applied.

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Pre-Settled Status for EEA nationals living in the UK before 31st December 2020

There are no fees to pay for EEA nationals to apply for this status now. This is valid for five years but will lapse if the individual is absent from the UK for two consecutive years.

There are no restrictions on work or study during pre-settled status.

This status could be an option for individuals who do not fall into any other immigration category, and who already spend significant periods of time in the UK (for work reasons perhaps), but do not live in the UK, and will continue to need to spend similar amounts of time in the UK in the years ahead.

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There are no fees to pay for EEA nationals to apply for this status now. This is available if people spend a continuous period of five years in the UK (with no more than six months absence in any 12 month period; there are a few exceptions where longer absences are allowed).

EU nationals who have the right to reside in the UK can claim means-tested benefits

In December 2020 the Court of Appeal confirmed that EU nationals who hold the right to reside in the UK cannot be excluded from claiming means-tested benefits. The case was brought by the Child Poverty Action Group (CPAG) on behalf of two Romanian nationals who had been granted ‘pre-settled’ status under the EU Settlement Scheme.

One man was severely disabled, the other was his carer, and they had been refused Universal Credit. This decision was found to be discrimination the grounds of nationality. The Department for Work and Pensions intends to appeal against the ruling by the Court of Appeal and does not have to implement the judgement until 26th February 2021.

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Step one: You need to check your business is eligible

To get a licence, you cannot have unspent criminal convictions for immigration offences or certain other crimes, such as fraud or money laundering.

Step two: Choose the type of licence you want to apply for

The most common licences are Tier 2 or Tier 5 – you can apply for a licence covering either tier or both.

Tier 2

Tier 2 is for skilled workers who you want to employ long-term or permanently. It’s split into:

  • General – the role must meet the job suitability requirements (there’s a suitable rate of pay and skill level)
  • Intra-Company Transfer – for multinational companies which need to transfer employees to the UK
  • Minister of Religion – for people coming to work for a religious organisation (for up to three years)
  • Sportsperson – for elite sportspeople and coaches who will be based in the UK

Tier 5

Tier 5 is for skilled workers you want to employ on a temporary basis. It’s split into:

  • Creative and Sporting – to work as a sportsperson (up to one year), entertainer or artist (up to two years)
  • Charity Worker – for unpaid workers (up to one year)
  • Religious Worker – for those preaching, or performing pastoral and non-pastoral work (two years)
  • Government Authorised Exchange – work experience (one year), research projects or training, for example practical medical or scientific training (two years) to enable a short-term exchange of knowledge
  • International Agreement – where the worker is coming to do a job which is covered by international law, for example employees of overseas governments

Step three: Decide who will manage the sponsorship within your business, and who will use the sponsorship management system (SMS).

Step four: Apply and pay a sponsorship fee

UK Visa and Immigration may need to visit your business before your application is confirmed.

Fees are between £536 and £1,476 depending on the type and size of your business.

It’s estimated that sponsoring an individual skilled worker (without dependents) for five years can cost between £6-8k (including fees for the licence, sponsorship certificate, visa application, immigration skills charge [Employers must pay £1,000 per skilled worker for the first 12 months], the immigration health charge [for visas over six months], and any legal advice you need to take).

Step five: What happens after you apply

You’ll be given a licence rating if your application is successful. You’ll get an A-rated licence if your application is approved which lets you start assigning certificates of sponsorship to job seekers.

Your A-rated licence may be downgraded to a B-rating at a later stage if you do not continue to meet your sponsor duties.

If this happens, you will not be able to issue new certificates of sponsorship until you’ve made improvements and upgraded back to an A-rating. You’ll still be able to issue certificates to workers you already employ who want to extend, or who are switching from a Work Permit.

You must assign a certificate of sponsorship to each foreign worker you employ. This is an electronic record, not a physical document. Each certificate has its own number, which a worker can use to apply for a visa.

Your licence will be valid for four years.

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From 1 January 2021, anyone you recruit from outside the UK for the Skilled Worker route will need to demonstrate that:

  • they have a job offer from a Home Office licensed sponsor
  • they speak English at the required level (B1, lower intermediate level) and may need to prove their competency by taking a test
  • the job offer is at the required skill level of RQF3 or above (equivalent to A level)
  • they’ll be paid at least £25,600 or the ‘going rate’ for the job offer, whichever is higher (this rate was reduced in October 2020 from £35,800).

If the job will pay less than this – but no less than £20,480 – the applicant may still be able to apply by ‘trading’ points on specific characteristics against their salary. For example, if they have a job offer in a shortage occupation or have a PhD relevant to the job.

