On 31 December 2020, free movement between the UK and the European Union (EU) ended. EU citizens who lived in the UK before 31 December 2020 must apply to the EU Settlement Scheme to retain their residency rights in the UK. The deadline for such applications is 30 June 2021, though late applications may be accepted under certain circumstances. All other EU citizens are now subject to the points-based immigration system as all non-British nationals are. In other words, anyone entering the country since 1 January 2021 must either already possess valid permission to enter or remain in the UK, or they must seek permission to enter as a visitor at the border.
For many EU citizens trying to come to the UK, this has led to confusion and in some cases immigration action has been taken against them. Since January, some EU citizens have been detained upon arrival in the UK because they did not have the right to work or the correct visa to enter the UK. What are the rules exactly?
Preliminarily it should be stated that EU countries are not on the visa nationals list. EU citizens seeking to come to the UK as a visitor will not need to apply for a visitor visa. They can simply fly to the UK and ask for permission to enter the country as a visitor once they land at the border. Visitors are defined as persons “who want to visit the UK for a temporary period, (usually for up to 6 months), for purposes such as tourism, visiting friends or family, carrying out a business activity, or undertaking a short course of study.” This definition indicates some of the restrictions that come with visitor status. Importantly, EU visitors are not allowed to access public funds during their stay in the UK, nor are they allowed to work.
The “business activity” exception does not allow for EU citizens to find a job and work in the UK. Rather, it allows the visitor to undertake certain permitted activities relating to work. For EU-based businesses wanting to send their EU citizen employees to the UK for secondments or other business activities, Appendix V of the Immigration Rules is of paramount importance as it lays out the only route for them to do so, including which type of activities are allowed.
To what extent work is permitted whilst one is in the UK on a visitor visa is a complicated matter, laid out in Appendix V. The rules state that all work is prohibited except the types of work specifically laid out in there. Permitted activities thus include attending meetings, conferences and seminars in the context of the visitor’s job abroad. Meetings may include contract negotiations, closing business deals as well as job interviews. Importantly, however, if a job interview leads to a job offer, the visitor can under no circumstance start the job without applying for a work visa first. If a visitor secures an offer of future employment, they must leave the UK, apply for the appropriate entry clearance from abroad, and then return once they have the right status. Additionally, certain sectors such as journalism, religious work or scientific and academic research are permitted on a visitor visa.
The maximum length of stay for a visitor in the UK is of six months from the date of entry. This is the same for visa and non-visa nationals; if the visitor stays for longer than six months they will be registered as overstayers and be in the UK unlawfully. This may lead to issues the next time they try to return to the UK, as a border officer will be suspicious of their motivations. Considering the potential consequences, it is therefore important to understand what one is and is not allowed to do once they arrive in the UK on a visitor visa.
To sum up, if you are an EU citizen working for an EU company without residency rights in the UK (whether under the EUSS or otherwise), your ability to work in the UK on a visitor visa is limited to the visitor visa requirements. This includes a time limit of six months and also a set list of permitted activities. If you or your employer want you to work beyond that, they will have to apply for a business licence in the UK and set up a structure here.
If you need legal assistance with the EU Settlement Scheme, or have any other questions, you can contact us here, call us on 020 8142 8211, or send us a question on WhatsApp.
Notice: we do not help non-EU / overseas / foreign workers find jobs in the UK. Our service is available only to established national businesses that are looking to hire foreign workers, or for foreign workers with job offers in the UK.
Under the new immigration system, set to come into force on 1 January 2021, freedom of movement for EU/EEA/Swiss ('EU') citizens will end. Just like non-EU nationals, EU citizens who are not settled in the UK will have to apply for working visas if they wish to come work in the UK. Conversely, employers wanting to hire EU workers will have to apply for a migrant sponsor licence, just like they have to do now for third-party nationals.
Being a sponsor does not mean that the employer has to pay for the migrant worker’s visa application. It simply means that as a UK company wanting to hire overseas workers, the Home Office will do a check on the company’s organisation and trustworthiness in dealing with migrant workers, and assess whether the company is able to monitor and follow that their migrant employees comply with their visa conditions.
There are two types of working visas, and similarly, companies can get a licence to hire either type of worker. The first one is the Tier 2 worker visa, tailored towards non-British nationals coming to the UK as skilled workers with permanent, long-term job offers. This post will focus on how to apply for sponsorship to sponsor those Tier 2 workers. The second type is the Tier 5 worker, who comes to the UK temporarily. Good examples are seasonal workers (e.g. in agriculture) or charity workers.
For both types of sponsorship licence, the Home Office announced in February 2020 that “Employers not currently approved by the Home Office to be a sponsor should consider doing so now if they think they will want to sponsor skilled migrants, including from the EU, from early 2021." If you are an employer who intends to hire non-British workers from January 2020 onwards, it is now beyond time to apply for your sponsor licence, especially since the government has announced multiple changes to the sponsorship system which will make it easier for businesses to obtain a licence.
