1 INTRODUCTION

1.1  Immigration law requirements have become increasingly more important in the running of businesses in Northern Ireland as the world has (metaphorically speaking) become a smaller place. This means that many HR practitioners now also have to have a certain level of knowledge of business immigration requirements too. These include:

• 1.1.1  conducting "right to work" checks when taking on new recruits;
• 1.1.2  being aware of the obligation to avoid discrimination in recruitment and in the workplace on the basis of race or nationality; and
• 1.1.3  dealing with the recruitment of migrant workers.

1.2  Recruiting EEA or Swiss migrant workers has been relatively straight- forward over the best part of the last fifty years. This has been as a result of the free movement of people benefits that came with membership of the European Union.

1.3  As a result of the UK leaving the EU, free movement of people is ending on 31 December 2020.

1.4  This means that along with the New Year, 1 January 2021, will also bring a new immigration system which will apply across the United Kingdom, including in Northern Ireland. It will apply to EEA and Swiss (‘EEA’) nationals (with the exception of Irish nationals) as well as non- EEA nationals. From 1 January 2021 having a sponsor licence will become essential for organisations who recruit both from outside of the EU and from within it.

1.5  This is a major change as businesses have been used to largely unrestricted access to talent from the EEA for the best part of a generation. If your organisation has not already started to prepare for these changes you need to start to do so now. HR professionals should ensure that they are able to guide and support their organisations by understanding the proposed new immigration rules, checking recruitment plans and budgets, obtaining or reviewing a sponsor licence and supporting / assisting existing staff with applications under the EU Settlement Scheme.

1.6  This paper sets out detail of some of the key implications of Brexit on immigration related considerations for employers in Northern Ireland. In considering the new immigration landscape the paper primarily focusses on the new skilled worker route, although of course there are other types of immigration routes too.

2 BREXIT AND FREE MOVEMENT OF WORKERS

2.1  One of the most significant implications of Brexit from an employment law practitioner’s perspective is its effect on the free movement of workers. Since June 2016 many questions and concerns have been raised relating to the immigration status of workers and the impact Brexit will have on organisations with an international workforce and a heavy reliance on EU migrant workers.

2.2  On 31 January 2020, the UK officially left the EU after the Withdrawal Agreement, concluded between the EU and the UK on 17 October 2019, was fully ratified. We are now in the so-called ‘transition period’, which is due to last until 31 December 2020. During the transition period, free movement has and will effectively continue between the UK and the EU, with EEA citizens and their family members who are legally residing in the UK in accordance with EU regulation continuing to be able to do so.

2.3  The Withdrawal Agreement guarantees that EU nationals residing in the UK, and UK nationals residing in any EU member state before the expiry of the transition period, in exercise of their free movement rights, will retain their residency rights after the transition period has ended. EU nationals living in the UK may apply through the EU Settlement Scheme to allow them to continue living and working in the UK after the transition period.

2.4  After the transition period, free movement of EEA citizens to and from the UK will no longer apply. From then, EEA citizens will be subject to the same immigration rules as other nationalities, except for those whose applications for settled or pre-settled status have been accepted by the end of June 2021.

2.5  The Immigration Bill (“Bill”) ensures that Irish citizens are unaffected by these changes and retain their right to move to and work in the UK.

2.6  The Bill does not set out the UK’s future immigration system – this will be established in law via secondary legislation. The government has, however, set out a framework for what the new system will look like which is in essence an adapted version of the system currently used for non-EU migrants. A more detailed review of the anticipated new immigration regime is below.

3 THE EU SETTLEMENT SCHEME – BRIEF RECAP

3.1 EEA citizens residing in the UK by the end of the transition period, 31 December 2020, can apply for immigration status under the EU Settlement Scheme. There is a further six month ‘grace period’ from 31 December 2020 during which applications for status under the EU Settlement Scheme may still be submitted. This grace period will end on 30 June 2021.

3.2  Those with less than five years’ residence in the UK at the time of application are granted “pre settled status”. When the five year anniversary is reached applicants apply to “upgrade” to full settled status. Those who have resided in the UK lawfully for five years will be eligible for "settled status" and will be free to live and work in the UK indefinitely.

