The right to work in the UK after Brexit

An employer may only take on an individual to work if they have the right to work in the UK. This article by Stuart Chamberlain is intended as a general guide and update on the right to work in the UK for employers.

The need to resolve the position of EU nationals working in the UK after the UK officially leaves the EU on 29 March 2019 has become a priority issue in the negotiations about the terms on which the UK leaves.

This article examines the following categories of those who seek to work in the UK and their eligibility requirements.

  • British and Commonwealth citizens.

  • EU, European Economic Area (EEA) and Swiss nationals, including the plans for “settled status” after Brexit and the implications of a “no-deal” Brexit.

  • Nationals from outside the EU seeking work in the UK.

  • The obligations on employers to check the right of their workforce to work legally in the UK and the regime of penalties and fines for illegal working.

British and Commonwealth citizens

British citizens, whether this citizenship is acquired by birth or descent, can automatically settle and work in the UK. British citizenship can also be acquired by naturalisation — five years’ residence, or three years if married to a British citizen.

Some Commonwealth citizens have “the right of abode” in the UK — this means that they have rights to the same treatment as British citizens although they cannot hold a British passport and do not have the right of free movement in the EU.

Those Commonwealth citizens without a right of abode need permission to enter the UK.

Immigration from the EU/EEA

Some 3.7 million people living in the UK are citizens of another EU country. This represents 6% of the population. Polish is the largest EU nationality in the UK, followed by Romanian and Irish nationals.

One of the potential problems identified for the post-Brexit period is the shortage of necessary labour in production-based industries; for example, the need for seasonal workers from Eastern Europe in the agricultural sector, particularly pickers in summer.

Agreement over the rights of EU citizens living and working in the UK (and over the rights of UK citizens in the EU) was a precondition of progress in the negotiations over the UK’s “divorce” from the EU. Some agreement on these citizens’ rights after Brexit (the EU Settlement Scheme) has now been achieved — although it is all subject to final agreement with the 27 other EU nations.

EU and EEA — a reminder

The EU operates an internal (or single) market which allows free movement of goods, capital, services and people between Member States. The EU countries are: Austria, Belgium, Bulgaria, Croatia, Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and, currently, the UK.

The European Economic Area (EEA) includes the EU countries listed above plus Iceland, Liechtenstein and Norway. It allows them to be part of the EU’s single market. Switzerland is neither an EU nor EEA member but is part of the single market — this means Swiss nationals have the same rights to live and work in the UK as other EEA nationals.

Brexit and settled status

As part of Brexit negotiations, the EU and the UK have now agreed in principle to a transition period during which the free movement of EU workers will continue. The agreed transition period will run from 29 March 2019 — assuming this is the day the UK will leave the EU — through to 31 December 2020. This permission is also extended to resident nationals of Norway, Iceland, Liechtenstein and Switzerland. Irish citizens residing in the UK will not need to apply for settled status to protect their entitlements, as the rights of British and Irish citizens in each other’s countries are rooted in the Ireland Act 1949.

Other factors will come into play if the UK leaves the EU without an agreement — see “No-deal” Brexit below.

The agreement — the EU Settlement Scheme

Three different processes apply, dependent on when the EU national arrived in the UK.

  1. EU/EEA nationals who arrived in the UK by 29 March 2019 and have lived in the UK for five years will be allowed to stay indefinitely by applying for “Settled Status”. Once granted, it will mean that individuals can live, work and enjoy the benefits of living in the UK indefinitely. They will be able to apply for British citizenship once they are eligible to do so.

  2. EU/EEA nationals who arrived by 29 March 2019 but have not been in the UK for five years will be able to apply for temporary status (or “Pre-settled Status”) to remain in the UK until they have reached the five years’ threshold, they will then be able to apply for Settled Status. Once granted, it will enable them to live in the UK indefinitely.

  3. Those who arrived in the UK after 21 March 2019, ie during the “implementation” or “transition” period. The Government announced in February 2018 that these individuals will be required to register, a common process in other EU nations. Thereafter, these workers will apply for temporary status until they have been in the UK for five years. They may then apply for indefinite leave to remain.

Close family members (spouses, partners, dependent children and grandchildren, and dependent parents and grandparents) will be able to join EU citizens after Brexit, where the relationship existed on 31 December 2020.

