Beyond Brexit: The UK’s new Immigration System

The EU Settlement Scheme is the process by which EU citizens who were living in the UK by 31 December 2020 can apply for pre-settled status (also known as limited leave to remain) or settled status (also known as indefinite leave to remain). Relevant family members can also apply.

Obtaining settled status, which is granted to EU citizens who can show that they have lived in the UK for at least five years, means that the individual is free from immigration control and does not have to make any further immigration applications (as long as they do not leave the UK for more than five consecutive years, or four years for Swiss citizens). Those with settled status have the same rights to live, work, healthcare and welfare as UK citizens.

EU citizens who have not lived in the UK for five years can obtain pre-settled status. They will have to make a further application under the EU Settlement Scheme for settled status once they have lived in the UK for five years (if they wish to remain). Whilst they have pre-settled status, they have the right to live, work and healthcare in the UK.

All EU citizens who arrived in the UK before 1 January 2021 can make an application under the EU Settlement Scheme. They must do so before 30 June 2021 (unless they have a ‘reasonable grounds’ for missing the deadline).

Employers and education providers do not need to sponsor an EU citizen who has settled or pre-settled status or who has made an in-time application under the scheme.

Most applicants will commence the application process for either settled or pre-settled status via the ‘EU Exit: ID Document Check’ app. If a person has a national insurance number, this is usually sufficient for the Home Office to be able to check that they have been residing in the UK. Those who do not have a national insurance number, and this may include newly arrived EU nationals, will need to review the documents that can be provided to support their application.

There are no government fees involved in making an application.

There is no minimum residence requirement to apply for pre-settled status. As long as the applicant is in the UK when the application is filed, can provide a national insurance number or meet the documentary requirements, the application will be successful. This is providing the application does not fall for refusal based on criminality grounds. If the applicant lives in the UK but is temporarily abroad, they may be able to submit their application from overseas.

In the case of families, children are not automatically granted status just because their parents have applied for, or obtained, it under the scheme. An application must be made for each family member.

Those with pre-settled or settled status can view and provide evidence of their status via an online tool.

The general information provided here regarding EU nationals will be of relevance to the majority. However, there may be certain scenarios, especially in relation to EU nationals who have resided in the UK for some time or those with complex situations, where other options are more suitable.

EU citizens who moved to the UK before 1 January 2021 can make an EU Settlement Scheme application, as referred to above. For students and workers, this applies even if their course or job won’t commence until later on. They must submit their application before 30 June 2021 (unless they have a ‘reasonable grounds’ for missing the deadline).

Importantly, this group of EU citizens will not have to apply under the new immigration system and the employer or education provider will not have to sponsor them.

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Example 1: Andras is an Austrian national. He moved to the UK on 28 December 2020 to commence a three-year position starting on 8 January 2021. As long as he meets the requirements, Andras will be able to apply for pre-settled status, commencing his application via the app. The process is free and generally fast and simple. Andras’ pre-settled status will enable him to work in the UK without needing to complete any further immigration applications. If his wife and children move to the UK with him, they will also be able to apply for pre-settled status. Andras (and his family) will be able to work/study without restriction and will be able to obtain settled status after five years, again at no cost (based on current legislation). 

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It is essential that Andras submits his application before 30 June 2021.

As explained above, a new immigration system has been designed for EU and non-EU nationals. Most EU workers and students who move to the UK from 1 January 2021 will need to be sponsored (in the same way as non-EU nationals) and obtain a visa. They will need to pay visa and other associated fees, which can be considerable.

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Example 2: Steffi is a Danish citizen. She is intending to move to the UK on 3 March 2021 to commence a course of study on 10 March 2021. Steffi has therefore missed the cut-off date under the EU Settlement Scheme. She will need to be sponsored and use her CAS to obtain a visa under the Student route. A three-year visa to study in the UK costs £348 plus the Immigration Health Surcharge (IHS) of £1,410 (for a three year visa). The upfront immigration cost will be £1,758. Steffi will be subject to the conditions of stay as set out in her visa, including restrictions on work whilst she is in the UK as a student. Her student visa will not lead to settlement in the UK. If she moves to the Skilled Worker route after her studies, that will cost her £4,528 for a five year visa, based on today’s visa and IHS fees. If she applies for Indefinite Leave to Remain, that’ll cost another £2,389. If her family move to the UK with her, they will also need to pay for visas and will also be subject to conditions of stay.

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As you can see, the difference in the upfront costs for Andras and his family and Steffi and her family are significant.

