The Post-Brexit Immigration Rules

The UK officially left the EU on 31 January 2020. The Post-Brexit Immigration Rules now apply to all migrants, including those arriving from the EU. Now that the Home Office has announced the new rules, there are several important changes for employers and workers alike.

Unless EU citizens have a job arranged, they no longer have the right to come and work in the UK. They will have to come within the Immigration Rules and, as a result, the routes for sponsored workers have widened somewhat.

Here we will consider the position for sponsored workers, employers, Representatives of Overseas Business and EU nationals.

The previous Immigration rules

The previous system meant that any worker who required sponsoring had to be supported by an individual employer. Companies had to obtain a Sponsor Licence and could then sponsor migrant workers. They were then able to bring workers from overseas branches to the UK using the Intra Company Transfer (“ICT”) route or hire from outside the company under the Tier 2 General route. Under both routes, the job had to be at degree level and meet the minimum salary requirements, among other rules.

It was usually necessary to show that no settled worker within the UK could fill the role if using the Tier 2 General route. To do that, the company had to satisfy the Resident Labour Market Test, which meant advertising the job for 28 days and showing that none of the local applicants were qualified for the post. The company then had to apply for a Restricted Certificate of Sponsorship from the allocation released monthly.

A company could then send a senior employee to the UK to set up the company using a Representative of an Overseas Business visa, if not already established in the UK. 

The Immigration rules after Brexit

Employers still need a Sponsor Licence. Businesses that have European links and have always been able to rely on free movement to bring members of their EU workforce to the UK now need a Sponsor Licence to employ new workers from Europe. The only change to the process of applying for a Sponsor Licence was the launch, on the 12 November 2020, of a priority application service costing an extra £500. Some of the new rules are beneficial for businesses employing migrants.

Tier 2 General Visas– Skilled Workers

Tier 2 General Visas, renamed the ‘Skilled Worker’ route, had the most significant changes post-Brexit. The Skilled Worker route was introduced on the 1 December 2020. New appendices were added to the Immigration Rules to deal with this, the Intra Company Transfer and Representative of an Overseas Business routes.

The main changes introduced with the Skilled Worker route are as follows:

• It is no longer needed to satisfy the Resident Labour Market Test. Instead, the decision-maker must be satisfied it is a genuine job. It is not clear whether they will conduct enquiries at the time of application or only so when they make compliance checks with the Sponsor.
• The new Rules state that the decision-maker must not have reasonable grounds to believe the job being sponsored does not exist, is a sham, or has been created mainly so the applicant can apply for entry clearance or permission to stay.
• The cooling-off period, which meant that Tier 2 Migrants would have to leave the UK for 12 months at the end of their visa, has been dispensed.
• The monthly allocation process for Restricted Certificates of Sponsorship has also been removed. There is no cap on the number of visas that can be granted. Sponsors will now be able to apply for Defined Certificates of Sponsorship and the Home Office state that they intend to give decisions within one day.
• The minimum skill level has been reduced from degree level to A level qualified jobs. Roles still need to be fitted into the Home Office’s SOC code syste, where different roles are given a specific code. The Home Office will refuse the application if the applicant uses the wrong code. 
• The minimum salary, subject to those which apply to specific roles, has been reduced from £30,000 to £25,600. There are certain circumstances where a salary of £20,480 will suffice. The minimum salary needed to apply for indefinite leave to remain has also been reduced to £25,600.
• Skilled Worker visas are valid for up to five years. Under the old scheme, Tier 2 General Migrants could only stay a maximum of six years. Under the Skilled Worker route, they can have unlimited extensions. Unchanged from the old route, they are eligible to apply for Indefinite Leave to Remain after five years, provided they meet the other requirements.
• Unless someone is in the UK as a visitor, short-term student, parent of a child student, seasonal worker, domestic worker, or somebody here outside the Immigration Rules; if they are living in the UK, they can transfer into the Skilled Worker route. 

Tier 2 Intra Company Transfers

The minimum required skill level for the roles is still degree level. However, there are some beneficial changes as follows:

• The Home Office removed the cooling-off period from Tier 2 ICT. 
• It will now be possible to switch from the ICT route into the Skilled Worker route, which means that they could apply for Indefinite Leave to Remain if they met the other requirements.
• The amount of time they could stay in the UK would change to five years in a six-year rolling period or nine years in a ten-year rolling period if they earned over £73,900.

A Representative of an Overseas Business

Apart from being put into a separate Appendix in the Immigration Rules, there were no significant changes to this route, and it remains an excellent way for overseas companies to get an experienced employee to the UK to spearhead setting up their operations in the UK. Read more on obtaining Representative of Overseas Business Visas here.

EU citizens

Until 31 December 2020, EU citizens continued to enjoy freedom of movement to come to the UK. Those who arrived in the UK and started working by 31 December 2020 can apply for the settled status scheme, which means they can work or study in the UK and do not need to find a Sponsor. They have to apply by 30 June 2021. They are eligible for settled status once they have been in the UK for five years. With pre-settled status, they can spend up to two years outside the UK without losing that status. With settled status, they can leave the UK for up five years and retain their settled status.

EU citizens arriving after 31 December 2020 without having settled or pre-settled status have only two options:

• A Frontier Worker scheme for people who work in the UK but live primarily in another country. This scheme was introduced on 1 January 2021 and will only benefit those who started work prior to 31 December 2020 but were not resident in the UK and so do not qualify for settled status. After 1 January 2021, they can continue to travel to the UK for work and do not need to spend any minimum amount of time here. The permit is valid for five years, and holders can retain the status for up to two years if they become unemployed.
• EU citizens can be sponsored to come as Skilled Workers or ICT migrants.

If EU citizens want to avoid these restricted options, they must have arrived and start working in the UK by 31 December 2020.

COVID-19 and Lockdown Restrictions

Due to the recent pandemic, a third UK lockdown has been announced from 4 January 2021. This new lockdown has heavily impacted the immigration system.

Those whose visas are expiring are still expected to take all reasonable steps to leave the UK where it is possible to do so or must apply to regularise their stay in the UK. Individuals can still access Visa and Immigration services as they are considered an essential public service and, therefore, continue to operate under the national restrictions.

Employees whose visas or leave expires between 1 December 2020 and 31 January 2021 may request additional time to stay, known as ‘exceptional assurance,’ and will have to submit their request online.

If your employee lives in another country, and their Visa Application Centre is closed, they can apply for a visit visa from any UK VAC. However, they should apply for all other UK visas from the country they reside in.

If your employee’s VAC is closed due to COVID-19 restrictions, they can apply online and select a VAC in another country worldwide to submit their application and biometrics. However, they must already be permitted to travel to that country. According to the UK Government, this concession has been extended to 31 March 2021.

For further or specific queries regarding immigration that is related to COVID-19, there is now a Coronavirus Immigration Help Centre that can address them.

Get in touch for further advice and support 

If you have any queries on the post-Brexit immigration rules or how these changes impact your business, contact our team.