The Home Office provided further details about the scheme in its document Statement of Intent in July 2018. This provides the latest information about the issue — presuming, of course, that the UK does actually leave the EU and the Union agrees to the exit arrangements. As the EU representatives have repeatedly pointed out: “nothing is agreed until everything is agreed”. So, there will be no changes to the present rights of EU nationals and their family members until the end of the implementation period on 31 December 2020.

The Government has stated firmly that EU citizens will not have any automatic right to work in the UK after the Brexit transition period. They will be subject to a new immigration policy — see details on the White Paper below.

Therefore, unlike current EU law on freedom of movement of labour, all EU citizens will be required to obtain, as a legal basis for their continued residence in the UK , either Settled Status, Pre-settled Status or registration as applicable depending on when they arrived in the UK.

The “Settled Status” process

The Government has promised that the process will be “streamlined, quick and as user-friendly” as possible and is free to apply. Any citizen applying for Settled Status will need to complete these steps.

  • Prove their identity — provide an identity document and a recent photograph to confirm identity and nationality.

  • Show that they live in the UK.

  • Declare that they have no serious criminal convictions.

The Government has stated that it will apply “a light touch” during these processes; that EU citizens and their families will have at least two years to apply for a new status in the UK. During this time period and until their applications are decided, they will enjoy their current residence rights. The Government has put on record that the conditions for obtaining the UK Settled Status will be at least as generous as those presently laid down in EU law to obtain permanent residence. Some leniency will be provided where an EU/EEA national fails to obtain the necessary documentation before a deadline.

Once an applicant obtains Settled Status, this will be issued to them in digital form. No physical document will be issued.

There are two stated grounds for refusal of an application for Settled Status.

  1. The applicant was not resident in the UK by 31 December 2020 — the end of the transition period.

  2. Serious criminal convictions and a fraudulent application.

Implementation

The process will be open to all applicants from 29 March 2019. There will be no quotas for application. Those wishing to apply under the scheme will have until June 2021 to make their applications. Until then their rights remain unchanged, provided that they were resident in the UK by December 2020.

In the event of a “no-deal” Brexit

In the event that the UK leaves the EU without an agreement (a “no-deal” Brexit), the Government would end the free movement of people as soon as possible.

In such circumstances, the Government has said that it will continue to use the EU Settlement Scheme, but EU citizens will now be subject to a different transition period. They will need to be resident in the UK by 29 March 2019 (instead of 31 December 2020 and would have to apply for Settled Status by 31 December 2020 (instead of 30 June 2021).

From 30 March 2019, EU citizens and their families arriving after a “no-deal” will be able to come to the UK to visit, work or study for a period of up to three months. If they wish to stay longer, they will need to make an application for Temporary Leave to Remain. If successful, they would be entitled to stay for three years.

Any further period of stay in the UK would be subject to an application under the Government’s skill-based immigration system — the subject of the recent White Paper (see A future immigration policy below).

Immigration from outside the EEA/EU

If an individual does not fall into any of the above categories described above they will require permission to enter or remain in the UK through a visa. In most cases, leave to enter the UK will only be granted for a limited period. This period of limited leave may also be subject to restrictions, notably relating to the type or amount of work that can be done — the Points-based System (PBS) — see below. The PBS comprises five tiers or visa categories and has detailed requirements in terms of sponsorship and compliance.

Under the PBS, migrants must pass a points assessment before they can get permission to enter or remain in the UK. Each of the system’s four current tiers has different points requirements — the number of points the migrant needs and the way the points are awarded will depend on the tier. Points are awarded to reflect the migrant’s ability, experience and age and, when appropriate, the level of need in the migrant’s chosen industry.

The PBS consists of five tiers or visa categories.

Tier 1

This visa category is for “high value” migrants with significant interests and funds to set up businesses or invest in the UK. It covers entrepreneurs, investors and those of “exceptional talent” (eg in science, the humanities, engineering, digital technology, medicine, television and film, fashion or the arts). It is limited to 1000 places a year.

The Government has announced that it will introduce a new visa route — Start-up visas — in 2019 for entrepreneurs, particularly in the technology sector, who want to start a business in the UK. The Home Office will provide further details of this in due course.

Tier 2

There are two main subcategories of this tier — General and Intra-company Transfer — as well as a Graduate Trainees category.

