Last reviewed 11 March 2021
Coronavirus news has dominated the headlines for the last few months, but as we saw the end of 2020, the full implications of Brexit started to become a clear reality for many. On 23 June 2016, the UK voted to leave the European Union (EU). Originally scheduled for 29 March 2019, the date the UK was to officially leave the EU was delayed to 31 January 2020, and on this date, the UK left the EU.
A withdrawal agreement was negotiated and passed by both the UK and EU Parliaments with a transition period being put into place until December 2020 so that future trade agreements could be negotiated. Despite delays caused by the coronavirus, the transitional period came to an end as the New Year dawned.
In March 2019, the UK introduced an EU Settlement Scheme to register EU nationals already residing in the UK prior to its departure from the EU. Likewise, before a localised coronavirus incident turned into the pandemic as we know it, further immigration measures were taken in the form of amendments to the already established points-based immigration system. Opeyemi Ogundeji, researcher and employment law writer at Croner-i, explores this in more detail below.
EU Settlement Scheme
EU nationals living in the UK by 31 December 2021 can continue to do so despite Brexit. The Government's EU Settlement Scheme was introduced to allow existing EU nationals residing in the UK to apply for Indefinite Leave to Remain (ILR). To make use of this scheme, employees must have been in the UK by no later than 31 December 2020, with the subsequent deadline for applications being 30 June 2021. This means that employers will be able to retain any EU nationals who are already part of their workforce (by 31 December 2020) if they apply for settled status by 30 June 2021.
Employers must not exert any unnecessary pressure on individuals or expose them to any other form of detriment if they choose not to apply for ILR status. Dismissing employees in the interim for being unwilling to apply for settled status will be potentially discriminatory. Instead, employers should consider their options if they are faced with loss of staff as their EU workers haven’t applied for ILR status — this can be in the form of awaiting further government advice or coming up with alternative options now, to deal with any potential gaps in their workforce after the deadline of 30 June.
Information released by the Government on 8 October 2020 shows that, from 30 March 2019 to the end of September 2020, over 4 million applications have been made to this scheme — almost 3.7 million of those applications came from England, 204,700 from Scotland, 67,200 from Wales, and 66,300 from Northern Ireland.
Points-based immigration system
From 1 January 2021, EU and non-EU citizens entering the UK are treated in the same way when they are seeking to work in this country. While there will be several routes they can seek to take in order to come and live in the UK, the route that the majority are expected to use is the “skilled worker route”.
Under this new system, non-citizens who seek to work in the UK, following the end of EU free movement on 31 December 2020, will need to attain 70 points in relation to specified criteria. 50 of these points are mandatory, whilst 20 are tradeable.
Mandatory points are awarded as follows:
Job offer from an approved sponsor — 20 points.
Job at the required skill level (RQF 3 or above (A Level and equivalent)) — 20 points.
English language to a required level (this will need to be evidenced by completing a test or having a degree in English language similar to an English bachelors) — 10 points.
In addition to this, the job offer must meet the applicable minimum salary threshold. This is the higher of either:
the general salary threshold set by the Government on advice of the independent Migration Advisory Committee at £25,600, or
the specific salary requirement for their occupation, known as the “going rate”.
Tradable points are as follows:
Salary of £20,480 to £23,039 or at least 80% of the going rate for the profession (whichever is higher) — 0 points.
Salary of £23,040 to £25,599 or at least 90% of the going rate for the profession (whichever is higher) — 10 points.
Salary of £25,600 or above or at least the going rate for the profession (whichever is higher) — 20 points.
Job in a shortage occupation as designated by the Migrant Advisory Committee (MAC) — 20 points.
Education qualification: PhD in a subject relevant to the job — 10 points.
Education qualification: PhD in a STEM subject relevant to the job — 20 points.
These new rules are likely to have an impact upon employers who have come to rely on so-called low-skilled labour from the EU. In particular, there is expected to be a knock-on effect in the hospitality and catering industries, alongside agricultural operations that make use of seasonal workers from overseas. Although the Government does appear to want to provide a degree of flexibility to tackle these potential issues — by making some requirements “tradeable”— employers should not believe that their sector will automatically meet the requirements of having a skills shortage just because they are struggling to source workers.
Crucially, employers wanting to take on foreign workers must now apply for a sponsorship licence as soon as possible.
Employers need to make sure they are ready for these changes. They represent a clear goal of reducing the number of low-skilled migrants coming to the UK and, if this is something an employer’s business relies on, they should consider steps they can take to limit the potential impact. Employers can:
encourage EU nationals already working for the business to apply for “settled status”/ILR under the EU Settlement Scheme before the deadline of 30 June 2021
provide assistance, if possible, to those who wish to apply
explore increasing the skills levels of current staff members, something that may encourage their retention and progression into roles that may be difficult to fill in future.