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Published 23 November 2020
The UK’s new immigration system will come into force at 9am on 1 December 2020, laying out the detailed requirements that employers and individuals will need to meet in order secure leave to enter or remain in the UK. Marking a significant shift from the past the new system will apply to EEA and Swiss nationals in the same way as third country nationals once the Brexit transitional period ends at 11pm on 31 December 2020.
Some of the key changes set out in the Home Office’s statement to Parliament are set out below.
The Home Office will have wide ranging new powers to cancel, curtail or revoke pre-settled or settled status granted to EEA and Swiss nationals and their family members under the EU Settlement Scheme. The new powers mean that those who have already been granted settled or pre-settled status could still lose it if one of a number of triggers apply such as:
All of these powers are subject to the Secretary of State or an Immigration Officer satisfying themselves that it is proportionate to cancel, curtail or revoke settled or pre-settled status.
For the 3.7 million people already granted settled or pre-settled status, inevitably, some will be subject to their settled or pre-settled status being taken away or cut short. If this does happen, affected individuals will have a right to challenge the decision and it is important that they get legal advice when they do.
From 1 January 2021, EEA and Swiss nationals who travel to the UK will need permission to work in the UK. As visitors, they will only be permitted to carry out limited business activities such as:
Without being granted permission to work in the UK under the Immigration Rules HC 395 (as amended), EEA and Swiss visitors will not be allowed to take employment or do work for an organisation or business in the UK. Doing so would be a breach of immigration law which is a criminal offence if the visitor knowingly breached the Visitor visa conditions.
Frontier workers i.e. EU, EEA or Swiss citizens who are employed in the UK prior to 31 December 2020 but live elsewhere can apply for a frontier worker permit which will evidence their right to continue working in the UK after 31 December 2020. Applications for frontier work permits will open on 10 December 2020.
Swiss contractors, including companies and self-employed individuals, who have a pre-existing contract will be permitted to come and carry out work for 90 days a year up until 31 December 2025.
On 1 December 2020, the Tier 2 Skilled Worker will replace the Tier 2 (General) visa category and become the main route to come and work in the UK.
There are significant new changes under the Tier 2 Skilled Worker category which will streamline the process for employers and allow for visas to be obtained more quickly. Of these, the removal of the Resident Labour Market Test will mean that employers will no longer have to advertise the role they wish to sponsor. Instead, they will have to satisfy the Home Office that the role is a genuine vacancy.
The skill level for jobs eligible for sponsorship will reduce from RQ6 (degree level) to RQF3 (A level) allowing more roles to be sponsored under the Tier 2 Skilled Worker category than is possible currently. In part, this will offset recruitment issues arising from the end of Free Movement and allow businesses to continue to recruit the skills they need.
The minimum salary level will also be lower at £25,600 per annum although employers will need to ensure that they pay the going rate for the job as specified in the occupation codes. Unlike the current Tier 2 (General) category, points under the Tier 2 Skilled Worker route are tradable meaning that applicants can still qualify for a visa if they have desirable attributes such as PhD relevant to the role, the role being in the health or education sector, or the job being on the shortage occupation list.
The maximum period of leave permitted under Tier 2 (General) of six years is also being removed so that under the Tier 2 Skilled Worker category, there will be no restriction on the length of time applicants can spend in the UK under Tier 2 Skilled Worker. This, combined with the removal of the cooling off period, will redress some of the tricky situations that applicants found themselves in under Tier 2 (General).
The renamed Tier 2 Intra-Company Transfer visa will allow long term transfers as well as short term transfers which are part of a structured graduate training programme.
Under the new category, the cooling off period will be eased to allow applicants to have a Tier 2 Intra-Company Transfer visa for five out of six years or nine out of 10 years for high earners. As the category will not lead to indefinite leave to remain, applicants can switch to Tier 2 Skilled Worker in order to start a period of continuous residence leading up to settlement which was not possible previously.
Tier 2 Intra-Company Transfer will still require applicants to have worked outside the UK for their sponsor or a connected entity for at least 12 months (or 3 months for graduate transfers) with the exception of high earners. However, under the new Immigration Rules, applicants can switch to Tier 2 Intra-Company Transfer in country where they have worked for the sponsor or a connected entity continuously and have the requisite duration of overseas employment.
The salary and skill thresholds will not be as advantageous as the Tier 2 Skilled Worker route, however, which makes the Intra-Company transfer route less attractive from an immigration perspective.
If you would like to discuss any of the above issues with our Immigration Team, please feel free to book a free 30 minute discussion through our website.
Laura Berry, Jamie Tomlinson
Harald Loeffler, Neil Warwick