Tier 2 (General)

This category allows employers to sponsor (see below) skilled workers from the non-EEA area to fill a suitable job vacancy. It is the main route of immigration for skilled workers coming into the UK. All applications must have a Certificate of Sponsorship (CoS). Generally speaking, this visa category caters only for jobs that are classed as “graduate level” or above and pay a minimum of £30,000 a year. There is also an English language requirement.

An eligible worker may come to the UK for a maximum of five years and 14 days, or for the time given on the CoS plus one month, whichever is the shorter.

Tier 2 jobs must usually be advertised to workers from within the EEA before that post can be offered to non-EEA workers, unless the job is on the Tier 2 Shortage Occupation List (eg doctors and nurses), through the Resident Labour Market Test.

There is an annual quota of 20,700 restricted CoS which is subdivided into monthly allocations. These monthly allocations have been oversubscribed since December 2017. Applicants were regularly refused which meant employers were unable to recruit skilled staff. Priority was given to those on the shortage occupation list, those with PhD qualifications and those with salaries of more than £50,000. From July 2018, doctors and nurses were excluded on a temporary basis from the annual quotas. As NHS staff make up 40% of all Tier 2 places, this should free hundreds of places for restricted CoSs for skilled workers in other areas, such as engineering, teaching and IT.

Tier 2 (Intra-company transfer)

This visa is for transfers of 12 months or more into a role that cannot be filled by a new UK recruit.

Applicants for both Tier 2 types of visa, in addition to any costs associated with the sponsorship process or any relevant legal fees, are also subject to the:

  • Immigration Skills Charge — £1000 per migrant for large and medium-sized sponsors, £364 for small organisations and charities

  • Immigration Health Surcharge increased on 1 January 2019; it now stands at:

    • £400 per year for all visa and immigration applications, for example £2000 for a five-year visa

    • £300 per year for a student or Tier 5 Youth Mobility Scheme visa, for example £600 for a two-year visa; dependents usually need to pay a similar amount as the applicant.

In addition, Tier 2 (General) workers sponsored in education, health and social care sectors must provide a Criminal Record Certificate for themselves and any adult dependants. Such a certificate is required from any country where the individual has lived for 12 months or more in the last 10 years.

Tier 2 (Graduate trainees)

This visa is for transfers into graduate trainee programmes in specialist areas and roles. It is not subject to the Immigration Skills Charge or the Immigration Health Surcharge.

Tier 3

Is suspended.

Tier 4: Student visas

These visas allow people from outside the EEA to enter the UK as a student, usually at a school, college or university. The students must spend at least 15 hours a week in study and must be able to meet the cost of the course, their maintenance and accommodation without working. The sponsor must be an education provider.

Tier 5: Temporary visas

These visas allow entry to work in the UK in a range of circumstances: notably, as charity workers, entertainers, diplomatic staff and sportsperson. They need a CoS — see below.

Tier 5 also includes a Youth Mobility Scheme, which operates for workers aged 18–30 from a limited number of countries for individuals who wish to work and live in the UK for up to two years.

Applications

The application process, eligibility criteria and conditions attached to leave to remain vary between different points-based visa categories. Tiers 2, 4 and 5 require separate applications to be made by the sponsor (employer) and the individual applicant.

  • The employer/sponsor must apply for a licence to sponsor migrants under the relevant tier and be put on the register of licensed sponsors — see below.

  • The migrant must apply to UK Visas and Immigration (UKVI) for a visa to come to the UK in the relevant immigration category. They must also demonstrate that they meet the relevant criteria, including a job offer from a licensed sponsor in the UK.

Other categories in the PBS may only require the migrant to apply to the UKVI for a visa.

Certificates of sponsorship

An employer who wishes to bring individuals from outside the EEA into the UK to work under Tier 2 or Tier 5 needs to be a licensed sponsor. CoSs are obtained from the Home Office. The process involves the employer submitting a number of documents through an online portal and explaining the reasons for the sponsorship licence. There are ongoing reporting and record-keeping requirements and penalties for non-compliance. These sponsors are responsible for issuing CoS to migrants and for ensuring that their sponsoring obligations are met.

The Home Office has broad powers to revoke a sponsorship license. Practical information about applying for a visa under the PBS is available from the “visas and immigration” section of the GOV.UK website.

