Following the UK’s exit from the European Union (EU) at 11pm on 31st January, we have now entered what is known as the ‘implementation phase’. During this time the government and the EU are aiming to negotiate a new trade deal, with any agreed changes taking effect in January 2021.
This will substantially change how businesses in the region can employ European Economic Area (EEA) nationals currently and in the future. Throughout 2020 UK businesses can continue to employ EEA nationals, but they should use the next 11 months to take the necessary steps to protect their ability to continue doing so.
The current rights for EEA nationals
At the moment, EEA nationals can enter the UK for employment purposes, but they must, along with their family members, apply for either Pre-Settled or Settled status by 30th June 2021. For those who are currently working in the UK, and have done so for a period of five years, they can apply for Settled Status by the same deadline.
It is imperative that employers encourage EEA nationals to apply for Settled Status as soon as possible, and we can provide any necessary advice and support throughout the application process and procedure.
If new legislation is passed this year, there will be major changes for employers throughout the United Kingdom. As from January 2021, all EEA citizens who were not UK residents on 31st December 2020 will be subjected to the new UK immigration law, and will be treated in the same way as non-EEA nationals for the purpose of obtaining working rights in the UK.
The UK’s new Australian-style points based system
Assuming the new legislation is passed, from January 2021 foreign prospective employees will go through a new Australian-style points-based system. They will be allocated points on a range of criteria, and assigned to one of three possible categories:
1. Exceptional Talent – Contribution– This applies to highly-educated migrants who have received world-leading awards or demonstrated exceptional talent, together with sponsored entrepreneurs setting up a new business, or investors. These individuals will not require a job offer and will receive fast-track entry.
2. Skilled Workers – This applies to workers who meet the criteria of the points based-system and have a confirmed job offer. Special visa types such as the new NHS visa will also receive fast-track entry and reduced fees. It is important to note that this category will be a development of the existing Tier 2 system under which most UK employers currently sponsor foreign migrants from outside the EEA. It has not yet been confirmed whether the qualification level will be reduced from RQF Level 6 (the equivalent to Bachelor’s degrees with Honours) as envisaged by the White Paper published by Theresa May’s Government in 2018, but it does appear likely that the current resident labour market test requirements will be removed or substantially reduced. Whatever is agreed, employers should be aware that there will be a bureaucratic process to employ EEA employees coming to the UK for the first time after January 2021.
3. Sector-Specific Rules Based – This category will consist of specific temporary schemes such as for low-skilled labour, youth mobility or short-term visits (e.g. tourists). It is this aspect of the new Rules that may have the greatest effect on the region’s employers. Lower-skilled vacancies will no longer be able to be filled automatically by EEA citizens, particularly from those from Eastern Europe. Although these will be revised on an ongoing basis based on expert advice from the Migration Advisory Committee, it is important to note that these visas will be time-limited and will not provide a path to settlement.
This scheme is likely to involve granting permits for a twelve-month period, with a requirement for the employee then to leave the UK for a second period of twelve months before they can return. The new system will not entitle such a worker to obtain permanent residence rights in the UK nor will it be possible for the worker to bring their family to the UK.