Following the end of the Brexit transition period and the introduction of new immigration rules, here are the questions that we are most frequently asked by employers and those working in the UK, together with our answers.
We cover right to work checks for EU nationals, working outside and travelling to the UK, questions about adjustments to visa rules as a result of the pandemic, and issues for directors and senior employees.
1. How should UK employers carry out right to work checks on EU nationals post-Brexit?
You should continue to check EU nationals’ right to work now in the same way as before 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.
Until 1 July 2021 you are not required to differentiate between EU nationals who were living in the UK before 1 January 2021 and those who were not. 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. Notwithstanding, if you know that a person does not have the right to work you cannot establish a statutory defence from civil or criminal liability and should not employ them.
2. How do UK employers undertake right to work checks when we are not physically in the office?
Employers are temporarily not required to see an employee’s original document in order to carry out a compliant right to work check and can follow the steps outlined here. Retrospective full checks must be made within eight weeks of the pandemic measures ending.
If the person has status under the EU Settlement Scheme or a BRP card, you can check their status online.
3. Can we allow sponsored workers to work remotely outside the UK?
There is nothing to prohibit sponsored workers working remotely outside of the UK, however sponsors will still be expected to comply with their sponsor duties e.g. monitoring, record keeping and reporting. Sponsored workers should also be mindful of their absences from the UK if they eventually intend to apply for Indefinite Leave to Remain (ILR). As a general rule, absences should be less than 180 days per year to meet the residence requirement of an ILR application.
4. Does an employee working remotely outside the UK need a UK visa?
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.
5. I am a national of an EU country. Can I work remotely from outside the UK without jeopardising my status under the EU Settlement Scheme?
If you hold Pre-Settled status, you can spend up to two years outside the UK without losing your status. However, you must be mindful of maintaining your continuous residence in the UK in order to be able to qualify for Settled Status within your five-year period of permission, as it cannot be extended. To maintain continuous residence, generally, you must not have absences from the UK of more than six months in any 12-month period. An exception to this is one period of up to 12 months for an important reason – the pandemic should fall under this.
If you hold Settled Status you are able to leave the UK for up to five years (continuously) without losing your status.
6. I am due to travel to the UK soon, what do I have to do to comply with coronavirus rules?
As of 19 February 2021, travellers to the UK are required to:
Travellers who have been in or through a ‘Red list travel ban’ country will be refused entry to the UK, unless they are British, Irish or have UK residence rights. British nationals, Irish nationals or those with residence rights in the UK arriving from a Red List travel ban country must quarantine in a government approved quarantine hotel for 10 days.
7. My visa is about to expire but I am stuck outside the UK and am prevented from returning, what can I do?
The UK government’s position is that ‘no one will have a negative outcome through the immigration system due to a circumstance that was beyond their control’. If you left the UK with valid permission before 17 March 2020 but have not been able to return before the expiry of your permission due to the pandemic, you can apply under the Covid Visa Concession Scheme which will extend your permission for a limited period to enable you to return to the UK.
8. My visa is about to expire/has expired but I cannot leave the UK due to the pandemic, what should I do?
If you intend to leave the UK but are unable to do so because of the pandemic and your permission expires between 1 January 2021 and 28 February 2021 you can apply for additional time to stay, called ‘exceptional assurance’. This is not a grant of leave but is a short-term protection against adverse action or consequences after your leave has expired. The conditions under exceptional assurance will be the same as your most recent period of leave e.g. if you had the right to work, this will continue under exceptional assurance. If you did not have the right to work, you will not acquire it. Exceptional assurance can be requested by emailing the Coronavirus Immigration Team.
If your permission expired between 24 January 2020 and 31 August 2020 there will be no future adverse immigration consequences if you didn’t make an application to regularise your stay during this period. If you still have not applied to regularise your stay or submitted a request for an exceptional assurance you must make arrangements to leave the UK.
9. I am in the UK as a visitor but want to switch to a work or family visa category. Do I have to leave the UK to do so?
Those in the UK as a visitor would usually be required to leave the UK in order to make an application under a work or family route. Due to the pandemic and current lockdown, however, visitors can temporarily switch category from within the UK. You will not be able to start work until your visa application has been granted.
10. Under the new rules, what should directors and senior employees consider to ensure they can come to the UK to stay or to work?
Directors of UK subsidiaries who are EU nationals and travel regularly between the UK and EU need to consider their position after 1 January 2021. Depending on how much time they spend in the UK, their activity and whether they have visited the UK during 2020, their options for coming to the UK differ.
What are the top questions to consider?
Those in the categories above could consider the following in order to enter or extend their stay in the UK:
i. EU Settlement Scheme for UK residents before 31 December 2020
If the director has been living in the UK before 31 December 2020 and intends to reside mainly in the UK, the quickest and cheapest option for them to retain their right to work and live in the UK is to apply under the EU Settlement Scheme.
ii. What if the director lives outside the UK but needs to travel in regularly and work here?
The Frontier Worker Permit for a continuation of work visits to the UK is likely to be suitable. Frontier working comes in all different shapes and sizes; e.g. a worker could be a French employee of a multinational company sharing their time between offices in Paris and London. Or a non-Irish EEA national living in the Republic of Ireland, working on a regular basis over the border in Northern Ireland: they come to the UK regularly to work, so they need to have the right to work in the UK and a possibility to have this permit extended if necessary in the future. In this case, the best option is to obtain a Frontier Worker permit for five years (for employees) or two years (self-employment) with a possibility to extend it further.
iii. Entry as a business visitor
If the director is not required to complete any work in the UK, they may consider coming to the UK on a standard visitor route. However, only particular activities are permitted if entering as a business visitor, including attending meetings, conferences, seminars, interviews, giving talks, negotiating and signing deals and contracts, carrying out site visits, and similar. We strongly advise you to check before travel that the activities considered qualify under the business visitor route, or risk enforcement action, or being refused entry upon arrival.
iv. Skilled Worker or Intra-Company Transfer Visa
Under the new points based immigration system these routes may be suitable and applicable for EU national directors who have not been employed or engaged in the UK before 31 December 2021, or if, for any other reason, they are not eligible for any of the post-Brexit related routes for EU nationals, but need to come to the UK for work in/after 202.In that case, they will need to apply for a work visa under the recently amended points based system.
If you have any questions about these issues in relation to your own organisation, please contact a member of the team or speak with your usual Fox Williams contact.
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