3.3  If EU nationals fail to secure settled status (or pre-settled status) they run the risk of losing their right to remain in the UK beyond the June 2021 deadline. It is currently unclear precisely what the status of such individuals would be.

3.4  EU citizens who arrive in the UK from 1 January 2021 will need to meet the requirements of the new UK points-based immigration system, in the same way as non-EU citizens. They will not be able to apply under the EU Settlement Scheme if they only arrive in the UK for the first time in 2021.

3.5  Please also note:

• 3.5.1  there is no requirement for Irish citizens to apply for status under the EU Settlement Scheme but they can if they wish to do so;

• 3.5.2  Appendix EU of the immigration rules were recently amended to allow applications to made under the EU Settlement Scheme by family members of ‘eligible persons of Northern Ireland’.

3.6  As of 30 September 2020, and according to the most recent statistics issued by UKVI 66,300 applications under the EU Settlement Scheme have been made from individuals living in Northern Ireland. Across the UK a total of 4,061,900 applications have been made to the end of September 2020.

What does the transition period mean for your organisation?

3.7 It is important that your business understands what its duties are during the transition period, and to the end of the grace period. Some key issues to be aware of are below:

• 3.7.1  There is no requirement for an employee to inform their employer that they have applied for status under the EU Settlement Scheme or the outcome of their application.

• 3.7.2  There is no requirement for employers to check that an employee has applied under the EY Settlement Scheme. This is not however to say that there is anything preventing employers from raising awareness of the settlement application process and encouraging employees to apply – this should however stop short of ‘requiring’ your employees to apply.

• 3.7.3  Employers have a duty not to discriminate against EU citizens in light of the UK’s decision to leave the EU, whether as a prospective or current employer. Businesses cannot make an offer of employment, or continued employment, dependent on an individual having made a successful application under the EU Settlement Scheme. However, if EU national workers do not obtain the required status to remain in the UK, that will pose a significant problem and barrier for employers wishing to continue with their employment.

• 3.7.4  The current ‘right to work’ checks (e.g. passport and/or national identity card) will continue to apply until the end of 2020 (see further below). It is important to ensure that your organisation is undertaking correct right to work checks on an ongoing basis.

• 3.7.5  New start EU citizens can evidence their right to work using the online right to work service, if they choose to do so. However, they are under no obligation to demonstrate their right to work in this way and can continue to produce passport / national identify card as referenced above).

• 3.7.6  Remember that there will be no change to the rights and status of EU citizens living in the UK until 30 June 2021.

• 3.7.7  Current guidance indicates that employers are not required to undertake retrospective checks on existing EU employees when the UK transitions to the future skills-based immigration system come January 2021.

4 RIGHT TO WORK MATTERS: THE BASICS

4.1  It is unlawful to employ someone who does not have the right to reside and the appropriate right to work in the UK or who is working in breach of their conditions of stay.

4.2  Some people are automatically entitled to work in the UK. The most common examples of people who do not currently require permission to work in the UK (though may still require a visa) are:

• 4.2.1 British citizens. However, British Dependent Territories citizens, British nationals (overseas) and British overseas citizens do require permission to work in the UK. Employers must be careful as these passports look like British passports but may not contain the right to live and work in the UK.

6.2  Guidance on cross-border / frontier workers is still very limited. The government information page states the following – ‘you’ll be able to keep your frontier worker status if you’re frontier working in the UK by 31 December 2020, but you’ll need to apply for a frontier worker permit.’

6.3  It goes on to say ‘Irish citizens will not need a frontier worker permit but may apply for one if they wish.’

6.4  The frontier worker permit scheme is awaited. At this time we understand that applications will be free; application can be made inside or outside the UK and that from 1 July 2021, EU national individuals will need to hold a valid frontier worker permit, as well as your valid passport or national identity card, to enter the UK as a frontier worker.

