Immigration law after Brexit

EU Settlement Scheme

As a result of Brexit, free movement for European nationals in the UK has ended. The UK government introduced the EU Settlement Scheme (‘EUSS’) as a way of allowing EU nationals resident in the UK before 11pm 31 December 2020 to secure continued rights of residence under UK immigration laws post-Brexit.

European nationals and their family members who have amassed a continuous period of residence in the UK of at least five years, which began before 11pm 31 December 2020, may be eligible for settled status. Although not all European nationals need to apply to the scheme. Some European nationals may already have indefinite enter or leave to remain in the UK under existing UK immigration laws. Irish nationals do not need to apply.

‘Continuous residence’ is usually defined as meaning a period of residence that is not broken by absences from the UK of more than six months in any given 12 month period. It is also possible to have a single period of absence from the UK of up to 12 months for an important reason such as pregnancy, childbirth, serious illness, study, vocational training or an overseas posting or because of COVID-19.

Those individuals with less than five years continuous residence may be eligible for pre-settled status which is a grant of limited leave to remain for a period of five years, with the possibility of applying for settled status in future, if eligible.

The deadline for most people to make an initial application to the EUSS was the 30 June 2021. In certain circumstances, there is scope to submit a late application provided the applicant can demonstrate they have reasonable grounds for missing the application deadline. Examples of ‘reasonable grounds’ include:

• Where the applicant is a child (including children in care and care leavers)
• Where the applicant lacks physical or mental capacity and/or has care needs
• Victims of modern slavery
• Applicants prevented from applying due to being in an abusive or controlling relationship or situation
• Other compelling practical or compassionate reasons.

Where the applicant has provided a National Insurance number with the application, upon receipt the Home Office will carry out automated checks with other government departments such as HM Revenue and Customs and the Department for Work and Pensions. The purpose of these checks is to establish what those records show about the applicant’s residence in the UK. If those checks confirm that an applicant has been resident in the UK for a continuous five-year period, and the applicant has also confirmed that they have not broken their continuity of residence by way of a self-declaration on the application form, no further evidence will be required. It is however possible for applicants to electronically upload documents in support of their application to evidence their qualifying period of residence.

Successful applicants will be granted either settled status (indefinite leave to remain) or pre-settled status (limited leave to remain) and will be entitled to continue to live and work in the UK.

Frontier Worker Permit

Under UK immigration laws, a frontier worker permit allows EEA nationals who are primarily resident overseas, but who regularly worked in the UK prior to 11pm on 31 December 2020, to continue to work in in the UK post-Brexit.

An individual will be a frontier worker if, immediately before the end of the Brexit transition period, they were, and have continued to be:

• An EEA citizen
• Not primarily resident in the UK
• A worker, self-employed person in the UK or a person treated as a worker or self-employed person in the UK under the Frontier Worker Regulations

In order to maintain frontier worker status, the worker must usually continue to come to the UK for work or self-employment at least once in every rolling 12-month period from their first relevant instance of work or self-employment in the UK.

Post Brexit points-based system

Those European nationals and their family members who are not eligible to apply to the EUSS or obtain a frontier worker permit will need to apply for entry to the UK under the wider UK immigration rules. Most work routes fall under the points-based system, which was first introduced in 2008. There have been various changes to the available points-based visa routes over the years and whilst the scheme is described as ‘points-based’ the reality is that each visa category has a fixed set of requirements to be met, for which points are attributed.

Skilled worker visa

The most common work route under the points-based system is the skilled worker visa. The skilled worker route was introduced in December 2020 in anticipation of the end of free movement. It replaced the Tier 2 (General) migrant route. The two routes are largely similar, although some of the main requirements for sponsored work have been relaxed. The main changes include:

• Scrapping the resident labour market test;
• Reducing the minimum skill level from RQF level 6 to RQF level 3 (A-level equivalent);
• Reducing the minimum salary threshold;
• Removing the cap on the number of skilled workers;
• Lifting the six-year maximum length of time that can be spent in the UK in this immigration category.

The fact that the resident labour market test has been scrapped will be welcome news for many employers. The test required employers to advertise positions, usually for a minimum 28 day period in prescribed mediums, before being able to hire foreign workers. This often led to frustrations with employers who needed to be able to recruit immediately or where they found themselves having to repeat the process if it had not been carried out to the Home Office’s exacting standards.

The first step to sponsorship for any employer is to obtain a skilled worker sponsor licence from the Home Office. We recommend this is done as soon as possible and professional advice is sought so that you are aware of your duties as a sponsor to ensure compliance with wider UK immigration laws.