Preventing illegal employment

All employers, irrespective of size or sector, are required under the Immigration Act 2016 to carry out checks to prevent the employment of illegal workers. This means that all employers should check any document which is acceptable for showing permission to work — see Acceptable Documents below. The employer will commit a criminal offence if it knows or has reasonable cause to believe that it is employing an illegal worker — see the following section on Penalties for Employment Illegal Workers.

Conducting checks

By obtaining, checking and copying the appropriate documents and recording the outcome, the employer will prevent liability for a civil penalty. The Home Office’s 2017 guidance, An Employer’s Guide to Right to Work Checks, recommends three basic steps to an employer conducting a right to work check.

  1. Obtain — obtain original versions of one or more acceptable documents — see below.

  2. Check — check the document’s validity in the presence of the holder.

  3. Copy — make and retain a clear copy (of the passport and all other relevant documents such as the Biometric Residence Permit).

Note:

These copies should be retained for not less than two years after the employment has ended.

Acceptable documents

The documents that demonstrate that an individual has the right to work in the UK are set out in two lists — List A (documents relating to a permanent right to work) and List B (documents relating to a temporary right to work in the UK). These lists are reproduced in Annex A to this Bulletin.

If the employer conducts the right to work checks on these documents, it will establish a statutory excuse for the duration of that person’s employment.

Penalties for the employment of illegal workers

It is a criminal offence to employ an illegal worker. And, as well as penalising the employer, the Immigration Act 2016 allows proceedings to be brought against individual illegal workers.

From 12 July 2016, the following penalties apply under the Immigration Act 2016.

  • The maximum penalty for the employing of an illegal worker is £20,000. To avoid paying such a penalty, an employer will have to show that they carried out a proper pre-employment check and, if required, follow-up checks during the worker’s employment — see the preceding section. An employer however, will not avoid paying the penalty if it knew at any time during the worker’s employment that their employment was illegal.

  • The penalty for an employer who has reasonable cause to believe that an individual is not entitled legally to work in the UK will be a maximum five-year prison sentence and/or an unlimited fine.

Note:

The threshold for criminal liability in employing illegal workers is lowered from knowingly under the 2006 legislation to reasonable cause to believe under the Immigration Act 2016. The employer will no longer have the protection from prosecution that it did not know explicitly that the individual did not have legal permission to do the work in question.

The employer will continue to have a “statutory excuse” from civil or criminal liability if it can prove that right to work checks were carried out before the individual started work in the UK.

Powers of search

Immigration officials have enhanced powers under the 2016 Act to search for documents (including those in electronic format) in connection with a civil penalty and where they have reasonable grounds to believe that the employer is in breach of the legal duty to prevent illegal working.

They also have powers under this legislation to close the employer’s premises for up to 48 hours where they are satisfied on reasonable grounds that the employer is hiring an illegal worker and that the employer (or a person connected with the employer) cannot provide evidence that the correct checks have been carried out, if the employer (or a person connected with the employer) has:

  • previously been convicted of employing an illegal immigrant

  • had a civil penalty notice issued to them in the previous five years

  • not paid a civil penalty notice issued to them.

A Code of Practice, entitled Civil Penalties for Employers, specifies the factors to be considered by the Secretary of State when they determine the amount of a penalty to be imposed on an employer.

Criminal offence of being an illegal worker

The Immigration Act 2016 also introduced a new criminal offence of being an illegal worker. From 12 July 2016, this offence carries a custodial sentence of up to six months or an unlimited fine. The illegal worker’s wages may be seized under the Proceeds of Crime Act 2002.

Reporting (“naming and shaming”)

Since 10 February 2012, the Home Office has published quarterly reports detailing the penalties given to people or organisations who employ illegal workers. In the 2015–2016 financial year, civil penalties were issued to 2594 employers who had used illegal workers.

Tips for employers for compliance

The Home Office suggests that employers follow three “simple steps” in checking the right of someone from outside the EEA to work in the UK.

  1. Obtain the employee’s original identity documents listed in the Home Office guidance through www.gov.uk.

  2. Check the documents are valid with the employee present.

  3. Copy and keep the documents securely — record the date of the check.

Remember that there may be implications for the individual’s right to work in the UK if they have a changed role in the organisation.

