Brexit Immigration Law Update: A timely reminder of EU, EEA and Swiss Workers rights to live and work in the UK from January 2021.

At 11pm on 31 December 2020, the current transition phase will come to an end and the UK will officially leave the European Union (EU). At the moment, EU rules on trade and employment rights continue to apply in the UK; as of 1 January 2021, new arrangements will come in to force. Whilst the government has indicated that existing EU-based employment law will continue to apply post-Brexit, there is still uncertainty for the future impact on immigration and EU, EEA and Swiss migrants.

With little over 2 months to go, it is important that employers and their HR teams are both clear on EEA citizens’ rights to live and work in the UK from 1 January 2021 and what they need to be doing now to ensure their business is ready for the upcoming immigration changes. 

Current Position

The European Economic Area (EEA) includes all 27 EU member states plus Iceland, Norway, and Liechtenstein. Switzerland is not an EU or EEA member state, but Swiss citizens enjoy many of the same rights as EEA members. For the purposes of this article, when we use the term EEA, we are also referring to Swiss citizens.

Until 31 December 2020, EEA citizens are able to travel to the UK to live and work using only their passport or National ID card as evidence of their un-restricted access to the UK job market. From 1 January 2021, the rights of EEA citizens will change. What those new rights will be will depend on when the EEA citizen became resident in the UK and whether or not they have ‘the luck of the Irish’.

Post-Brexit Options for EEA business travellers and workers from 2021

1. EU Settlement Scheme (EUSS)

From 1 July 2021, all EEA citizens will need to have evidence of their right to work in the UK. For EEA citizens (and their non-EEA citizen family members) who are resident in the UK prior to 1 January 2021, that can be a simple matter of making an application under the EUSS. Under the EUSS, eligible EEA citizens and their family members can make a free online application for either Pre-Settled status (if they have been resident in the UK for a continuous period of less than 5 years) or Settled status (if they have been continuously resident in the UK for 5 years or more). 

A successful application under the EUSS for Pre-Settled status will permit the EEA citizen to continue living and working in the UK for 5 years, with rights to further extend their leave at the end of the 5 year period. A successful application for Settled status will allow the EEA citizen to remain and work in the UK indefinitely. In addition, both those with Pre-Settled and those with Settled status will be able to enrol in education in the UK, access the NHS for free, travel in and out of the UK without a visa and access public funds if they are eligible. 

Applications can be made under the EUSS until 30 June 2021. Whilst eligible EEA citizens may be able to afford putting off their EUSS application until the last minute, their non-EEA citizen family members would benefit from an early application under the EUSS. In addition, like most things, processing times for applications under the EUSS have been impacted by Covid. Therefore we would encourage all eligible EEA citizens and their family members who haven’t already made applications under the EUSS to do so as soon as they can.

The rules for Irish citizens are a little different and we’ll discuss these further below.

2. Frontier Workers

A frontier worker is an EEA citizen who works in the UK but is not resident in the UK. Frontier workers working in the UK prior to 1 January 2021 will be able to retain their frontier worker status.They do not need to make an application under the EUSS but, rather they will need to make an application for a Frontier Worker Permit.In order to continue working in the UK as a frontier worker beyond 30 June 2021, it will be necessary for frontier workers to present their EEA passport/National ID card and a Frontier Worker Permit at Border Control.

The government has promised that the Frontier Worker Permit Scheme will be up and running by the end of the year but it is not yet open for business.Relatively little guidance has been issued on this scheme thus far but we do know that applications will be free of charge and can be submitted online.

From 1 January 2021, anyone wishing to enter the UK to work, even if they do not intend to reside in the UK, will need to apply for a visa under the new Points Based System.

3. Irish Citizens

The UK has always had a very special relationship with the Republic of Ireland and, thankfully, despite Brexit, that relationship is set to continue.Ireland is part of the EU and the EEA and therefore eligible Irish citizens can make applications under the EUSS or apply for a Frontier Worker Permit.However, both applications are unnecessary.That is because Irish citizens’ rights to live and work in the UK will be completely unaffected by Brexit.

Simply providing an Irish passport or Passport Card (the Irish equivalent of National ID card), will be sufficient proof of An Irish citizen’s right to live and work in the UK both before and after 1 January 2021.

4. Sponsored Work Visas

EEA citizens travelling to work in the UK from 1 January 2021 that do not fall into the above 3 categories will need to secure a visa under the new Points Based System before travelling to the UK.Whilst there are many different types of visas available, it is likely that many of these visas will be secured under the revised Tier 2 category.

Those of us that have previously done battle with the Resident Labour Market Test (RLMT), will be pleased to hear that the Tier 2 visa category will be getting an (overdue) overhaul on 1 January 2021.Both the visa cap and RLMT will be scrapped and the required level of qualification will drop from Regulations Qualifications Framework (RQF) Level 6 (degree equivalent) to Level 3 (A-Level equivalent).In addition, the minimum salary threshold will be reduced from £30,000 to £25,600.

Although, these changes will not assist low skilled or minimum wage workers, it does open up a lot of opportunities for those roles that are slightly more experienced and/or skilled but would not previously have met the Tier 2 (General) visa criteria.

What can employers be doing now to prepare for 2021?

1. Ensure you hold reliable data on which of your employees are EEA citizens and therefore may be impacted by the forthcoming immigration changes.
2. If you haven’t already, communicate with the affected members of staff. Many will have long since taken the necessary steps to obtain the required documentation of their right to work beyond 30 June 2021. However, it is highly possible that others may well have been hindered by the pandemic. Therefore, a timely reminder to affected staff about the upcoming changes, the application deadline and signposting them to the necessary government information and applications, may be helpful.
3. Make sure you and your HR team understand what right to work checks they will need to undertake in relation to EEA citizens:
   • For any new EEA citizens you wish to employ on or before 31 December 2020, normal right to work checks should be undertaken. In these circumstances, an EEA passport or National ID will be sufficient evidence of the prospective employee’s right to work
   • Providing you have already undertaken a valid right to work check for any EEA citizen already in your employment prior to 1 January 2021, you do not then need to re-check their right to work on 1 January 2021 or on 1 July 2021;
   • For new EEA citizens (excluding Irish citizens) that you wish to employ from 1 January 2021, you will need to conduct the usual right to work checks. Until 30 June 2021, you can use their EEA passports, their National ID cards or the online Right to Work Check Service (link) as evidence of their right to work. If an applicant uses this service it will generate a share code, which you as the employer can then use to check their right to work via the Employer’s online checking service (link). Employers should note that they cannot require EEA citizens to show you their status under the EUSS until after 31 June 2021; and
   • Should you wish to employ an Irish citizen before or after 1 January 2021, or even after 30 June 2021, their Irish passport or Passport Card will be sufficient evidence of their right to work.
4. Review policies, contracts and handbooks to make sure that right to work and flexible/remote working terms and guidance are clear and up-to-date.
5. Consider whether you need a Sponsorship Licence to sponsor workers from outside of the UK from 1 January 2021 onwards. If you already have a Licence check that it covers the types of workers you might need and renew that Licence if it is soon to expire (at present, these can be renewed earlier than usual 1 month before expiry).

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Lynsey Blyth or Emily Edwards to discuss any issues you are facing.