A total of 70 points is needed to be able to apply to work in the UK – details are available at gov.uk.

These rates are based on gross basic salary only (you cannot include allowances and bonuses, benefits in kind, visa/relocation costs, or pension contributions). There are no regional salary thresholds.

Further information on which occupations are at the required skill level and the salaries for these occupations can be found in Annex E of the “UK points-based immigration system: further details” statement.

There will not be a general route for employers to recruit from outside the UK for jobs offering a salary below £20,480 or jobs at a skill level below RQF3.

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A Tier 2 Skilled worker visa will cost from £1,800 for a 12 month visa for a small sponsor company. Immigration health charges are £624 per year of visa from 27th October 2020.

Skilled workers who apply for a Health & care visa, under Tier 2, in eligible health occupations with a job offer from the NHS, social care sector, or employers and organisations which provide services to the NHS will benefit from:

  • fast-track entry
  • reduced application fees
  • dedicated application support
  • an exemption from the immigration health surcharge.

Policy guidance for Tier 2 visa applications (updated October 2020) is available through gov.uk.

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If you want to transfer a worker from a part of your business overseas to work for you in the UK, they can apply for the Intra-Company Transfer route. Applicants will need to be existing workers who will undertake roles that meet the skills and salary thresholds.

From 1 January 2021, workers transferring to the UK will need to:

  • be sponsored as an Intra-Company Transfer by a Home Office licensed sponsor
  • have 12 months’ experience working for a business overseas linked by ownership to the UK business they will work for
  • be undertaking a role at the required skill level of RQF6 or above (graduate level equivalent), which is on the Standard Occupational Code (SOC) job list
  • be paid at least £41,500 or the ‘going rate’ for the job, whichever is higher.

Permission for workers transferred to the UK on the Intra-Company Transfer route is temporary. Workers can be assigned to the UK multiple times, but they cannot stay in the UK for more than five years in any six-year period.

However, workers paid over £73,900 do not need to have worked overseas for 12 months and can stay for up to nine years in any ten-year period.

There is no English language requirement for Intra-company transfer visas.

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There will be no visa route for low skilled roles, i.e. these below the RQF3 skill level (A level equivalent), which are usually roles in agriculture, retail, manufacturing, and haulage, for example.

The government had proposed a temporary transitional visa for industries that rely on lower skilled EEA workers, but this is not currently being implemented.

There will be sector specific seasonal visa programmes such as the Seasonal Agricultural Workers programme (which will give time limited visas within a quota system).

The Seasonal Workers Pilot for agriculture is currently running until the end of 2020. This route is being reviewed and a decision on whether it will continue under the points-based system will be made in due course.

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If you’re an EU, EEA or Swiss Citizen who is employed or self-employed in the UK, but you are not primarily resident in the UK, then you are a Frontier Worker. ‘Not primarily resident’ means that you have been in the UK for less than 180 days in the 12 months prior to making an application for frontier worker status, or that you’ve returned to your country of residence at least once in the last six months, or twice in the last 12 months before making an application (unless there are exceptional reasons).

On 10th December 2020, the government launched the Frontier Worker Permit Scheme. Individuals who are employed or self-employed in the UK as a frontier worker before the end of December 2020 may be eligible for a frontier worker permit which will enable them to continue to do this. If you’re a frontier worker, you’ll need a permit to enter the UK to work from 1st July 2021, alongside your passport or national identity card. Before 1st July 2021, you can just use your passport or national identity card to enter the UK.

You can use your permit to enter the UK as a frontier worker and show your right to work, rent and access benefits and services, including NHS healthcare, if you meet the relevant eligibility requirements.

There is no fee to apply for the permit, and you do not have to pay the immigration health surcharge. The permit will last for five years if you are an employed worker, and for two years if you are self-employed. The permit will not provide leave to enter or remain in the UK.

People who start working in the UK for the first time after 1st January 2021 will not be eligible for a Frontier Worker permit, and you’ll need to apply to work in the UK under the new points-based immigration system.

The government guidance is available at GOV.UK.

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A full list of worker routes can be read in the points-based system introduction for employers document.

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Visiting the UK after 1st January 2021 for non British/Irish nationals

Visitors are able to come to the UK for 180 days at any one time to attend meetings, interviews, conferences, gather information for their work, give and receive training, holiday, and do some short-term studies. The rules are changing from 1st December 2020 and you can see the new visitor rules at gov.uk.

Visitors should not undertake any work or long-term study using this route as only limited business or work activities are allowed (as above). Therefore, this visitor route cannot be used for work placements or internships.