Ensure that the contractual documentation provides an express right to terminate the employment if the employee is not entitled to work in the UK.

If the employee is involved in a TUPE transfer (under the TUPE Regulations 2014), the right to work check must be completed within 60 days of the transfer.

A future immigration policy?

The long overdue White Paper on immigration was published in December 2018. It adopts many of the recommendations set out in the Migration Advisory Committee (MAC) report on EEA migration in the UK, which was published in September 2018.

As expected, the Government intends to end the free movement of EU citizens to live and work in the UK following Brexit. Instead, it will put in place what it describes as a “flexible” skills-based system which favours skilled workers. The Government emphasises that it is keen to limit the access of low-skilled workers to the UK and to create a level playing field between EU and non-EU workers in respect of access to visas to work in the UK. Net migration is to be reduced to “sustainable” levels.

From 1 January 2021, the following main provisions will apply to the “skills-based” immigration system.

A single system will replace existing immigration rules

This will enable highly skilled/skilled migrants from around the world to work in the UK.

The Government will remove the annual cap on the numbers of visas it issues (which cause significant delays) and will widen the skills threshold to include people who hold qualifications equivalent to A levels. The Government says this will make sure “the brightest and best” can come to the UK and “employers have access to the skills that add most value to the UK economy”.

Visas will be processed within two to three weeks.

The Labour market test will be abolished

Currently, if an employer wishes to employ non-EU (migrant) skilled staff, they need to obtain a Tier 2 sponsorship licence and, unless the job is on the shortage list of occupations, comply with the Resident Labour Market Test.

The Government has said that employers with a Tier 2 sponsorship licence will not have to comply with the Resident Labour Market Test from 2021.

Plus, it looks as though employers without sponsorship licences who want to recruit skilled workers from outside the UK will be able to do so without a licence. The system will be designed to be as “straightforward” and “light touch” as possible.

Minimum salary requirements are not yet settled

To date, the Cabinet has not been able to agree on the minimum salary requirements for highly skilled workers. The Migration Advisory Committee recommended £30,000 but many businesses think this is too high.

Low-skilled workers

Low-skilled workers from outside the UK will only be able to work here on a temporary basis to cover labour shortages in specific sectors. The White Paper refers to construction and social care. There will also be a scheme for seasonal workers in agriculture and horticulture.

These low-skilled workers will be able to work here for a maximum of 12 months (with a further “cooling off” period of 12 months) and will be able to move between employers during that time.

The Government says it will work with key sectors to help facilitate the change needed to reduce future demand for low-skilled migrant labour. The MAC is presently consulting on which occupations should be included in the shortage occupation list.

What can employers do now?

There are a number of steps that an employer could consider now.

  1. Conduct an audit of the current workforce. Employers should assess their current workforce to identify how many EU employees (and family members of EU nationals) they currently employ and to ascertain how many of those individuals can meet the requirements of the EU Settlement Scheme. It would also be advisable for employers to ensure that their EU employees can provide appropriate evidence to show how long they have currently been living and working in the UK.

    On a wider scale, an employer may wish to consider how a more restrictive immigration policy after Brexit could affect its business and ability to hire the necessary workforce.

  2. Consult with EU employees.

Employers should provide reassurance to any EU employees that their rights are protected and to explain and assist with the process required to apply for Settled Status.

Training

Ensure that you and your staff are trained to understand the full extent of the organisation’s duties under immigration law, the complex process of checking, monitoring and recording documents that grant migrants the right to work in the UK and the requirements of the EU Settlement Scheme for EEA/EU citizens.

Above all, keep in touch with Brexit developments.

Conclusions

Statistics from the Office of National Statistics for 2017 show that migration from the EU to the UK (240,000) fell. This is the lowest number since early 2016 and would appear to show the impact of the Brexit vote. In particular, there was a fall in the net migration from the Eastern European countries. At the same time, there was a sharp rise (up to 311,000) in migration from outside Europe. This suggests that the challenge of getting migration down from outside Europe remains a problem for the Government.

The Government has acknowledged that leaving the EU does not mean the end of migration between the EU countries and the UK. A mantra of the negotiations between the UK and the EU is that “Nothing is agreed until everything is agreed”. The EU Settlement Scheme offers some solace for employers with potential shortfalls in labour. Uncertainty, including a “no-deal” Brexit remains.