Brexit Immigration Questions
We have recently been answering a lot of your questions regarding Brexit and immigration. To help guide you through this time, please see a collated list of recent questions and their subsequent answers, separated by topic.
Please remember that the answers to these questions are representative of the time when they were written (1st December).
If there are any points you would like clarity on, or to ask for more information, please contact Sandra.Toppin@k2corporatemobility.com
As a Tier 2 general approved sponsor, is there any admin we'd need to do to confirm our status as an approved sponsor for EU/Non-EU workers in this new scheme?
You will need to look at your workforce at the moment to see what EU nationals you have currently working for you and ensure that they apply for the EU settlement scheme before the 30th of June next year.
Also, with regards to the requirements that you have as an employer to the prevention of illegal working, you have obligations to ensure that your documents are in an orderly fashion. This is something that we would work with you on, if and when you are applying for a sponsor license, and we can also assist with audit requirements to ensure that you're compliant.
How long does the Government expect applications under the New Points Based System to take, for managing recruitment timeframes when looking to hire from outside the UK?
A great question depending on whether you are taking covid-19 into account, or not!
From start to finish (assuming you have your sponsor license), regarding the issuance of a Certificate of Sponsorship, to include gathering of the supporting documents, reviewing and checking that they meet the criteria, we would anticipate this generally taking around 3-4 days to issue and be processed by the Home Office. Once that is granted it can then be used to apply for entry clearance from the candidate's home country. The EU App is theoretically going to be introduced to make the process quicker for EU applicants, in terms of decision time, and should take around five days to be approved and an entry clearance visa issued.
Outside Europe you are applying to the local embassy or consulate. There are various application routes where you can take advantage of which will dictate the processing time of an application. You can pay an extra fee, £900 or thereabouts per applicant, and normally you would get a decision within 3 or 4 days. Now, at the moment, a lot of the services are on hold because of Covid-19 with processing times taking at least 15 working days.
Equally within the UK, there are no premium routes available. Normally a Biometric Residence Permit application could take 1-5 days, however they are currently taking at least eight weeks, and possibly a bit longer.
If you're looking at an Indefinite Leave to Remain application, at the moment only the standard route is available and that means that it could take up to six months to process.
Covid-19 is really messing up standard work processing times, and you need to be factoring that into the management of an assignment.
When will the new List A and List B of acceptable documents of the Right to Work in the UK be published?
The new List A and List B is now available on the Government website. New Addendum and Policy guidance have now been published.
English language test: should it be a recent one? How old can be the evidence of passing a language exam?
Normally an English language test is valid for about 2 years before they need to be retaken.
Is there a max number of years that you can hold a Tier 2 skilled worker visa?
The new immigration rules have been published and we are now just waiting for the detailed guidance to be issued. We can confirm that there is no limit to the length of time you can hold a Skilled worker visa, with the potential eligibility of making an Indefinite Leave to Remain application once having held the Skilled worker visa for a continuous period of 5 years.
With the ICT visa category, the maximum amount of time you can hold this visa is five years if your salary is less than £73900 and up to 9 years is it is above £73900.
Is the pre-settled or settled status granted immediately on application to the EU settlement scheme or is there a turnaround time before it is approved?
There is a turnaround time and it can take up to 10 working days or even longer, depending on the application. The Home Office may come back and want more information, more documentary evidence. So it’s not done straight away, it can take a few days for the approval to come through.
When would someone apply for an ICT visa when the migrant employee would also meet the Skilled Worker visa requirements?
Very simply, the English language requirement. If somebody wanted to transfer to the UK within the ICT route and wasn't really particularly likely to meet the English language requirement then the ICT route would be the one to follow.
What are the requirements for an ICT visa holder to be eligible for switching to Skilled Worker category from next year?
Assuming that you are switching from one employer to another just for the moment, (because it's not clear whether you can do so within the same company); all that you will need to do is make sure that you meet the 70 points required for the role that you will be switching to. So it's a genuine offer, you've then met the English language test, either through your nationality, or whether you have a qualification or you've done an English language test, the salary is at the appropriate level- then you will be switched to that category.