The visitor rules from 1st December 2020 will now:

  • permit study of up to six months under the standard visit route. All study must be undertaken at an accredited institution, except recreational courses undertaken for leisure that last no longer than 30 days
  • allow drivers on international routes to collect as well as deliver goods and passengers in and out of the UK.

Visitors from certain countries – e.g. China, India, South Africa – need to get a ‘visitor visa’ before they arrive in the UK.

From 1st January 2021, EEA nationals will not need a visitor visa (the same as nationals from e.g. the USA, Canada and Australia now).

UK ancestry

UK ancestry applies to Commonwealth citizens with a grandparent born in the UK who intend to come to the UK to work.

Students

Students must be sponsored by a Higher Education Institute or School who hold a sponsor licence to study in the UK under Tier 4 licence arrangements. EEA nationals will be included in this category if they arrive in the UK from 1st January 2021.

Graduate route

The Graduate Visa will be available to international students who have completed a degree in the UK from summer 2021. This will enable international students to remain in the UK and work at any skill level for two years after they have completed their studies. It will be an un-sponsored route.

International students who complete a PhD from summer 2021 can stay in the UK for three years after study to live and work. This will make it easier for some of the best young international graduates to secure skilled jobs in the UK.

Investors

Those individuals with at least £2million who can transfer these funds to the UK and invest in qualifying assets will be able to continue to apply for visas under the Tier 1 (Investor) category.

If the investment is maintained for a five year period, the individual would qualify eventually to settle in the UK. Settlement is available in three years if they invest £5million, or two years if they invest £10million.

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Global Talent

The Global Talent route (which has replaced the Tier 1 system) is designed to attract recognised global leaders and promising individuals in science, humanities, engineering, the arts and digital technology.

This will be extended to EEA nationals from 1st January 2021. Individuals will be granted permission to work without restriction if they’re endorsed by a specialist endorsing body and have adequate English language skills. An employer will not need to be a Home Office licensed visa sponsor to employ a migrant under the Global Talent route.

As of July 2020, the current list of approved endorsing bodies is as follows:

  • The Royal Society, for science and medicine
  • The Royal Academy of Engineering, for engineering
  • The British Academy, for humanities
  • UK Research and Innovation, for science and research
  • Tech Nation, for digital technology
  • Arts Council England, for arts and culture.

Youth Mobility Scheme

The Youth Mobility Scheme will enable around 20,000 young people (aged 18 to 30 years old) to come to the UK to work and travel each year. At the moment young people from Australia, Canada, Hong Kong, New Zealand and other countries use this scheme which allows unrestricted work. This will apply to EEA nationals on a reciprocal basis with their individual EU country after January 2021.

‘Non-sponsored’ points based system

The government intends to introduce a ‘non-sponsored’ points based system where visas are granted based on academic qualifications, age, earnings potential etc. without the need of a job offer. This will be implemented after 1st January 2021.

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You’ll still need to check that all new employees have a right to work in the UK before they start work (as you should do now).

EEA and Swiss citizens (excluding Irish Nationals) can use their passport or national identity card to prove they can work in the UK until 30 June 2021. Until this date, employers cannot require these citizens to prove their immigration status under the EU Settlement Scheme. Home Office guidance says you will not need to make retrospective checks for employees who worked for you prior to 31st December 2020, who are from the EEA, from July 2020.

After 1st July 2021, employers must ask new EEA employees for proof of their immigration status – which will either be under the EU Settlement Scheme or via the new immigration system.

EEA nationals who have applied for their immigration status under the EU Settlement Scheme (EUSS) will not have a physical document to prove their status. Their status will need to be verified online by the employer.

Non-EEA nationals will continue to have evidence of their immigration status in either their passport and/or a Biometric Residence permit.

More about the EU Settlement Scheme

If an employee has been outside the UK for more than 6 months in a 12 month period, their continuity of residence will normally have been broken – however there are exceptions where single periods of absence of up to one year are allowed if there was an important reason.

Examples of an ‘important reason’ include pregnancy, child birth, serious illness, study, vocational training, overseas posting or compulsory military training.

The government recently confirmed that being quarantined to protect public health would be accepted as an important reason and they have published guidance for EUSS applicants who have been affected by illness or travel restrictions due to COVID-19.

Our Crunch advisors are only able to answer accountancy related questions. If you have an employment question, please either leave a comment below or phone the Acas Helpline on 0300 123 110.

If you are an employer and need ongoing professional help with any staff/freelance issues, talk to Lesley at The HR Kiosk  – a Human Resources Consultancy for small businesses. Our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.

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