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Post-Brexit immigration – the new points based system

Post-Brexit immigration – the new points based system

Overview

Since 1 January 2021, the new points-based immigration system has applied equally to non-EU nationals as well as EU nationals who move to the UK to live and work. Following the end of the Brexit Transition period, EU nationals who were not resident in the UK by 31 December 2020 must now qualify for visas under the same immigration rules as non-EU nationals.

Below, we look at some of the key practical considerations for employers recruiting under the new regime.

Employer sponsorship and compliance

Under the previous immigration system, a sponsor licence was only required to sponsor the visas of non-EU employees. Now, EU nationals moving to the UK to take up work here after 1 January 2021 no longer benefit from EU freedom of movement rules so will require work visas. The most likely route is the employer-sponsored visa route, which requires employers to hold a sponsor licence if they wish to sponsor the visas of their EU employees.

The application for a sponsor licence requires employers to submit certain key documents to show they are properly established in the UK as a business, including things like evidence of a UK bank account and PAYE registration as an employer.  

Sponsors and would-be-sponsors are required by UK Visas and Immigration ("UKVI") to ensure they have adequate systems in place to meet the often technical UKVI compliance requirements. As part of a licence application, and on an ongoing basis while holding a licence, sponsor employers need to be able to demonstrate they have adequate systems and processes to ensure compliance with UKVI rules, including in relation to monitoring sponsored employees, recording keeping and reporting obligations.

The processing time for a sponsor licence is currently around eight weeks unless additional priority service fees are paid. Employers who are not currently registered as sponsors should therefore consider, sooner rather than later, whether they might need a licence to facilitate their recruitment plans. A sponsor licence is required for new hires or existing employees transferring to the UK from linked overseas offices.

Skilled worker and Intra-company visas

Under the previous immigration regime, the key sponsored visa route for new hires was the Tier 2 (General) visa route. This has been replaced by the 'Skilled worker' route.

Unlike the previous Tier 2 (General) route, the new Skilled worker route does not include a mandatory resident labour market test (i.e. the employer no longer needs to show that it cannot find a suitably qualified candidate who is a UK or EU national). A minimum salary threshold will still need to be meet and this will depend on the job type for the role, whether the role is on a specific list of roles identified as being in short supply in the UK labour market, whether the candidate holds a relevant PhD or is a recent graduate. The minimum salary required for a Skilled worker visa is generally £25,600 but many roles have a higher job-specific threshold.  There is now no annual cap on numbers and the minimum skill level has reduced from RQF 6 (broadly bachelor's degree level) to RQF 3 (broadly A level) so as to include a wider pool of jobs. An English language requirement will also need to be met.

For employers with multi-national operations, the old Tier 2 (Intra Company Transfer) visa used to allow businesses to move staff from overseas linked entities to work in the UK on a temporary basis. This has now been replaced by the Intra-company visa route. The skill level for the Intra-company visa is higher, RQF 6 (broadly bachelor's degree level) so there will be roles which qualify for Skilled worker visas which will not qualify for Intra-company visas. The Intra-company route does not include an English language requirement but is strictly temporary and, generally, a cap applies of no more than five years spent in the UK under this route in each six-year period (unless the individual is a high earner).

Applicants in the UK with short term visas (e.g. Intra-company visas or Tier 5 Youth Mobility Scheme visas) are now able to submit their applications to 'switch' into the Skilled worker visa route in the UK without having to return to their home country to apply.

New Graduate and non-sponsored work route

The new 'Graduate' post study work route is set to launch from 1 July 2021 to allow international graduates studying in the UK to stay in the UK to work for the first two years after their degree. Such individuals will be allowed to work in any job, at any skill level, without needing employer sponsorship.

The Government has also said that it intends to introduce an unsponsored route to allow a small number of the most highly skilled workers to come to the UK without a job offer in future – this route is expected to open in 2022 and very few details of the route are currently available.

Costs and budgeting

Application fees for EU nationals under the new system represent a significant increase on the fees that applied under the old immigration regime. Fees will generally be at the same levels for EU nationals and non-EU nationals applying under the new points-based regime.

The sponsor licence application fee is currently set at £1,476 for medium and large companies. Each time the employer wants to sponsor a visa, it must pay the cost of a certificate of sponsorship (CoS) which is set at £199 for non-EU nationals and some EU nationals (although many EU nationals are exempt from the CoS fee). Employers must also pay the Immigration Skills Charge, which is set at £1,000 per sponsored employee per year of the visa applied for. The visa application fees will range from £610 to £1,408 depending on where the application is being submitted and the duration of the visa. The Immigration Health Surcharge fee will also need to be paid at the rate of £624 per person per year of the visa (including any dependants), with a discounted rate applicable to children. Lower fees will apply for small companies and charities as well as employers sponsoring individuals for recognised skills shortage roles. However, the sponsored visa fees are significant and should be factored into any recruitment exercise.

Key steps for employers

We have been working with clients to help them navigate the new immigration regime, including assisting with the following projects:

  • applying for sponsor licences for employers to facilitate future requirement for non-EU and EU nationals under the new regime;

  • advising on compliance audits of immigration records, including reviewing and helping to roll out systems and processes for sponsorship compliance;

  • providing training on right to work and sponsorship compliance to HR and recruitment teams responsible for undertaking checks and maintaining records; and

  • supporting strategic planning projects on recruitment processes and policies.

We continue to work with clients to support the full range of business immigration requirements so please do get in touch if you would like to discuss.

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This briefing was originally published in March 2020 and has been updated to account for the latest developments in this area.

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