To facilitate the transition from free movement laws to the new points-based system, the government has proposed to lift the “cap” on numbers of migrant workers, meaning there is no longer a limit on how many companies can obtain such a licence every year. The government has also announced that the required skill level for sponsored job role will be reduced from January onwards, and roles requiring a skill level equivalent (roughly) to A-levels will be eligible for sponsorship, instead of the higher requirement of bachelor’s degree that is in place today. This, again, is to smoothen the transition from EU free movement to the stricter migration rules of the points-based system. Additionally, from January onwards, the Resident Labour Market Test (RLMT) will no longer apply, meaning that you will be able to hire foreign workers even if there are suitably qualified resident workers able to fill the role for which you are recruiting. This was previously not the case.
For all of these reasons, now seems like the perfect time to apply for a Tier 2 Sponsor Licence. So how should a business go about the application? Applications are made to a specific Tier 2 Sponsor Licence applications team at the Home Office. The process involves two different steps: an initial online form, and then a file of hard copy supporting documents which are due to be submitted within 5 working days of the online form.
The basic criteria that a company needs to meet to receive a sponsorship licence are numerous. Firstly, the business must be based in the UK. Secondly, the business must be “genuine,” and trading lawfully in the UK, meaning that the business will have to provide details of their organisational and sectoral structure. Supporting documents will need to include, for example, an up to date hierarchy chart detailing any owner, director and board members.
Thirdly, the business must be “honest, dependable and reliable,” a subjective and relatively vague requirement which is usually proven by submitting previous projects, reviews and contracts that show that the company lives up to its promises. Broadly, the supporting documents serve to show the Home Office that the sponsor company is capable of complying with sponsor duties and responsibilities and does not pose a threat to immigration control. The more details the sponsor provides, the better. That is why the business owner will also have to include details about the role(s) they are looking to fill, to ensure that these roles meet the skill, salary and qualification requirements for eligibility for foreign workers.
As such, to hold a Tier 2 Sponsor licence, the applicant organisation must have Human Resources systems in place to ensure that they are able to meet the various sponsor's duties and responsibilities as set out in the guidance. No details are provided as to what such a system entails, but broadly, the company must use this system to ensure accurate monitoring of employees’ immigration status, track and record their work attendance, and keeping copies of relevant documents for each employee.
As reiterated in the guidance, sponsorship is a privilege, not a right. That is why the process is not as straightforward as it could be – the applicant company has to earn the privilege of being a sponsor, and the burden of proof lies on them to demonstrate that they have done so. If you are looking to hire overseas workers, do not hesitate to contact us to help you with your Tier 2 Sponsor Licence application.
If you have any questions regarding absences or the EU settlement scheme, please do not hesitate to contact us here or send us a question on WhatsApp.
Every day, at 8PM, millions of people across the country clap for our healthcare workers, an initiative which has been encouraged by the government. Meanwhile, as coronavirus numbers soar to almost a thousand deaths a day in the UK, the Home Office published updated guidance for employers on navigating working visas once the new points-based immigration system comes into force on 1 January 2021. Whilst encouraging signs of solidarity, the government is thus detailing the ins and outs of an immigration system which will likely stop many of the people we clap for from coming to work in the UK once it becomes law.
The new guidance lays out that all workers will have to be sufficiently qualified (at the minimum, they must have A-level equivalence) and speak sufficient English in order to get a visa. Highly skilled workers are the only ones who can come to the UK without a job offer. In order to do so, they need to get an endorsement from a relevant competent body in order to obtain a Global Talent Visa.
Any other individual who wants to come work in the UK will need to have a job offer from an approved sponsor. To become an approved sponsor, employers who want to recruit migrant workers will need to take active steps. They will have to check that their business is eligible, and choose which type of workers they are looking to hire: skilled workers with long-term job offers, or temporary workers. Employers will then have to put in place a framework within their business to deal with the sponsorship process, apply online and pay an application fee ranging from £536 to £1,476, depending on the type of business. The whole process usually takes about 8 weeks. Once they become an approved sponsor, they can recruit people without UK residency to fill their job openings.
If an individual, then, receives a job offer from an approved sponsor, they will need to meet a minimum income threshold on top of the language and skill requirements. The general minimum salary threshold is set at £25,600. For some jobs, the threshold may be higher, if the Home Office estimates that it is a higher paid occupation.
If an individual does not meet the income threshold, they may still be eligible for a visa if they can demonstrate that they have a job offer in a specific shortage occupation or a PhD relevant to the job. For these occupations, the income threshold is lowered to £20,480. The list of shortage occupations, which includes doctors and nurses, is published by the Migrant Advisory Committee.
Concerning lower-skilled workers, the guidance explicitly reiterates that “there will NOT be an immigration route specifically for those who do not meet the skills or salary threshold for the skilled worker route.” The skill level for different jobs can be found in Appendix J of the Immigration Rules.
Considering that the average health care worker in the UK makes £19,080 a year, the timing of this publication seems peculiar to say the least. As our Director suggests, how does it make sense for the Home Office state that care workers, nurses, hospital porters, cleaners, logistics personnel, postal workers, etc. will not be able to apply for visa under the new immigration system in the midst of the Covid-19 crisis? It is hard to imagine that the Home Office has a valid reason for needlessly doubling down on an immigration policy which fails to take care of the workers who, in times of crisis, put everything at risk to take care of us.