The Impact of Brexit on Immigration Law

On 31 January 2020 the UK left the EU and entered a transition period, during this time the UK remains bound by EU law including the right of freedom of movement within the EU. The transition period will end on 31 December 2020, following which a new immigration system treating EU nationals and non-EU nationals the same will apply to new arrivals from the EU. Organisations who employ EU nationals or rely on free movement of people will therefore be impacted and we have outlined the key changes below.

What is changing?

The key changes to UK immigration law that employers should be aware of include:

  • Sponsorship of EU nationals: Under the UK’s new immigration system, EU nationals arriving in the UK from 1 January 2021 will be treated the same as non-EU nationals. This means they will require a visa in order to come into the UK on a long-term basis and therefore, may require sponsorship to work. In order to sponsor an individual, your organisation must hold a sponsorship licence and the position must meet the requirements for a skilled worker visa.

  • The UK’s new Immigration System: The government opened the new immigration system on 1 December 2020. There has been a number of changes which will actually make the process easier for sponsors including, the removal of the resident labour market test for the majority of skilled workers, relaxed switching provisions, a lower salary and skill threshold and the removal of the 12-month cooling off period for workers leaving the UK. However, there are some aspects of the rules that require clarification which has not yet been provided – for example evidencing that the role is a genuine vacancy.

  • EU nationals currently in the UK: EU nationals who are resident in the UK prior to the 31 December 2020 are able to remain in the UK with the same rights as they have now. Crucially however, they must apply for status under the EU Settlement Scheme prior to the deadline of 30 June 2021. If they have been resident in the UK for over 5 years they will qualify for settled status and can remain in the UK indefinitely. If they have lived in the UK for less than 5 years they can apply for pre-settled status and thereafter obtain settled status once they have reached 5 years. It is an individual’s responsibility to apply to the EU Settlement Scheme.

  • Right to work checks: All employers must conduct right to work checks on all employees, irrespective of their nationality. Currently, EU nationals are able to rely on their EU passport in order to prove they have the right to work in the UK. When engaging EU nationals who apply for positions after 1 January 2021, employers must conduct a right to work check in the usual way and do not need to ask for confirmation of an EU national’s status under the settlement scheme. This will remain the case until 30 June 2021, which is the deadline for EU nationals to apply to the scheme.

What action do you need to consider now?

It is crucial that employers engage in strategic planning in advance of 31 December 2020 to avoid potential shortages in the workforce. If you believe that the end of free movement will impact your future recruitment needs, it is important you plan ahead and consider whether you will need to obtain a sponsorship licence or increase your CoS allocation or tiers on your existing licence.

To assist employers in this important exercise, Stone King’s immigration team have developed a free Brexit Self Audit Tool to help organisations assess whether they are Brexit ready and, if not, identify what actions they need to take. Specific tools are available for businesses, charities, religious orders, state schools and independent schools and please find the link to each here

If you have any questions on the impact of Brexit on your organisation, please do not hesitate to contact our immigration team

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

The Legal 500 - The Clients Guide to Law Firms

UK Chambers logo

Best Companies - One to watch logo

Cyber Essentials Certification Logo