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UK Immigration rules

picking potatoes in the fields

Following the UK’s exit from the EU the rules relating to foreign nationals working and living in the UK were revised. It is important that UK businesses understand these rules and follow them, closely when employing foreign nationals

Entry requirements revolve round

  1. UK Points Based Immigration System
  2. UK Shortage Occupations
  3. The concept of “Tradeable” characteristics
  4. Other/specialist routes to work and study in the UK.

Points System
To be eligible to work in the UK an applicant must secure 70 points. These are totted up from a selection of eight characteristics. The first three characteristics are mandatory and the applicant must meet these full. The other five characteristics are termed “tradeable”. A sort of “pick and mix” approach for applications based on these “tradeable” considerations but with the proviso that the first three characteristics are fully met.

Shortage Occupations
Every job has a Standard Occupational Classification code, and each code has a designated skill level. The code determines whether the job is eligible for the Skilled Worker Visa route.

Other Entry Routes

  • Agriculture Visa
  • Health and Care Visa
  • Intra-company Transfer Visa
  • Graduate Route
  • Global Talent
  • Start up and Innovator Visa
  • Creative and Sporting
  • International Students and Graduates
  • Special Circumstances

Concrew Training’s courses on UK employment legislation cover all this and much, much, more

Tick Box Training is High Risk

The Law Sign

If you are scheduling low cost training, often internet based self-study training that uses a nothing or just a short tick box questionnaire at the end to validate the learning you may be putting your organisation at risk.

The recent Allay (UK) Ltd v Mr S Gehlen case made it clear that evidencing training in itself does not provide a defence against breach of legislation.

The training has to be effective that is to say management and employees alike have to adhere to legislation and when/if breaches occur action including retraining must take place.

Concrew Training offers courses that cover many key areas including

  • Data Protection, GDPR and PECR
  • Modern Slavery
  • Equality and Diversity
  • Defensible Documentation
  • Equal Pay
  • Redundancy
  • Tupe
  • Social Media rights and responsibilities
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Contact us today for more information on our highly effective high value training

Image Credit: The Law by smlp.co.uk used under CC BY 2.0

Post Brexit – Right to Work Checks

Boris Johnson Speaking

Carrying out right to work in the UK checks for European nationals post Brexit.

Employers must continue to carry out right to work checks for all workers before employing them, as was the case prior to Brexit. Employers can continue to use European Economic Area (EEA) and Swiss passports and national identity cards as evidence of an individual’s right to work in the UK until 30 June 2021.

Employers can also use the online checking service to confirm that a candidate has settled or pre-settled status and therefore has the right to work in the UK. However, up to 30 June 2021, candidates do not have to agree to share their status using the online checking service. They can provide their passport or national identity card as an alternative. Governmentguidancesuggests that, up to 30 June 2021, an employer that insists on seeing evidence of settled or pre-settled status risks a complaint of race discrimination.

Following the UK’s departure from the EU on 31 January 2020, a transition period was in place until 31 December 2020. EEA and Swiss nationals who were in the UK before the end of the transition period have until 30 June 2021 to apply for either settled or pre-settled status, which will give them the right to work in the UK.

There is no requirement for employers to carry out retrospective right to work checks for existing EEA and Swiss national employees to confirm that they have settled or pre-settled status. In other words, if an employer has conducted a compliant right to work check for an EEA or Swiss national before 1 January 2021, it does not need to repeat this.

EEA and Swiss nationals entering the UK from 1 January 2021 will not be able to apply for settled or pre-settled status. Because free movement between the UK and the EEA ended on 31 December 2020, they will require a visa to be able to work in the UK under the new immigration system. Therefore, to confirm the right to work of EEA and Swiss nationals arriving in the UK on or after 1 January 2021, employers will need to see evidence of their visa alongside their passport or national identity card.

EEA and Swiss nationals are not required to share their settled or pre-settled status prior to 30 June 2021. This may present an issue for employers with new starters between 1 January and 30 June 2021, as they may not know if the employee was already in the UK before 1 January 2021, and therefore whether they require a visa. Government guidance onright to work checksdoes not address this specific issue.

When does an employer need a sponsor licence?
An employer needs a sponsor licence if it intends to employ a foreign national who requires a UK visa, under certain immigration routes. From 1 January 2021, a new immigration system applies equally to European Economic Area (EEA) nationals (except Irish nationals) and other non-UK nationals. Prior to 1 January 2021, employers needed a sponsor licence to employ foreign nationals from countries outside the EEA under tier 2, or the skilled worker route, and certain other routes of the immigration system. Employers that do not currently have a sponsor licence will need to apply for one if they wish to recruit any non-UK nationals, including those from inside the EEA, under the skilled worker route (and certain other routes) from 1 January 2021.

An employer will not need a sponsor licence to employ an EEA national who has settled or pre-settled status, or to employ an Irish national. When an employer has a sponsor licence it can issue certificates of sponsorship to individual foreign nationals. The individual then uses the certificate to apply for a visa. Employers can sponsor an employee only if the role meets the minimum requirements relating to skills and salary.

What should an employer do if an employee’s application for settled status is not successful?
Employees who are European Economic Area (EEA) or Swiss nationals, who are in the UK prior to the end of the Brexit transition period on 31 December 2020, can apply for settled status, which will give them the right to remain indefinitely in the UK. An applicant who has not been resident in the UK for five years will be granted pre-settled status, which can be converted to settled status after five years’ residence. The deadline for applications for settled or pre-settled status is 30 June 2021.

Settled or pre-settled status can be refused on grounds of eligibility, for example if the individual is not an EEA national (or a qualifying family member) or is not resident in the UK. It can also be refused on grounds of suitability, for example if the individual has been convicted of a particularly serious crime or is deemed to be a threat to public security.

If an application is refused the applicant can apply again at any time up to 30 June 2021, submitting new information or evidence. In some circumstances, the applicant can apply for anadministrative reviewof the decision.

An employer could consider providing an employee with access to legal assistance for a further application or an administrative review. Ultimately, if the employee does not obtain settled or pre-settled status, they will not have the right to work in the UK and will need to apply for immigration permission under an alternative route.

Image Credit:Boris Johnson Brexit Presserby Number 10 used under CC BY-NC-ND 2.0