7 WHAT DOES THE ‘NEW’ IMMIGRATION SYSTEM MEAN IN PRACTICE?

7.1  Although the immigration regime is being widely heralded as a "new immigration system” in reality it is an adaptation of the current Tier 2 points-based system, albeit with a number of the current problem areas ofTier2(thankfully)beingremoved. Thismeansthatthoseofyouwho already employ non-EEA nationals will already be familiar with a number of the ‘new’ concepts.

7.2  At the time of writing the Immigration Bill has been returned to the House of Lords for further consideration. As explained above the Bill repeals EU free movement and paves the way for a new framework for an employer-led points-based system. It does not contain any detail relating to the future immigration system. This is to be provided in the Immigration Rules and new policy guidance. It is not currently clear when these will be available but with less than three months to the end of 2020 (at the time of writing) and less when you are reading this the precise detail is needed urgently.

What do we know?

7.3  What is clear is that if your organisation is not already a licensed sponsor and you think you'll want to sponsor migrants through the skilled worker route from January 2021, you will need to apply for a sponsor licence now.

7.4  Employers who already hold a Tier 2 (General) visa sponsor licence will automatically be granted a new Skilled Worker licence when the new system launches. Those who already hold a Tier 2 (Intra-Company Transfer) sponsor licence will automatically be granted a new Intra- Company Transfer licence.

7.5  The points based system will include a route for skilled workers, both EU and non-EU citizens (excluding Irish citizens), who meet the following requirements:

• 7.5.1  Job offer from a Home Office approved sponsor;

• 7.5.2  The job offer of a RQF 3 skill level (A-level and equivalent or above). The skills threshold under the new Skilled Worker route will be reduced from the current Tier 2 requirement of RQF 6 (graduate level and above) to RQF 3.

• 7.5.3  The relevant salary threshold.

• (i)  The salary threshold has been the subject of much debate and discussion in Northern Ireland given average salary levels in Northern Ireland. The minimum salary threshold under the new Skilled Worker route will be reduced from the £30,000 level initially debated to £25,600. Even this is a relatively high level of salary in Northern Ireland. It should be noted that there will be some exceptions to the above salary threshold -

• (ii)  Applicants for a role with a lower salary (subject to a lower limit of £20,480) may still qualify under the points-based system if the role is on the shortage occupation list and/or they have a relevant PhD (this is because extra credit or points are given for a PhD in a STEM subject);

• (iii)  There will continue to be different arrangements for a small number of occupations (such as nurses) where the salary threshold will be based on published pay scales and for "new entrants" (broadly defined as recent UK graduates and those under the age of 26);

• (iv)  Applicants will otherwise need to be paid the higher of £25,600 or the specific salary threshold for their occupation (the "going rate"); for example, an experienced IT manager would need to be paid at least £42,800.
  
  
• 7.5.4 Can speak English and no criminal record. This reflects the current system for the sponsorship of non-EU workers (with the exception of the Tier 2 ICT visa route, which does not require specific English language skills).

What is new or different for the skilled worker route?

7.6  The current resident labour market test (RLMT) will be abolished. This means that roles will no longer need to be advertised in a prescribed manner to show that no qualified settled worker is available. This will open up the sponsorship system to a number of employers previously unable (or unwilling) to prove that their preferred candidate is uniquely qualified for the role.

7.7  The cap on the number of Tier 2 (General) visas granted each year (currently set at 20,700) will be "suspended". In turn, we understand that this means that although sponsors will still need to request specific Certificates of Sponsorship for those applying from outside the UK, these allocations will be granted on a daily basis rather than on a monthly basis. Under the current system, the requirement for sponsors to request a restricted Certificate of Sponsorship on the fifth of the month can add an extra four weeks to processing times.

8.2 ‘Going rate’ salary threshold for the profession is applied

• 8.2.1  Richard wants to come to Northern Ireland to work and has been offered a job as a mechanical engineer for a salary of £26,750. He meets all of the mandatory characteristics under the Points-Based System, scoring 50 points.