Where would we apply for visas/permits after 1st January? At the consulate or can we do so online?
If this question refers to EU nationals applying for entry clearance, once the Certificate of Sponsorship under the Skilled Worker or ICT category has been granted, the guidance is stating that EU nationals will have the option to apply for the visa via an app on their phone, rather than having to attend an embassy or consulate to do their biometrics etc.
Non-EU nationals will still have to follow the current rules and processes where they would make an appointment to a consulate or embassy to provide their details and have their fingerprints taken.
Will post-Brexit criminal background checks be tougher?
At the moment the background checks are already quite tough. When you look at an application, the requirements to meet criminal record checks, terrorist activities, and so on; these questions cover more pages of an application than any other part. I don't think they're going to be any tougher.
We have many Non-EU Nationals in the company who work for us based on residence permit and BRP Card (Leave to Enter type of permit). How might these changes impact them if they are not in UK on 1st of January 2021 for any reason?
Also, If they live in UK before December-2020 will they have to go through the New Points Based System as well (cases like Spouse Visa, ILR, etc..)?
For anybody who's here before 31st December, I would suggest that they look at trying to get their applications in as quickly as possible, so that they are in the system, and that it is evidenced. They can provide that evidence if they then leave the UK, and then come back in after that date.
The people who are already here on various visas, those visas will remain valid after the end of the year.
The only thing is that if you are on a permanent residence card that was issued as an EU national, you are supposed to get that switched into a settled status visa. So that's something that you can have a look at, as well.
Then for spousal visas etc- there may be slightly different rules relating to those depending on whether it is actually a spousal visa or dependant visa they are on, or something else. You would need to check and get further advice if needed.
How long will it take to process a Skilled Worker visa?
There are two parts to this question. The Certificate of Sponsorship is the first stage of the process. Once all of the supporting documents are gathered together, once the details of the job, role, salary, skill level and qualifications etc, have all been checked and double checked, and the individual is eligible for the skilled worker visa; then we can process the Certificate of Sponsorship. That generally takes between 3-5 days, depending on the process with the Home Office and how quickly they can issue the certificate.
Once that has been granted, the second stage is for the person if outside the UK, to apply for entry clearance to get obtain a visa to come back to the UK.
If they're an EU national, they will be able to download an app and make their application online. If outside the EU, then they would need to attend an embassy or a consulate, book their appointment for biometrics, and that generally takes (the latter part) up to 15 days. There aren't many speedy routes available at the moment, because of Covid-19. The app for EU nationals is supposed to be a little bit quicker, and usually takes about 5 days.
Finally, if you're looking at transferring somebody who's already in the UK, the Certificate of Sponsorship process is the first stage, then there's an application for a new Biometric Residence Permit. The individual will need to attend a biometric centre within the UK. At the moment, again there are no fast track routes due to Covid-19, so the application route is possibly going to take up to eight weeks to complete. However, Covid-19 concessions will allow the person to start work straight away whilst waiting for the decision on the application if they are ‘switching’ to a new employer.
How long would the UK biometric tests normally take (i.e. not in covid-19 times)?
If you're in the UK making the application that the Biometric Residence Permit Application, in normal circumstances, there are different routes you can take, which have different time lengths. There is a one day service, five day service, and the standard route is an eight week service.
Overseas, generally there is a 15 day process for entry clearance applications. There are options for additional premium routes. You can pay up to £900 per person and get a decision within 2-3 days for entry visas to be issued, and then you can come to the UK.
Does the new immigration system for the UK apply for even 1 day of productive work in the UK?
Yes. Anyone coming to the UK for any work, will need the right permissions to do so. Non visa nationals do not need prior permissions to come to the UK if they are coming to attend a meeting, or training, however if they are coming to the UK for work, then yes they will need the right permissions to do so.
Do you think that UK nationals will have to have a work permit for even 1 day of productive work in any EEA country?
