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IMPACT – HIGH
The Home Office has released additional guidance for employers on employing EU, EEA and Swiss citizens in the U.K. after the end of the Brexit transition period.
Key Points:
Background: The U.K. left the European Union on Jan. 31, triggering a transition period ending on Dec. 31. Freedom of movement will end Jan. 1, and the U.K. will have a new immigration system, applicable to both European and non-Europeans alike.
While EU, EEA and Swiss citizens already living in the U.K. by the end of the transition period are able to secure their status in the U.K. using the EUSS (with a deadline of June 30, 2021), those arriving from Jan. 1 will have to apply under the new immigration system.
Analysis & Comments: The new guidance is welcome, as it provides further clarity on a range of right to work obligations for businesses employing European nationals from Jan. 1.
The new guidance also raises a questions, however, surrounding what documentation can and cannot be requested, particularly for new European hires from Jan. 1.
It is clear that any EU, EEA or Swiss national who is already employed in the U.K. by Dec. 31 will not require a retrospective right to work check. While these individuals are nonetheless required to apply under the EU Settlement Scheme (“EUSS”) by June 30, 2021, employers cannot require them to demonstrate they have made the application.
For new hires from Jan. 1, it is clear than any EU, EEA or Swiss citizen not resident in the U.K. will require sponsorship under the new immigration system prior to starting employment.
For new hires of any European nationals already residing in the U.K., while these individuals may have already applied under the EUSS (and are required to do so by June 30, 2021), employers cannot require them to show any status granted under the EUSS until after June 30, 2021.
The guidance is therefore very clear on the requirements for right to work checks on EU, EEA and Swiss new hires between Jan. 1, 2021 and June 30, 2021. Employers can check the job applicant’s right to work as they do now, by viewing either the passport or national identify card, or conducting an online check.
Crucially, employers cannot discriminate and refuse to employ an EU, EEA or Swiss national on the basis they have not yet obtained a status under the EUSS until after June 30, 2021.
Further, employers can be assured they will have a full statutory defense against any illegal employment even from just the passport copies for this population. Retrospective checks are not required on existing employees.
Nonetheless, employers should still be encouraged to provide regular communications to their employees to remind them to apply under the EUSS by June 30, 2021. In fact this approach is encouraged by the Home Office, who have provided an “Employer Toolkit” to provide signposting to businesses to help support their European citizen employees to stay in the U.K.
While the employer will have followed all the right to work guidance to establish a statutory defense should any employee not have made the application by June 30, 2021, the individuals in question nonetheless require the status to continue lawfully residing in the U.K. Apart from the right to work, holding status under the EUSS is also required for accessing the NHS, schooling, travelling in and out the U.K., banking and renting a property, for instance.
In summary:
As a final consideration, it remains to be seen if any retrospective checks on holding a status under the EUSS will be required after June 30, 2021, in particular for those individuals hired between Jan. 1 and June 30, 2021. Further guidance is expected to be released by the Home Office as we approach the end of the ‘grace period’ ending on June 30, 2021.
In the meantime, employers can be reassured that in fact the requirements for right to work checks on European nationals from January 2021 are perhaps less onerous than may have been anticipated. Indeed, in effect the right to work check process essentially remains unchanged until after June 30, 2021, notwithstanding the fact new European hires that are not resident in the U.K. will require working permission under the new immigration system.
Rest of World Source: Deloitte. Deloitte refers to one or more of Deloitte Touche Tohmatsu Limited (“DTTL”), its global network of member firms, and their related entities. DTTL (also referred to as “Deloitte Global”) and each of its member firms are legally separate and independent entities. DTTL does not provide services to clients. Please see www.deloitte.com/about to learn more. Deloitte Legal means the legal practices of Deloitte Touche Tohmatsu Limited member firms or their affiliates that provide legal services. For legal, regulatory and other reasons, not all member firms provide legal services. This includes Deloitte Tax LLP in the United States which does not provide legal and/or immigration advice or services. This communication contains general information only, and none of Deloitte Touche Tohmatsu Limited, its member firms or their related entities (collectively, the “Deloitte network”) is, by means of this communication, rendering professional advice or services. Before making any decision or taking any action that may affect your finances or your business, you should consult a qualified professional adviser. No entity in the Deloitte network shall be responsible for any loss whatsoever sustained by any person who relies on this communication. © 2020. For information, contact Deloitte Touche Tohmatsu Limited.
What is the change? The United Kingdom has introduced two new student visa programs to replace the old Tier 4 route.
What does the change mean? Applications are now being accepted for the new Student and Child Student visa route. There is no cap on the number of visas available every year, and the visas will be available to non-EEA and EEA applicants alike.
