Following the end of the transition period and the government’s message to the world that Britain is ready to welcome the best and brightest global talent, organisations need to considering their options for retaining and attracting individuals into their organisations.
The government will implement a new immigration system from January 2021 which will be the first major overhaul in UK immigration since 2008. Both EU and non EU nationals will require a visa to work and live in the UK.
The new immigration system will see some positive changes for organisations including a reduction in the salary threshold for skilled workers, and allowing a small number of the most highly skilled workers to enter the UK without a job offer if they are endorsed by a 'relevant and competent body’.
From January 2021 following the UK immigration changes your organisation may require a sponsor licence if you wish to employ EEA nationals.
If your organisation wishes to recruit and retain EEA workers you should encourage them to apply under the EU settlement scheme which will allow them to remain and work in the UK. Applications for EEA nationals in the UK by 31 December 2020 must be made by 30 June 2021. Organisations should look to identify needs to recruit lower skilled EEA nationals in the UK before 31 December 2020 to allow them to retain their workforce ahead of the changes.
Under the new system, lower-skilled EEA nationals will not qualify for sponsored visas. Organisations should review their current recruitment and retention practices to ensure minimum disruption following the changes on their existing and current workforce.
Any organisation who holds a sponsor licence and TUPE transfers employees or is involved in a merger or acquisition is required to carry out certain duties to remain complaint. The actions depend on the nature of an organisations changes but can involve duties on the transferor and transferee with changes requiring reporting within 20 working days. A new sponsor licence may be required for organisations recruiting migrants following a TUPE transfer.
Right to work checks considerations should also be considered and are deemed to be carried out by transferring employer so the receiving employer usually acquires the benefit of any statutory excuse however there is an assumption that transferor carried out correct right to work checks in first instance.
If it is found that the initial Right to Work checks by transferring employer were not carried out correctly and employees are found to be illegally working the receiving employer could be liable for civil (penalty of up to £20,000 per illegal worker) and criminal (carrying a sentence of up to five years and unlimited fine) penalties for any employees working on or after Feb 29 2008. We should always recommend own right to work checks are conducted on all transferring employees whose employment commenced after 29 February 2008.
The Home Office allow a 60 day grace period after TUPE for transferees to conduct fresh document checks and establish statutory excuse.
New Government Covid-19 guidance
Now travel restrictions are lifting globally individuals will no longer be able to extend their visa automatically on this basis and they are expected to take all reasonable steps to leave the UK where it is possible to do so or apply to regularise their stay in the UK.
If an applicant’s visa expires between 1 December 2020 and 31 January 2021 they may be able to request additional time to stay known as ‘exceptional assurance’. To make this request the applicant must send an email to the home office setting out relevant details and including evidence why an individual cannot leave the UK
If the applicant intends to stay in the UK and their visa expires between 31 October 2020 and 31 December 2020 they should apply for the necessary leave to remain in the UK. They will also be able to submit an application form from within the UK where they would usually need to apply for a visa from their home country. They will need to show the application is urgent for example, the need to start a new job or study.
If a visa or leave expired between 24 January 2020 and 31 August 2020 there will be no future adverse immigration consequences if they didn’t make an application to regularise their stay during this period. However, they must now make a request for exceptional assurance or make arrangements to leave the UK.
If UK Visas and Immigration (UKVI) can reuse the fingerprints an individual has already given, they’ll be emailed with instructions on how to send them an image of the applicants face and supporting documents.
This will mean they do not have to attend a UKVCAS or an SSC service point appointment to provide biometric information.
For more information on this topic, please get in touch with our Immigration team.