• 8.2.2  As the going rate for mechanical engineers is £33,400 and higher than the general salary threshold, he must be paid according to the going rate for that occupation. This is because applicants must be paid according to whichever of the two is higher. Richard’s salary is just above 80% of the going rate for his occupation, therefore while he scores no points from his salary, he is eligible to score 20 tradeable points elsewhere to be eligible for a visa. In this instance Richard scores the 20 extra points by having a job offer in a shortage occupation.

• 8.2.3  The table below is personalised to show how Richard has accumulated the requisite 70 points.

9 IN PRACTICAL TERMS WHAT DO THE CHANGES MEAN?

9.1  The post-2021 immigration regime will build on the existing infrastructure in place for the recruitment of non-EEA nationals to Tier 2 general posts.

9.2  From 2021 there will be no general low-skilled or temporary work route. This will have a significant impact on businesses heavily reliant on lower-skilled or lower-paid EU, EEA and Swiss workers, assuming the salary and skills threshold reductions mentioned above do not go far enough to allow for the sponsorship of all or most types of worker in short supply.

9.3  The Migration Advisory Committee (MAC) will maintain a shortage occupation list (“SOL”) and for this first time the MAC have recommended a specific SOL for Northern Ireland. Going forward from 2021 the list will no longer be used to determine which roles will be exempt from the resident labour market test (as this is being abolished), but rather to indicate which occupations in short supply should be allocated extra points to make up for offering a salary of less than 25,600 (subject to an overall minimum of 20,480). The MAC’s recent review recommends the addition of a number of occupations, including senior care workers, nursing assistants, butchers, bricklayers and welders “where there is clear evidence of staff and skills shortages which could be filled by overseas workers”. For Northern Ireland the additional occupations recommended are bakers, fishmongers, housing officers and gardeners.

9.4  Those sectors heavily reliant on lower-paid and lower-skilled EU, EEA and Swiss workers will be the worst affected by the new system. In the short to medium term, if nothing else, the significant cost and administrative burden of sponsorship is likely to be prohibitive for many sectors reliant on EU, EEA and Swiss workers, and they will inevitably be forced to come up with alternative solutions to fill workforce shortages.

9.5  Businesses already using the current Tier 2 points-based system for non-EU workers may find the new system more accessible and easier to use, given the salary and skills threshold reductions and the abolition of the RLMT. The government has said it will seek to provide a "streamlined and simplified system", but it has yet to provide any detail on what this means in practice.

9.6  The Immigration Skills Charge and the Immigration Health Surcharge will apply to visa applications on the same basis as they do now. This means that even if a hard-to-fill role qualifies for sponsorship under the new system, many employers will be unable to afford the associated costs (particularly for lower-paid roles).

9.7  New routes are also under consideration for scientists and graduates, but very little detail is currently available.

9.8 EU, EEA and Swiss citizens will be allowed to visit the UK for up to six months without having to apply for a visa before travelling. This would only apply to those coming to the UK for tourism or eligible under the UK business visitor rules, and not those coming here for substantive work or to fill a role.

10 CONCLUDING COMMENTS AND SUMMARY OF KEY POITNS

10.1  There will be a need to fundamentally review immigration processes and compliance at the end of the Brexit transition period. The lockdown period has, in my view, obscured the fact that these changes will occur in January 2021 and that, however well prepared, few employers will be ready for this. To further support and assist you I have set out some FAQs at the end of this paper. We hope that asking yourself these questions and following the suggested approaches will help you to prepare for this.

10.2  EEA nationals who are living in the UK before 31 December 2020 can apply under the EU Settlement Scheme for a valid immigration status, which will allow them to continue to live, work and study in the UK without restriction.

10.3  Irish nationals will continue to be able to live, work and study in the UK without obtaining immigration permission and they will only need to show their passports as proof of these rights.

10.4  All new non British or Irish arrivals to the UK from 1 January 2021 will need a visa before they travel to the UK if they intend to live, work or study in the UK.

10.5  The Government intends to keep the application and other additional fees it charges for immigration applications at the same level as they are currently and, in some cases, increase them. This will have a large impact on EEA nationals who currently do not have to pay any fees to exercise EU free movement rights or apply under the EU Settlement Scheme.

