• Emily Gibson

2021 'Right to Work' Update

What Are the Employer ‘Need to Knows’ for Recruiting Non-UK Citizens in 2021

As we are all aware, the United Kingdom has left the European Union and has been in a transition period which ends on the 31st December 2020. Therefore, from the 1st January 2021 citizens of the UK and EU will need to follow new rules to travel, work and reside in the UK and EU.

We’ve had our fair share of new rules in 2020, but it’s important that we don’t forget about our new obligations, regarding employing EU workers as we head into 2021.

The HR patch is always here to support you, so whilst I would encourage a discussion on any individual matters regarding an employee’s right to work in the UK, here are a few simple questions answered about the new rules.

For the purposes of this article the term ‘EU nationals’ refers to all EU, EEA and Swiss nationals.

Do You Already Employ EU Nationals?

If yes, you do not need to make any immediate changes. Provided you carried out a right to work check before 1st January 2021, this does not need to be repeated.

However, all these employees who have been resident in the UK before the 1st January 2021 must apply for settled or pre-settled status if they wish to stay in the UK after the 30th June 2021. This is something you can support your existing employees with.

EU nationals who fail to apply for settled status before the deadline may no longer have a legal right to live in the UK.

What Does ‘Settled Status’ Mean?

‘Settled Status’ is a term used to describe what is officially known as ‘Indefinite Leave to Remain’ (ILR) and this will be granted to those EU nationals who are resident in the UK before the 31st December 2020, provided they apply in time. Settled status will allow these employees to keep the rights they currently have, such as work, study and access to public services.

People who have lived in the UK for at least five years are eligible for automatic settled status.

There are no specific requirements that an applicant needs to meet other than being a resident of the UK.

What Does ‘Pre-Settled Status’ Mean?

People that have lived in the UK for less than five years’ will be classified as ‘Pre-Settled’. Pre-settled status allows an individual to apply for settled status once they have been resident in the UK for five years.

As with ‘Settled Status’, there are no specific requirements that an applicant needs to meet other than being a resident of the UK.

Is ‘Settled Status’ Guaranteed?

No, unfortunately not. It is possible for someone to lose their settled status if they have a serious criminal conviction or have been absent from the UK for long periods of time.

New Employee ‘Right to Work’ Checks

Employers must confirm that their EU employees have the right to work in the UK and this will be done in the same way as you currently do, up until 30th June 2021 by viewing their passport or National Identity Card and following the correct steps to validate their right to work. You and your new employees can also use the online checking service.

You have a duty not to discriminate against EU nationals and, as such you cannot require them to prove their status under the EU Settlement Scheme until after 30th June 2021.

From 1st July 2021, your new hires from the EU will be required to show their permission to work in the UK, either by providing you with confirmation of their Pre-Settled or Settled Status. Full guidance is to follow once confirmed by the government.

Employing Direct from the EU

From 1st January 2021, UK legislation will treat ALL non-UK visa applicants equally, regardless of where they come from. Individuals from the EU, arriving after 31st December 2020 will not be able to apply for settled status and must apply for permission to work in the UK in advance.

As an employer you will need to hold a sponsorship licence if you choose to recruit directly from outside the UK (excluding Irish citizens).

If you do not currently hold a sponsorship licence, you can find out more about this on the government website.

There are three main routes for non-UK employees entering the UK workforce:

  • As a skilled worker

  • As a graduate having completed a degree from summer 2021 onwards

  • Via an intra-company transfer

There are some exceptions, whereby individuals may hold a visa without a sponsor such as the Global Talent or Youth Mobility Scheme.

How Will Business Travel be Affected?

There are several changes to consider from 1st January 2021 and I have outlined a few key facts for your to be mindful of when employees are travelling within the EU:

  • UK employees travelling to EU countries may need to apply for specific visas or permits, even if they will be staying for a short length of time. Each country has different requirements, you can check them here.

  • EU employees travelling to the UK will need to comply with new business visitor rules, and employees should remember that the UK will no longer accept national ID cards for entry to the UK from EU/EEA/Switzerland.

  • Travel to and from the EU will take longer because EU fast-track lanes will no longer be open to British travellers. Employees will need to allow more time to travel.

  • British passports will only be valid as an EU travel document if they have more than 6 months validity remaining and are less than 10 years old.

  • The European Health Insurance Card (EHIC) will no longer be available to British travellers. You will need to ensure British employees travelling to the EU have appropriate medical insurance.

  • The 90/180 rule means that British travellers may only stay 90 days in any 180-day period in the Schengen area. This will have implications for frequent travellers to the EU, especially as this time will take account of leisure time spent in the Schengen area. Different rules apply to Bulgaria, Croatia, Cyprus and Romania. You and your employees may find this short stay visa calculator helpful.

The UK’s departure from the EU is likely to cause some disruption to business as employees and employers adjust. The Government have created a helpful ‘Brexit Checker’. It will give you a personalised list of actions relevant to your business and individual situation to help you manage the transition more easily. You can find it here.

For specific help and support on right to work checks contact the HR patch on 01252 299 110 or email info@thehrpatch.co.uk

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