Background: The U.K. hopes the new system will streamline the application process for international students. In order to qualify for visas, applicants are required to reach at least 70 points under the new criteria. Applicants can obtain these points by providing an offer from an approved educational institution, reaching the requisite English ability and showing they are able to support themselves financially while studying in the U.K. The points system will also ease some documentation and maintenance requirements for students, and will make it easier for some students to apply for different immigration permissions without leaving the U.K. Analysis & Comments: The new student visa programs are designed to simplify student visa applications and the lack of a cap on the number of visas should encourage more international students. While applications will be accepted now from non-EEA nationals, both non-EEA and EEA nationals may apply for the visas once free movement ends on Jan. 1.
The UK Visa and Citizenship Application Services have resumed normal operations.
Analysis & Comments: The response to the COVID-19 pandemic continues to develop, and Deloitte will provide additional updates as information becomes available. Please check Deloitte’s COVID-19 Digital Map, available here, for information on travel restrictions and immigration changes in other countries.
The Home Office and UK Visas and Immigration have issued new guidance for frontier workers who want to continue working in the U.K. after the Brexit transition period comes to a close.
Frontier workers are EU, EEA or Swiss nationals who are employed or self-employed in the U.K. but live outside of it. The U.K. will switch to a new points-based immigration system on Jan. 1, 2021, when the Brexit transition period ends. Frontier workers who want to begin work in the U.K. after Jan. 1, 2021, will be required to apply for work authorization under the new points-based system, but those who have previously worked in the U.K. as a frontier worker will, in many cases, be able to maintain their status. Key Points:
Analysis & Comments: Employers with employees who live in another country are encouraged to work with Deloitte to make sure those who are eligible to maintain their status do so and obtain the necessary frontier worker permit by the July 1, 2021 deadline. The response to the COVID-19 pandemic continues to develop, and Deloitte will provide additional updates as information becomes available. Please check Deloitte’s COVID-19 Digital Map, available here, for information on travel restrictions and immigration changes in other countries.
IMPACT – MEDIUM
What is the change? The United Kingdom is poised to replace the Tier 4 visa route with two new student visa programs.
What does the change mean? Under a plan now before Parliament, the U.K. would award Student and Child Student visas based on a new points-based system. The system will apply equally to EEA and non-EEA nationals, and there will be no cap on the number of visas available every year.
Background: The U.K. is adopting the new system in hopes of providing a simpler visa process for international students. In order to qualify for visas, applicants will be required to reach at least 70 points under the new criteria. Applicants can obtain these points by evidencing an offer from an approved educational institution, reaching the requisite English ability and showing they are able to support themselves financially while studying in the U.K. The points system will also ease some documentation and maintenance requirements for students, and will make it easier for some students to apply for different immigration permissions without leaving the U.K.
Analysis & Comments: The Home Office touted the changes as part of a broader effort to ensure the U.K. draws “the brightest and the best” to study in the country. Officials have set a goal of bringing 600,000 international students to the country per year by 2030. The new student visa programs are designed to simplify student visa applications and the lack of a cap on the number of visas should encourage more international students. More detailed information is expected in the coming weeks, and Deloitte will provide updates as information becomes available.
On Jan.1, 2021, the Brexit transition period, which currently protects the residence rights EU/EEA/Swiss nationals living in the U.K., and U.K. nationals living in one of the EU/EEA countries and Switzerland, will officially end. After the end of the transition period, freedom of movement within the EU will no longer apply to U.K. nationals, and the U.K. will introduce a new immigration system that will apply to all EU/EEA/Swiss and non-EU/EEA/Swiss nationals.
To prepare businesses and their employees for the end of free movement next year, BAL and Deloitte have prepared a backgrounder focusing on the approved measures regarding residence rights around the U.K. and the EU at the end of the transition period.
Preview the document here.
The Home Office is advising sponsors with licenses expiration dates that fall between Nov. 27 and March 31, 2021 that they may submit their license renewal application in advance of the usual 90 days prior to the expiration date of their license.
Key points:
Additional information: The Home Office is also now resuming audits of future and existing U.K. sponsors after having suspended audits because of the pandemic.
Rest of World Source: Deloitte. Deloitte refers to one or more of Deloitte Touche Tohmatsu Limited (“DTTL”), its global network of member firms, and their related entities. DTTL (also referred to as “Deloitte Global”) and each of its member firms are legally separate and independent entities. DTTL does not provide services to clients. Please see www.deloitte.com/about to learn more. Deloitte Legal means the legal practices of Deloitte Touche Tohmatsu Limited member firms or their affiliates that provide legal services. For legal, regulatory and other reasons, not all member firms provide legal services. This includes Deloitte Tax LLP in the United States which does not provide legal and/or immigration advice or services. This communication contains general information only, and none of Deloitte Touche Tohmatsu Limited, its member firms or their related entities (collectively, the “Deloitte network”) is, by means of this communication, rendering professional advice or services. Before making any decision or taking any action that may affect your finances or your business, you should consult a qualified professional adviser. No entity in the Deloitte network shall be responsible for any loss whatsoever sustained by any person who relies.
