FAQs on employing foreign nationals post-Brexit

The FAQs below detail everything organisations need to know regarding the employment of foreign workers following our exit from the EU. This information is being continually checked and updated.

These FAQs explore the position with EU citizens (which is the label used within it to refer to EU/EEA/Swiss citizens) who arrive in the UK before and after 31 December 2020.

Impact of Brexit?

The term “Brexit” refers to the UK’s departure from the European Union (EU). Following a referendum which took place on 23 June 2016, the majority of the UK voted to leave the EU. After a series of delays, the exit eventually took place on 31 January 2020. A transitional period was in place until 31 December 2020.

The main impact of Brexit in employment law terms will be seen in the recruitment process as immigration laws change. Employers are already under an obligation to take steps to ensure a worker’s right to work in the UK and this process is altered because of Brexit.

“Free movement of persons” which permitted all EU citizens, as well as those from Iceland, Liechtenstein and Norway (EEA countries) and Switzerland to live and work in the UK ended on 31 December 2020.

Between 1 February 2020 and 31 December 2020, EU/EEA/Swiss citizens were still able come to the UK to work without having to obtain permission before their arrival. From 1 January 2021, the transition period, and so free movement, ended. This means that EU/EEA/Swiss citizens arriving in the UK need to gain permission to work in the UK, as is currently the case with non-EU/EEA/Swiss citizens.

This guidance explores the position with EU citizens (which is the label used within it to refer to EU/EEA/Swiss citizens) who are already in the UK, who arrived until 31 December 2020 and who arrived in the UK from 1 January 2021.

What are the potential consequences for employing foreign nationals unlawfully?

Employers are under a legal duty to prevent illegal working and you can be subjected to penalties where you fail to do so.

There is a civil penalty in place where the employer can be fined a maximum of £20,000 per worker who does not have permission to carry out the work they are employed to do. Under the civil penalty scheme, an immigration officer who believes the organisation is employing an individual who does not have the correct permission to work can issue a notice imposing the fine.

To gain a “statutory excuse” against the civil penalty, you need carry out right-to-work checks in accordance with the Home Office's checking process. You should also only make offers of employment conditional upon successful right-to-work checks.

A criminal offence will be committed if you employ an individual and you have “reasonable cause to believe” they do not have the right to work in the UK.

From 29 January 2019, employers can rely on the Home Office's online right-to-work checking service to be granted the statutory excuse. Where the service can be used to check an individual's immigration status, no further documentary checks will be required. This is to remain in place after 1 January 2021.

Does Brexit affect EU citizens I already employ?

Yes. EU citizens who are currently working for you, or who you recruit by 31 December 2020, need to take action to gain permission to remain in the UK. This applies unless they have already been granted indefinite leave to remain (ILR) or are from Ireland. Employees must apply to the EU Settlement Scheme. Successful application guarantees the right to continue living and working in the UK indefinitely.

How does the EU Settlement Scheme work?

Applications for the EU Settlement Scheme opened in March 2019 and had an initial deadline of 30 June 2021. However, applications can be made after this deadline within a defined period. More information on this is provided in our Recruitment and Selection section. Individuals must be in the UK by 31 December 2020 to apply. Anyone arriving from 1 January 2021 onwards is not eligible to apply.

Successful applicants who have five years' continuous residence in the UK at the time they make the application will be granted “settled status” meaning they will have indefinite leave to remain in the UK. Five years' continuous residence is gained when someone has lived in the UK, the Channel Islands or the Isle of Man for 6 months in any 12-month period for five years in a row, with some exceptions.

Those who are in the UK by 31 December 2020, but do not have five years' continuous residence by the date they apply, will get “pre-settled status”, which allows them to stay in the UK until they have reached the five-year residence point, ie it allows them to stay for a maximum of five years and then they can apply for settled status.

How should employees apply to the EU Settlement Scheme?

Applications for the Scheme are made from the GOV.UK website. It is free to apply.

Applicants will need to provide a valid passport or valid national identity card, alongside a digital photograph of their face. In the absence of these, alternative evidence may be provided in certain situations. Applicants can:

  • scan their document and upload their photo using the “EU Exit: ID Document Check” app using an Android phone, or an iPhone 7 or above

  • send their document in the post and upload their photo using the online application.

This evidence will need to be provided again to switch from “settled” to “pre-settled” status.