Once a licence is in place, the potential employee needs to meet various requirements to make a successful visa application. These include having a job offer from an approved licenced sponsor. The role has to be in an eligible occupation and the salary needs to meet the minimum salary threshold for sponsorship, or the ‘going rate’ for the role, whichever is higher. This typically means employers paying a minimum salary of at least £25,600 per annum although the minimum salary can be reduced to £20,480 if the applicant is able to ‘trade’ points based on certain specific characteristics, for example if the role is in a ‘shortage occupation’ or if the individual has a PhD relevant to the job. In addition, the applicant needs to speak English and be able to support themselves financially.

Skilled workers are tied to their sponsored employer for the duration of their visas and will be eligible to apply for indefinite leave to remain after a period of five years continuous residence on this route. Should a skilled worker wish to change jobs, they will need to find sponsored employment with a new employer and make a new skilled worker visa application to remain in the UK, or be able to switch into another immigration category which does not require sponsorship.

Sponsor free employment

Not all work routes require an employer to sponsor the visa application. There are various visa routes that sit under the highly skilled banner, which permit sponsor free employment in the UK.

Global talent

The first is the global talent visa, formerly known as Tier 1 (exceptional talent). This route offers individuals a greater degree of flexibility, allowing them to work on an employed or self-employed basis. Furthermore, there is no minimum salary threshold and the applicant is free to work for the employer of their choice.

Key to the success of a global talent application is obtaining an endorsement from a Home Office approved endorsing body. This is the first stage of the application process and requires the applicant to prepare a portfolio in support of their application, showcasing their experience. Endorsements are awarded to those able to demonstrate that they are world leaders, or have the potential to become world leaders, in their chosen field. There are a number of designated endorsing bodies covering a wide variety of specialisms. These include the Arts Council England, the British Academy, the Royal Society, the Royal Academy of Engineers, Tech Nation and UKRI.

This route is open to EU nationals on the same basis as non-EU citizens, so EU nationals with a global talent visa will be able to come to the UK without a job offer. It offers a route to settlement in the UK after a period of three or five years, depending on the type of endorsement held by the individual.

Graduate routes

Foreign students who complete their degree qualification in the UK are eligible to apply for an extension of stay in the UK under the graduate route. Applications must be submitted prior to the expiry of the applicant’s student visa. Successful applicants will be granted further leave to remain in the UK for a two year period after completion of their course (or three years for PhD students). During this period, those on the graduate route are free to work in the UK (including self-employment and voluntary work), but cannot work as professional sportspeople.

The high potential individual route was introduced for overseas graduates in May 2022. This route is open to those who have graduated from one of the world’s top 50 universities in the past five years. In order to be eligible, the applicant’s university has to be included in list of the top 50 global universities in at least two international ranking systems designated by the Home Office. Successful applicants will receive a two year visa permitting them to work in the UK.

Low-skilled workers

Low skilled work is a term usually used to describe roles which do not require formal qualifications and/ or positions which are low paid. There is very limited scope under our immigration laws for low skilled workers to secure UK work visas. This is a cause for concern for many sectors, particularly those that were heavily reliant on EU migrants to fill these roles.

There is a temporary worker route which provides an avenue for seasonal workers in the horticultural and poultry production industries. These routes are however only designed to offer short term relief to employers, with workers in the horticultural sector permitted to come to the UK for a maximum of six months in any 12 month period. With poultry workers, the period is shorter (between 18 October and 31 December each year) and intended to cover the increased demand in the run up to the festive period.

The Youth Mobility Scheme is another route that the government points to as permitting low skilled workers, with visa recipients able to live and work in the UK for up to two years. However, this route is not currently available to EU workers. It is limited to nationals aged between 18-30 of a set list of countries, including Australia and New Zealand. Annually there are less than 60,000 places allocated amongst the eligible countries. India is the latest country to be added to the scheme following a reciprocal arrangement with the UK government. However, unlike other nationalities, the scheme for Indian nationals will require applicants to hold a bachelor’s degree and is therefore focused on skilled workers.

Despite the challenges facing many businesses post-Brexit the UK government decided not to introduce a dedicated low skilled visa route. Instead the government is advocating for businesses to invest in more training, development and automation as a solution to the current labour shortages. Therefore, employers will have to look to British and Irish citizens, settled migrants and other individuals with the right to work in the UK to fill low skilled vacancies.

Alternative options

There are a range of other visa routes which are available to European nationals wishing to move to the United Kingdom. These include visas which permit the applicant to work, study and join their family in the UK.

Our team has years of experience assisting individuals and businesses navigate the complexities of the UK immigration law and is very well placed to provide expert guidance on the options available to EU nationals post Brexit.

Brexit related law services

Harper Macleod is a full-service law firm and understand that your business immigration matters will often form part of a wider business strategy and require more than immigration law expertise. So you’ll benefit from the knowledge contained within one of Scotland’s leading law firms, which means we’re able to draw on specialist solicitors in other disciplines. If you are looking for assistance in navigating immigration law intricacies, contact our immigration law team for advice and representation.