Employers in the UK – EUSS and the 'new' points based system

Article 10 June 2021 Experience: Immigration

Following the end of the transition period on 31 December 2020, EEA and Swiss citizens no longer have the right to live and work in the UK unless they obtain permission. As a result, companies which depend on an international workforce and global mobility should have acted to safeguard their businesses, ensuring their employees have the right to work in a post-Brexit Britain.

Those living in the UK pre 31 December 2020

The EU Settlement Scheme enables EEA and Swiss employees, and their family members, to secure their right to live and work in the UK after Brexit. Under the Scheme, those who have been continuously resident for five years in the UK can apply for settled status (aka indefinite leave to remain), allowing them to stay indefinitely. Those who have been resident for less than five years can apply for pre-settled status (aka limited leave to remain), allowing them to stay in the UK for up to five years, by which stage they could be eligible for settled status.

The EU Settlement Scheme is available to those who were living in the UK before 31 December 2020, and the deadline for applying is 30 June 2021. Employees will need to provide evidence of their UK residence when making their applications, so starting sooner rather than later may assist.

Employers should ensure that their EEA and Swiss employees take advantage of the EUSS whilst it is still available as providing support for their EEA and Swiss staff to apply for status under the Scheme will be significantly cheaper, quicker, and less onerous than sponsoring them under the new regime.

Those arriving in the UK post 31 December 2020

For those who are not eligible for EUSS, a visa will be required to remain in the UK for longer than six months, and to work or be self-employed. This new process can be split into two stages, employers obtaining a sponsor licence and employees applying for the visa.

1. Employers obtaining a sponsor license

In order to secure visas for their employees, employers will need to ensure they hold the correct licence to do so.
(a) Employers who already hold a sponsor licence

Existing Tier 2 (General) and Tier 2 (Intra-Company Transfer) sponsors will automatically be granted with a new Skilled Worker licence or Intra-Company Transfer licence, with an expiry date consistent with their sponsor licence under the current system, and will receive an appropriate allocation of Certificates of Sponsorship (‘CoS’).
(b) Employers who do not currently hold a sponsor licence

It is advisable for employers who do not currently have a sponsor licence, to apply for one sooner rather than later. Lead-in times between applying for the sponsor licence and the employee starting work under their visa can run to three or four months. If employers want to employ the most skilled applicants, having a sponsor licence in place will ensure they can get the best candidate on board in time to meet their business need.

2. Employees applying for the visa

Skilled workers

Once an employer has obtained a sponsor licence, an applicant must pass UK criminal background checks and score the requisite number of ‘mandatory’ points and ‘tradeable’ points for their skills and the role on offer.

(a) ‘Mandatory’ points

In order to earn the required 50 ‘mandatory’ points under the Skilled Worker route, an applicant must satisfy the following criteria:

  • The applicant must have a job offer from a licensed Sponsor;
  • The job must be at or above the minimum skill level of RQF3 or equivalent (A-level or equivalent qualification); it is the skill level of the job which is important as opposed to the applicant holding a formal qualification; and
  • The applicant must speak English to an acceptable standard (ie level B1 CEFR).

(b) ‘Tradeable’ points

In addition to the 50 ‘mandatory’ points, an applicant must also earn an additional 20 ‘tradeable’ points through a combination of points for their salary, a job offer in a shortage occupation or a relevant PhD.

Salary
The 20 additional points are automatically earned if an applicant is paid the higher of the general salary threshold (£25,600) or the ‘going rate’ for their particular job. If an applicant is paid less than £25,600 or the ‘going rate’, it is still possible to earn the requisite extra 20 points (through a job offer in a specific shortage occupation or by holding a PhD relevant to the job) so long as their annual salary is no less than £20,480.

In all occupations, the salary requirement for new entrants is 30% lower than the rate for experienced workers, however the minimum annual salary of £20,480 must always be paid.

Resident Labour Market Test
Under the new PBS, there is no requirement for employers to undertake a Resident Labour Market Test (‘RLMT’). The scrapping of the RLMT removes at least four weeks from the overall process of sponsoring skilled workers. It is important to note that sponsors must still be seeking to fill a genuine vacancy which meets the skill and salary thresholds of the new route.

Tier 2 (General) visa cap
The Home Office has suspended the current cap on Tier 2 (General) visas, meaning there is no more limit on the numbers of skilled workers who can come to the UK.

English language requirement
The English language requirement remains in place for skilled workers under the new PBS, who must have a minimum level of B1 CEFR in speaking, listening reading and writing. Migrant workers who are not from a majority English speaking country can rely on a bachelor, master or PhD qualification from a university in a majority English speaking country to meet the requirement.

Switching
Under the new PBS, most migrant workers are allowed to apply to switch from one immigration route to another without having to leave the UK to apply, with the exception of those on short-term routes (ie visitors and seasonal workers).

Mock audit / compliance training

UK employers are legally obligated to ensure that all of their employees’ nationality and immigration status records are up to date, in addition to ensuring that their on-boarding and recruitment processes are compliant with UK right to work regulations. Failing to do so regularly results in criminal and civil liability, up to five years in prison, and fines of up to £20,000 per person found to be working unlawfully.

We provide regular mock immigration audits to identify any compliance issues before the Home Office’s immigration enforcement team decides to pay an unannounced visit.

This is a crucial moment to ensure that you are compliant with right to work obligations and to avoid disruption to your employees and to your business.

For further information as to how we can help please contact our Immigration team, or your usual Withers contact, who would be happy to advise, alternatively you can call +44 20 7597 6364 or email enquiries.uk@withersworldwide.com.