Individuals can provide their National Insurance number for an automated check of their residence based on tax and certain benefit records. If this check is successful, the individual will not need to provide any further documentation. If not, the Home Office will notify them of the further information required instantly.

Please click here for a model letter to send out to employees on how they can apply for the scheme.

Are there situations where “settled status” may be refused?

The Government has remained clear that the majority of applications for “settled” or “pre-settled” status under the EU Settlement Scheme will be accepted. However, the main reason they may be rejected is if the individual has committed serious or repeated crimes and/or poses a major security risk.

Applicants will be asked to declare any criminal convictions that appear in their criminal records, either in the UK or overseas. Individuals will also be checked against the UK's criminal database. If they have been to prison, they will usually need to have five years' continuous residence from the date of their release.

Individuals will not be asked to disclose spent convictions, cautions or alternatives to prosecution, such as speeding fines.

What will a successful applicant receive?

Successful applicants will be sent an email confirming their status and the date it was granted with a unique reference number rather than a physical document. It usually takes around five working days for complete applications to be processed if no further information is required, but it can take up to a month.

Successful applicants can obtain a “share code” to prove their immigration status to employers through the Government website. Share codes can be used for prospective employers to check online if a job applicant has the right to work in the UK.

How can I make sure my EU citizen employees apply to the scheme?

Employers will no doubt be keen to make sure their employees secure permission to remain in the UK. However, it is ultimately the employee's choice whether they stay or not.

Forcing employees to apply may constitute unlawful discrimination. While it is not a legal obligation for you to inform employees about the Scheme, you may choose to encourage your employees to apply by, for example:

  • providing information about the EU Settlement Scheme, what is involved and the timeframes in place

  • allowing work IT equipment to be used to make the application

  • offering assistance when making the application to employees who are not proficient in the English language or are not confident in using IT equipment.

It will be helpful to carry out an audit of your workforce to understand which of your employees may need to apply.

Should I check that my EU citizen employees have applied to the Settlement Scheme?

Government guidance on the Scheme states that it is the responsibility of the individual to make an application. There is no requirement for the individual to inform you, as their employer, that they have applied or the outcome of their application. Likewise, you should not check that an employee has applied. This does not mean that you cannot ask the employee whether they have applied. The specific wording used by the Government — that employers should not “check” — is to prevent any form of discrimination against employees who are eligible but have not yet applied.

Prudent employers will undertake a check to ask for employees to voluntarily provide evidence that they have obtained status under the EU Settlement Scheme, alongside a reminder that applications must be made to the Scheme by 30 June 2021.

The implications for an employee who needs to apply, but does not, are not yet clear and it is hoped that forthcoming guidance will provide clarity.

What are the rules on recruiting EU nationals under new immigration rules from 1 January 2021?

From 1 January 2021, a new points-based immigration system will come into operation which will apply to all non-British and Irish citizens. Under this system, anyone coming to the UK for work must meet a specific set of requirements for which they will score points. Visas are then awarded to those who gain enough points.

There will be various routes available for entry to the UK to work, including:

  • " skilled worker

  • " intra-company transfer

  • " health and care visa

  • " start up and innovator

  • " global talent visa

  • " graduate.

Do I need to apply for a sponsorship license?

Employers that wish to employ non-UK and Irish nationals must have a sponsorship licence to do so.

Employers can sponsor an employee only if the role meets the minimum requirements. An employer who is sponsor can issue sponsorship certificates to foreign nationals who will then use it as part of their visa application.

How do I get a sponsorship licence?

Sponsorship carries certain eligibility requirements. You must not have any unspent convictions for immigration offences or certain other crimes, such as fraud or money laundering. You must not have had a sponsorship licence revoked in the previous 12 months.

You should decide what licence you wish to apply for; currently, they differ depending on whether you are taking on staff temporarily or more long-term. This will need to be specified when you make your application. The longest you can sponsor a worker for is 5 years.

You will need to pay a fee to apply for a licence, which varies depending on the size of your organisation. Small companies will pay £536 for each application. Larger organisations will pay £1467 for a licence to take on long-term staff, and £536 for temporary staff. You are likely to be considered a large company if your annual turnover is over at least £10.2 million and you have at least 50 employees.

It takes an average of eight weeks to process applications. You can seek a decision from the Government within 10 days; however, this offer is limited to the first 10 applications in a day and costs an extra £500.

Licences are applied for through the GOV.UK website.