The U.K. government has updated their guidance to help employers prepare for the U.K.’s new points-based immigration system, which is scheduled to be introduced on Jan. 1, 2021.
Skilled Workers
From Jan. 1, 2021, free movement for EU citizens will end and the U.K. will introduce a new points-based immigration system. Under the new system, EU citizens and non-EU citizens will be treated equally from an immigration perspective and will need to apply for permission to work in the U.K. before travelling to work. EU citizens living in the U.K. by Dec. 31 are not affected by the new system and they and their family members should apply to the EU Settlement Scheme in advance of June 30, 2021.
Irish citizens are exempt from these new rules and may travel to live and work in the U.K. without any restrictions from Jan. 1, 2021.
Under the new system, any EU and non-EU citizens coming to the U.K. to work will need to demonstrate that:
In addition to the above, the job offer must satisfy the government’s minimum salary threshold. This is the higher of either:
Sponsorship License
Employers wishing to recruit EU and non-EU citizens will need to have an existing Sponsorship license or apply for one in advance of recruiting EU and non-EU citizens. This will enable the employer to sponsor the migrant to work at their organization.
Intra-company Transfer
The Intra-company Transfer (ICT) route allows multinational organizations to move key business personnel employed overseas into the U.K. on a temporary basis, on the condition that ICT sponsorship requirements are met. The route will require applicants to be in roles skilled to RQF 6 (graduate level equivalent), and subject to a different minimum salary threshold from the main skilled-worker route.
Immigration Skills Charge
From Jan. 1, 2021, any employer sponsoring an EU and/or non-EU citizen will be required to pay the Immigration Skills Charge (ISC). Employers must pay £1,000 per skilled worker for the first 12 months, with an additional £500 charge for each subsequent six-month period. Discounted rates will apply to charities and small business.
Global Talent route
Under the new system, the existing Global Talent route will open to EU citizens as it currently applies to non-EU citizens. The purpose of the Global Talent route is to enable the most highly skilled applicants, to achieve the required level of points, to enter the U.K. without a job offer, on the condition that they are endorsed by a recognized U.K. body, who are approved by the Home Office.
An employer will not need to be a Home Office licensed visa sponsor to employ a migrant under the Global Talent route.
Graduate route
Under the new system a Graduate Visa will be available to international students who have completed a degree in the U.K. from summer 2021. The Graduate route will allow international students to remain in the U.K. and work at any skill level for two years after the completion of their course.
An employer will not need to be a Home Office licensed visa sponsor to employ a migrant under the Graduate route.
International students completing a PhD from the summer of 2021 will be permitted to stay in the U.K. for three years after the completion of their studies to live and work.
Analysis & Comments: The new system represents a significant change for employers recruiting from outside the U.K. labor market. Employers should be aware of the new points-based immigration system in advance of its launch and ensure that they put in place sufficient processes and controls so that they are prepared for the new system. The government’s new guidance in full may be found here.
What is the change? United Kingdom immigration authorities are poised to resume on-site sponsorship compliance visits that were suspended in March because of the COVID-19 pandemic.
What does the change mean? Employers should prepare for the possibility of compliance visits, which may be announced or unannounced.
Background: The U.K. suspended compliance auditing in March because of the COVID-19 pandemic. Officials notified sponsors last week that they would be resuming on-site compliance visits shortly. Officers have been instructed to follow Public Health England advice as well as any COVID-19 safety measures companies have put in place themselves.
Analysis & Comments: Employers should note that compliance visits will resume shortly and that such visits may be announced or unannounced. The response to the COVID-19 pandemic continues to develop, and Deloitte will provide additional updates as information becomes available. Please check Deloitte’s COVID-19 Digital Map, available here, for country-specific information.
The Home Office has published updated information concerning certain visas that may be expiring due to current conditions with COVID-19.
Global Talent Visa
Leave expiring after Sept. 1
Biometric enrollment
Immigration and nationality fees
Priority and Super Priority Service
Additional Information: Most Visa Application Centers have resumed services where local restrictions allow. Those who have immigration queries related to coronavirus may email the Coronavirus Immigration Help Centre at through email CIH@homeoffice.gov.uk or by telephone: 0800 678 1767 (Monday to Friday, 9 a.m. to 5 p.m.).