10.6  Right to work checks: employers will continue to be able to confirm an EEA national’s right to work using only their passport or national ID card until 30 June 2021. From 1 July 2021, employers must see proof of immigration status which will be either from the EU Settlement Scheme or from the new immigration system.

FREQUENTLY ASKED QUESTIONS

11 HOW CAN WE PREPARE FOR BREXIT?

11.1 Whilst the necessary steps to take will vary considerably from business- to-business, we would suggest planning for the impact of Brexit should include each of the following.

• 11.1.1  Assessing the business’ reliance on EEA staff in key strategic areas of the business and whether the employee retention rate or employee numbers have changed as a result of covid;

• 11.1.2  Many employers have done this already, but it will need to be an ongoing process post-Brexit which identifies the extent to which your business has an operational reliance on non-EEA and EEA labour and how this may change over the coming 12 – 24 months;

• 11.1.3  Identifying skill shortages and assessing the need for alternative visa types;

• 11.1.4  Areas of skill shortage may not correspond to those occupations in which a high quotient of skill and training is necessary to undertake the role. We have spoken with several sponsors who have identified their warehousing and distribution functions as areas of the business in which EEA staff disproportionately work. Several sponsors working in residential care have recruiting candidates to train from EEA countries for several years. These roles don’t appear to fit well into potential sponsorship categories and longer-term processes to help such employees are likely to be necessary.

• 11.1.5  Considering the extent to which employees have been aware of the EU Settlement Scheme Compliance and any refusals or delay of status.

• 11.1.6  The official Government statistics advise of more than 6 million settled status applications to date, which suggests most EEA employees do understand the requirements and have applied. This might not be the problem which it initially appeared, but some applications do seem difficult. In particular, we’ve noted that EEA Family Permit applications seem to take much longer than others, as do those relying on more complicated legal rights.

12 DO WE NEED A SPONSOR LICENCE?

12.1  You may do if your business recruits EEA nationals (other than Irish citizens) and wants to continue to do so.

12.2  It would be our recommendation that you act now if your business does not already have a sponsor licence to ensure that you are able to recruit the talent required from January 2021. We have already seen an increase in the number of sponsor licence applications recently and expect that there will be a surge in sponsor licence applications in the next few months to the end of the year, impacting on the application processing times.

12.3 The Government has recently published a guide for employers on how to apply for a sponsor licence (detail is at the end of this note). We can also support with sponsor license applications and essentially this involves ensuring that the business meets the eligibility and suitability criteria set by the Home Office, nominating individuals to take on roles regarding the sponsor licence and providing required supporting evidence.

13 WHAT SHOULD I BE THINKING ABOUT BEFORE I APPLY FOR A SPONSOR LICENCE?

13.1 Things to think about will include the structure of the business and the workforce that you need to recruit. For example:

• 13.1.1  Is it better to have one sponsor licence in the UK or should there be more than one licence to reflect corporate ownership and subsidiaries?

• 13.1.2  Which talent pipelines are likely to be impacted by Brexit and are those roles ones you would be able to sponsor under the new rules?

• 13.1.3  In addition, consider the costs involved with being a sponsor as this will involve costing not only the sponsor license application fees but also the sponsorship and visa charges that will be applicable to each individual sponsored. What visa and associated costs would be the business be required to bear and which costs could be reimbursed on a voluntary basis? The business will be required to nominate key post holders on the licence to be responsible for overall compliance and to undertake day to day tracking and reporting actions. It is important that the right individuals are identified from the outset depending on their area of responsibility and expertise.

14 WE ARE ALREADY A SPONSOR, DO I NEED TO DO ANYTHING?

14.1 Should you need to recruit EEA nationals, you will be making greater use of your sponsor licence from January 2021. It is worth being prepared for the following:

14.1.1 increased costs to your business when recruiting EEA nationals which will include sponsorship costs along with visa fees and charges – all of which will need to be factored into your business’ budgeting

• 14.1.2  does the business have the right resource levels in place to manage a rise in your sponsored workforce to ensure that visa holders and expiry dates are tracked?

