The questions below were raised during two of our most recent immigration webinars.
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Q1. What advice would you give to employers on right to work checks post Brexit given EU nationals who come into the UK after 1 January will be subject to immigration control? Employers are now advised that right to work checks continue as they are until 30 June with no retrospective checks required for existing staff. How are employers to differentiate between those who come before and after January 1 so not to violate anti-discrimination laws, and are follow up checks post June 30 required in your view in light of the requirement to prevent illegal work?
A. Employers are not required to differentiate between EU nationals who were living in the UK before 1 January 2021 and those who were not until 1 July 2021. As long as you have carried out a right to work check in line with Home Office guidance you will have established what is called a statutory defence from civil liability should it come to light that your employee does not in fact have a right to work. If you know that a person does not have the right to work you cannot establish a statutory defence from civil or criminal liability however and should not employ them.
Q2. During the interim period 1st January to 30 June 2021 are there any barriers to EU/EEA nationals without settled or pre-settled status, entering and working in the UK?
A. There will be no barriers or additional checks on EU nationals entering the UK before 30 June 2021. Equally, employers are not permitted to insist on seeing right to work evidence beyond an EU passport or national ID card before that date. Notwithstanding, an EU national will be working illegally if they come to the UK for the first time after 1 January without work authorisation under the Immigration Rules.
Q3. Should my French teacher, who is married to a British national and has lived in the UK for over 25 years, apply for settled status?
A. Your French teacher must make an application to retain their status in the UK after 30 June 2021 if they do not hold any other formal permission to live in the UK e.g. Indefinite Leave to Remain. After 30 June 2021 they may have difficulty re-entering the UK and evidencing their right to live and work here if they have not applied under the EUSS. They are at risk of losing their right to work and live here if they do not make the application by the deadline.
Q4. Would there be changes to a right to private and family life as it currently stands?
A. The right to respect for your private and family life, home and correspondence is enshrined in UK law, by virtue of Article 8 of the Human Rights Act 1998. This UK statute incorporates the rights set out in the European Convention on Human Rights. The government plans to replace the Human Rights Act with a Bill of Rights at some point post 1 January 2021. We do not yet know what, if any, change to the right to private and family life this may have.
Q5. Is there a prospect of those who have lived here for over 16 years being granted leave on the basis of private life?
A. EU nationals who have lived in the UK for 16 years will qualify for Settled Status under the EU Settlement Scheme. They must apply under the Scheme by 30 June 2021 to retain their right to live and work in the UK. Non-EU nationals who have lived in the UK for 16 years may be eligible to apply for leave to remain based on their private life depending on their immigration history and individual circumstances.
Q6. You listed a price for the Home Office application part as being “per applicant”, is the applicant the business or each and every proposed new employee?
A. Home Office application fees are per each and every non-UK employee, and any non-UK family members accompanying them.
Q7. How should employers deal with new hires post 1 January if the new employee says they were in the UK before 31 December but has not yet applied for settled/pre-settled status?
A. You should continue to check EU nationals right to work the same way you do now until 30 June 2021 – you must only insist on seeing their passport or national ID card as evidence of their right to work. EU nationals living in the UK before 31 December 2020 have until 30 June 2021 to apply under the EU Settlement Scheme, and so it is not an issue for their status if they have not applied yet.
Q8. How do these new immigration laws affect remote working from outside of the UK and for non-EU nationals?
A. If a worker is not physically in the UK, they do not need work authorisation even where their employer is based in the UK. Complications arise, however, should the worker ever need to visit the UK. Entering the UK, even for what is listed as a permitted visit activity, whilst employed and paid by a UK employer may require work authorisation. We recommend you seek advice in these circumstances. This already applies to non-EU nationals and will apply to non-EU nationals from 1 January 2021 onwards.
Q9. Would anyone already on a Tier 2 General visa from 2018 have to apply for an extension?
A. Tier 2 General visa holders will be able to continue on their current permission until it is due for expiry. Any extension applications after 1 December 2020 must be under the Skilled Worker category. There will be transitional provisions to allow for changes in salary and skills thresholds in the new rules.
Q10. I recently read that international UK graduates will be given stay of two years after their study is completed; on what basis does that work? If I am going to do a GDL will it also make me eligible for this two-year period?
A. The Government is introducing a post-study work visa in Summer 2021 which will enable those studying in the UK to remain and work here for an additional two years after they graduate, three years if they are a PhD student. We do not yet have any specific details on how the category will operate.
If you are in the UK on a Tier 4 or Student visa for your GDL you should be eligible for the post study visa when it is launched, subject to its specific requirements.
Q11. How can a non-EU National who is a lawyer get a job in the UK from his home country?
A. A non-EU national lawyer would most likely need to apply under the Skilled Worker route in order to work in the UK. They would need to have a job offer from a UK employer who holds a sponsor licence and meet salary and skills thresholds to apply under the category.
Q12. Are secondees considered as ‘skilled workers’ in the UK?
A. Non-UK national secondees will likely need to apply for a Skilled Worker or Intra-Company Transfer visa to work in the UK, depending on the individual circumstances.
Q13. If an employee has not applied for settlement status by 30 June, where do employers stand? Will they still have right to work in the UK?
A. If an EU worker has not applied for settled status by 30 June 2021, they will in theory be unable to work in the UK until they qualify under the Skilled Worker or other route. It remains to be seen however whether UKVI will extend their discretion to EU nationals who have not applied by the deadline, particularly if there are compelling or compassionate reasons why they were not able to do so. Currently, however, the position remains that those who do not make their application under the EU Settlement Scheme by 30 June 2021 will only be able to stay on and work in the UK if they qualify to do so under the Immigration Rules.
Q14. What are the best ways to prove a vacancy is genuine?
A. Details of what evidence sponsors will need to keep are set out in the sponsor guidance but are pretty sketchy – the Home Office are leaving it very open and ensuring that the ‘genuine’ nature of any vacancy is defined at their discretion. However, with the abolition of the RLMT, they have confirmed that they won’t be prescriptive over the location and duration of any job adverts, and are just concerned that employers can show if asked that they have been able to recruit the best candidate, regardless of nationality. Is it best to retain evidence of how you came to recruit someone? No harm in doing so.
Q15. If someone is on a sponsorship of 3 years but previously was on a working holiday of 2 years, under the new system is there any changes to their validity to apply for citizenship after 5 years or do the rules remain that the working holiday visa does not count towards the 5 years due to them having to leave the country to switch onto a different visa?
A. Under the new system a holder of a Tier 5 working holiday maker visa ( in the case the Youth Mobility Scheme) is able to switch to a Skilled Worker visa in-country, as this person has done – but they will need to be in the UK in this capacity for 5 years before they are able to apply for Indefinite Leave to Remain. They cannot combine time spent here under Tier 5 as a temporary worker with time spent here as a Skilled Worker under the new rules. Only once they have had ILR for 12 months will they be able to apply to naturalise & obtain British citizenship.
Q16. How will the minimum salary requirements affect the care & NHS sectors where salaries for nurses etc are typically lower than £26,000.00?
A. The new system introduces a system of tradeable points whereby those on lower salaries can trade these for other attributes, such as being in a shortage occupation (such as nurses and some in the care sector) in order to gain the requisite 70 points and thereby qualify for a Skilled Worker visa.
The Fox Williams immigration team is advising our clients on what they must do to ensure they are compliant. Please contact one of the team if you have any queries or would like advice.