UK Immigration in a Post-Brexit era

On 1 December 2020, the Home Office launched the post-Brexit Immigration Rules which apply equally to non-EU nationals and EU nationals coming to the UK, after the UK left the EU and the transition period ended on 1 January 2021.

For the first time since the UK joined the EU in 1973, European nationals are now subject to the Immigration Rules and will need to meet their strict requirements if they had not established themselves in the UK prior to 1 January 2021.

There have been significant and welcome changes to the rules to employ foreign nationals (what used to be called the work permit scheme and then Tier 2).

The Government has scrapped the Resident Labour Market Test which means that employers no longer need to advertise to prove that there are no settled workers who can do the job. This means that employers do not need to justify hiring a foreign national on the basis that they could find a British national or settled person who has the skills to do the job. Rather, they can choose to hire the foreign national because they are the best candidate for the role.

The Resident Labour Market Test was a substantial disincentive to applying; causing delay and additional hoops to jump through.

The skills requirement has been lowered (it was degree level, it is now A-level), the salary requirement has been lowered (but the role still needs to be paid at the going rate unless the candidate can score points for other characteristics, such as holding a PhD) and there is no prohibition on the sponsored worker holding shares in the company it is to be employed by. The lowering of the skills level means that a much broader range of roles can now be filled by sponsored workers including restaurant and hotel managers, tailors, butchers, foster carers, gardeners, electricians, shop keepers, personal assistants and secretaries, officer managers, property managers, artists and DJs.

In sum, it is much quicker and easier to sponsor a foreign national for employment in the UK under the Skilled Worker regime than it was under Tier 2.

It is expensive in terms of Home Office fees, but if an employer wants to sponsor a foreign national, it is now much easier and quicker to achieve.

That said, if you compare the new system to the freedom of movement enjoyed by Europeans pre-Brexit, of course it is much more difficult.

Aside from meeting the other requirements, Europeans will now need to pass an approved English language test if they didn’t do their GCSEs and A levels in the UK or have a degree that was taught in English or in the UK. Many won’t meet this requirement and the test needs to be passed in all 4 components (reading, writing, speaking and listening) at an intermediate level. It is a high standard requiring them to be able to understand the types of topics regularly encountered in work, school or leisure-related settings; which some inevitably won’t meet.

Whilst there has been an English language requirement for non-EEA nationals coming from non-English speaking countries for over 10 years, this is new for Europeans.  It is still possible to sponsor foreign nationals who cannot meet the English language requirement as an intra-company transfer but only if you are transferring them from a branch of the business abroad and only for a temporary period; they won’t qualify for indefinite leave to remain.

Other welcome changes include scrapping the cooling-off period which prohibited sponsored workers from applying for a new sponsored role within 12 months of the expiry of their previous visa and removing many of the restrictions on switching between categories.

This means an employee working in the UK with a Tier 5 Youth Mobility Scheme visa won’t need to make the long trip back to Australia, Canada, Hong Kong, Japan, New Zealand, Republic of Korea or Taiwan in order to move into the sponsored worker category. It also enables an individual working in the UK under Tier 2 Intra- Company Transfer to switch into the Skilled Worker category and start accruing time towards qualifying for indefinite leave to remain.

For business people the options are still very limited.

The Government removed the Entrepreneur category for new applicants (which required business people to invest £200,000 in a business that they run and employ 2 settled workers) in March 2019 and replaced it with the Start-Up and Innovator route. Nearly two years later this route remains ineffective and the Government has announced that it has no intention of changing the route or adding a better route for business people.  The Investor category remains and requires an investment of £2 million and those establishing the first UK branch of an overseas company may be eligible to apply as a Sole Representative. Yet, with the restriction on holding shares removed, a new route may emerge whereby a business person is employed by their own company as a sponsored worker.

If you have any questions or require advice in relation to the topics covered in this article, then please contact a member of our Immigration team.