• 14.1.3  are you able to assess how many additional Certificates of Sponsorship you are likely to need from 1 January 2021 onwards?

• 14.1.4  are the relevant teams aware of the new rules which come into force in January 2021 or is internal training needed for your recruitment teams and for those with responsibility on your current licence?

• 14.1.5  further, it is unknown whether there will be a rise in auditing of existing sponsors carried out by the Home Office. However, it may be prudent to undertake an internal review to ensure that your current processes are robust and that all of your compliance obligations are being complied with in respect of your current sponsored population.

15 SHOULD WE BE BRINGING FORWARD START DATES OF NEW EU NATIONAL EMPLOYEES TO THIS YEAR?

15.1  This is definitely something worth considering if you can and if it is appropriate to do so because they may be able to qualify for pre-settled status rather than have to fit into the new immigration system.

15.2  There are some potential big advantages to doing this. Pre-settled status within the EU Settlement Scheme grants, effectively, the right to work in the UK for the next five years. It’s free, takes about 15 minutes to do and, other than those with serious criminal convictions, all currently resident EEA citizens qualify. Contrast that with the potential alternative of sponsoring a Tier 2 visa; several thousand pounds of expense for employer and assignee, a regulatory regime to comply with, the possibility that the basis for qualification will change in the future and that some workers won’t qualify anyway.

16 FOR THOSE WITH A TIER 2 LICENCE ALREADY, IS IT FIT FOR INCREASED USAGE?

16.1  It is likely to be the case that your current sponsor licence does not accommodate the possibility of EEA workers being sponsored to work under the new immigration system.

16.2  For many employers, that’s going to mean a major increase in the number of Certificates of Sponsorship issued each year, with a concurrent additional costs and regulatory responsibility on the employer. For smaller sponsors, it is often the case that one individual within an HR team has responsibility for all matters relating to immigration, which works well in the context of only a small number of certificates being issued each year. After the end of the Brexit transition period, that may need to change.

16.3  Have you assessed the potential additional costs of Tier 2 sponsorship of EEA workers? Do you need more Level 1 Users? Do more people need to be trained to use the system? Have budgets been agreed to reflect the additional spend?

16.4  Under the new regime, the removal of the resident labour market test, the fall in the relevant skill level to RQF3 and a change in minimum salary thresholds is likely to result in a spike in the number of candidates applying for eligible roles. Candidates will have an increased expectation that they could be sponsored (if a visa is required), as the resident labour market test will no longer prevent sponsorship where there are suitable settled workers in the pool. As there will be a larger pool of job roles capable of sponsorship than ever before, it is likely that most employers will see a spike in the requirement for sponsorship.

17 WORK OUT HOW TO ACCOMMODATE VIP TRAVELLERS AND RISK OF FUTURE ENTRY RESTRICTIONS

17.1 EEA citizens have been used to largely unrestricted access to the UK for almost fifty years, so immigration restrictions are new in the lifetime of almost everyone who works in the UK and lives in the EEA. Is it worth considering if VIP travellers should obtain pre clearance to work in the UK after the transition period ends? Are there restrictions which may similarly impact British citizens travelling to Europe for business visits/work?

18 WHERE CAN I FIND MORE INFORMATION?

18.1 UKVI have recently published some new guides which may be helpful for employers on the new rules. This includes the following:

• 18.1.1 a helpful overview of the new rules. The guide covers the new Skilled Worker route we have discussed this afternoon as well as other immigration routes we have not touched on today. This is found at https://assets.publishing.service.gov.uk/government/uploads /system/uploads/attachment_data/file/910129/6.6784_HO_P BS_Employers_Guide_Update_WEB_1_.pdf; and
  
  
• 18.1.2 a guide to becoming a sponsor which can be found at https://assets.publishing.service.gov.uk/government/uploads /system/uploads/attachment_data/file/922739/Employers_gu ide_to_becoming_a_licenced_sponsor.pdf .