Immigration checks: legal requirements

With the deadline for the grace period to apply for EU Settlement Status approaching, here is a summary of the requirements for employers:

EU/EEA nationals who were resident in the UK by 31 December 2020 will be able to prove their right to work in the UK via status received under the EU Settlement Scheme. 

  • As stated, there is a grace period for employees to apply to EU Settlement Scheme, until the 30th June 2021 and employers should already know if their current employees have applied for settlement status. If you are unsure and wish to remind employees of this need, ensure that all employees are reminded. Do not make assumptions about who this might affect, for fear of unwittingly discriminating against particular employees.
  • The process of applying for Settlement Status does not provide “proof” via a card, or stamp on a passport but employees can go online and access their status via the Borders Agency and print off the proof of their status.

Migrant workers entering the UK after 1 January 2021 must apply via the new points-based system. This includes individuals from the EU/EEA who were previously able to come to the UK to work without any requirement to seek permission and who do not have EU Settlement Status (after 30th June).  Under the points-based system, employers must generally become a “sponsor” and issue a sponsorship licence to an individual who must meet a certain “points” threshold depending on the particular immigration route chosen. Points are awarded for various attributes, including having a job offer and English language competency. 

A summary of the various visas is below:

  • Tier 1 Visa: This visa category is for ‘high-value migrants’ from outside the EEA. For people who have at least £2,000,000 available to invest in active and trading UK registered companies.
  • UK Innovator visascheme, for people with access to at least £50,000 to invest in the UK to set up a UK business with endorsement from endorsing body. 
  • Global Talent visascheme, for people endorsed by a designated body as a leader or emerging leader in the fields of science, humanities, engineering, medicine, digital technology, fashion or the arts.
  • Tier 2 Visa: This category is for ‘skilled workers’ from outside the EEA with a job offer in the UK from a Tier 2 Sponsor. The Skilled Worker visais for workers who have a skilled job offer and a certificate of sponsorship from a UK employer with a valid sponsor licence.  The Skilled Worker visa applicant will need to gain enough points under the UK visa system
  • Tier 2 (Intra-Company Transfer) visaFor employees of a multinational company who are being transferred to the business’s UK branch. Applicants must have a valid certificate of sponsorship from their employer. There are two sub-categories:
    • Long term staff
    • Graduate trainee
  • Tier 2 (Minister of Religion) visaFor workers who’ve been offered a job, such as missionary or minister of religion, within a religious community organisation in the UK. 
  • Tier 2 (Sportsperson) visaFor elite sportspeople and coaches. The applicant must be recognised or endorsed by their sport’s governing body.
  • Tier 3 Visa: This category was designed for low-skilled workers filling specific temporary labour shortages. The Government has so far not allocated any visas under this scheme which has caused an outcry from farmers who are desperately short of workers.
  • Tier 4 Visa: This category is for students from outside the EEA who wish to study in the UK. Applicants must have a place at a registered UK educational establishment before they can apply. 
  • Tier 5 Visa: This category contains six sub-tiers of temporary worker including creative and sporting, charity, religious workers, and the youth mobility scheme which enables about 55,000 young people every year to work in the UK on working holidays.  

There are severe financial penalties and the possibility of imprisonment, if you knowingly employ an illegal worker or had a reasonable belief that the individual did not have the right to work in the UK. There is an additional fine for employers who failed to undertake correct checks of workers, of up to £20,000 per illegal worker.  This makes it vital to take correct advice if there is any doubt over the eligibility of a prospective employee. 

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