It is unlikely that a UK national will be allowed to do any productive work in an EU country. However, some countries have work permit exemptions in place for non-EU nationals, which were in place prior to the EU being formed. However, these are based on national laws which vary from country to country. For example, in Sweden it is possible to do certain work without holding a work permit, but this depends on the type of profession or duties to be carried out. If a non-EU employee is required to work for short periods (generally less than 3 months), we need to review it on a case by case basis.
What about right to work checks? Those who move to the UK after 1st Jan 2021 need a skilled worker visa. Those who are already in the UK do not need a skilled worker visa. Do we need to gauge during the recruitment process whether they were in the UK already?
Yes, they do. Once they have completed the EU settlement scheme, they will be given a unique number once the application has been approved, for either settled or pre-settled status.
This unique number should be given to the employer, and they can check the immigration status of the individual via the home office website, which in turn will confirm their status, which should be printed off and kept on file for audit purposes.
Once the changes to the immigration rules commence from 1st January, all employees should have their right to work checked, in the same way, passports certificates sponsorships and their visas and BRP cards kept on file.
What about EU employees working only part of their time in the UK, commuting between countries according to business needs?
Once the person has registered and got their EU settlement scheme settled or pre-settled status, the important thing to note is that once you have settled status you can leave the UK for up to five years and not lose it, as long as you come back in and reactivate it within 5 years.
On the pre-settled status, as long as you don't leave the UK for more than two years in one go, you don't lose pre-settled status. However, there are criteria in terms of time in the UK towards meeting settled status, having been given pre-settled status. I.e. you should not be out of the UK for any more than six months in any 12 month period. However, there is one period of up to 12 months you are allowed within the five years.
The most important thing to get across is in terms of the pre-settled status, is to try and keep your absences in each year to less than six months, you will then be able to qualify under the settled status when that time comes.
Will EU nationals need a passport to enter the UK vs their national ID card?
The current understanding is that ID cards are also eligible, as well as passports.
However, when we are processing certificates of sponsorship, you need to include passport details on the Certificate of Sponsorship. So that may well infer that you will need a passport rather than an ID Card for a Skilled Worker category visa.
Is it legally allowed to ask our employee to prove that (s)he applied for the (pre)settled status?
Employers should not be asking current EU staff members already in the UK for evidence that they have applied for the EU Settlement Scheme until after 30 June 2021.
Current EU national employees: on 1st July 2021 will employers be required to actually check they have done their EU Settled Status in order to continue employing them?
Yes, and the confirmation of settled or pre settled status should be kept on file.
What happens if an employee does not apply for settled/pre-settled status by the deadline?
If they don't apply by the deadline, they will then not to be eligible to meet the criteria. However, if it was an exceptional circumstance, there may well be some wiggle room to convince the Home Office to accept the application. Otherwise, if they don't apply then they will then be required to meet the new immigration system and will have to apply for a Skilled Worker visa or ICT, whichever is relevant.
Will EU nationals with EU Settled Status be able to bring family members in the UK from next year?
Certainly, yes. In terms of the process, you apply under the scheme. EU nationals with EU national family members under the age of 21 will be able to register to the scheme. Also, non EU nationals married to, or in a relationship akin to marriage with an EU national are also eligible to apply to the scheme as well as long as they were in the relationship prior to 31st December 2020.
How does this effect employees in Ireland, who may spend time or work in the UK? are they treated as UK nationals or EU Non nationals?
Irish Nationals working in Ireland coming to the UK are not affected. Irish nationals are part of the common travel area, and they are not required to apply for the EU Settlement Scheme.
When you say they 'must be resident in the UK by this date to quality' - what does resident mean? E.g. can they arrive in UK on 28th December, staying in an Airbnb, and still be eligible to apply? Or, do they need to be in more permanent accommodation, such as rental property?
You need to be in the UK before the end of the year. If you can evidence that you're here, i.e. you have a flight ticket or ferry ticket, to show that you've arrived in the UK, then that should be enough. Ideally, I wouldn’t want to suggest you leave it right until the last minute- unless you have to.
In essence, yes, being in the UK before the end of the year is sufficient.
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