The government’s position is that until 30 June 20201, employers only need to check the passport or ID card to confirm that the employee/prospective employee is an EU citizen. They do not need to check if they have applied under the EU Settlement Scheme. Given the deadline of 30 June 2021 for EU Settlement Scheme applications, they are in fact discouraged from doing so by the Home Office to avoid discrimination – this is made clear here.

We can expect that the usual wider range of right to work checks and sanctions will be in place for EU citizens after 30 June 2021, but the government is yet to publish details on this.

Education providers that hold a sponsor licence to sponsor students must ensure that those who are subject to UK immigration control have the right to study. Unfortunately, the government has not yet published similar information regarding right to study checks for EU students.  However, in our view, again taking into account the the deadline of 30 June 2021 for EU Settlement Scheme applications, it is highly unlikely that the Home Office would expect education providers to carry out more stringent checks on EU students than it requires of employers in relation to EU workers, especially in view of the risk of discrimination. We have asked the Home Office to confirm that our understanding of their position is correct and will update our website as soon as possible.

In general, businesses and education providers that wish to recruit both EU and non-EU workers and students from 1 January 2021 will need a sponsor licence. If they do not already have one, they can make an application for one now. Sponsors that already have a sponsor licence will be able to continue to use it.

In relation to the UK’s schools, currently only independent schools are permitted to hold a sponsor licence to sponsor international students. The government has confirmed that there will be no change to this. Unfortunately this means that it will not be possible for other schools to sponsor EU students who come to the UK from 1 January 2021. They will be able to continue to teach EU students who have obtained, or are able to obtain, pre-settled or settled status. They will also be able to continue to teach those who come to the UK after 1 January 2021 and who have another type of visa, for example, to accompany a parent on a work visa.

We have been helping employers and education providers obtain sponsor licences since the sponsorship system began in 2008. We will be pleased to help you through the process. Please contact us and one of our team will provide you with information on our fixed fee options.

You can find further information on how we can assist you in obtaining a sponsor licence for workers and in relation to the sponsor duties here, and for students here.

EU citizens who move to the UK after 1 January 2021 for work or study purposes will need to be sponsored. Employers and education providers will therefore need to request more CoS/CAS if they expect to need to sponsor more migrants.

Sponsors of workers using the Skilled Worker route will need standard CoS in relation to migrants who can apply from inside the UK.

Sponsors who will need to sponsor migrants who will apply for a visa from overseas will need to firstly apply for a Defined CoS. Defined CoS have replaced Restricted CoS, but they will be issued by the Home Office within one working day in the vast majority of cases.

You can find further information regarding CoS here.

The government has implemented a new system to enable EU and non-EU workers and students to come to the UK. In some cases, as we have seen above, they will need a sponsor and may need to score a certain number of points.

The following new visas are available to both EU and non-EU nationals under the new Points-Based Immigration System:

• Skilled Worker: for workers who will be sponsored in a job requiring skills that equate to RQF Level 3 (broadly A-level standard). There will be a minimum salary and English language requirement. This route opened on 1 December 2020 and further detail can be found in this document.
• Skilled Workers in Health and Care: for doctors, nurses and other health professionals who work in the National Health Service and wider care sector. This route opened on 4 August 2020.
• Global Talent: this route recognises top talent in science, humanities, engineering, the arts and digital technology. This route opened in February 2020, replacing the Tier 1 (Exceptional Talent) rote. You can find more information here.
• Start-up and Innovator: for those seeking to establish innovative businesses in the UK. You can read about Start-up here and Innovator here.
• Highly Skilled Workers: for those who are highly skilled this route, which is not expected to open until 2022, will not require them to have a sponsor.
• International students: for those wishing to come to the UK to study at a universities, colleges, schools and other education providers that hold a sponsor licence. This route opened in October 2020, replacing the Tier 4 rote. You can find more information here.
• Specialist routes: for temporary workers, those in the creative fields, sportspersons and Ministers of Religion.

A range of other routes will also continue to be open – ancestry, representative of an overseas business, investor, etc.

The new Points-Based Immigration System covers the majority of routes that will be used by workers and students.

It will continue to be possible for non-EU citizens, and EU citizens from 1 January 2021, to make applications under the family routes that are already open, such as spouse, unmarried partner, fiancé and same-sex partner, adult dependant relative, etc. You can find more information about these routes here.

We are experienced in guiding people through the immigration system.

You can find further information on the current options on the pages of our website dedicated to employers, education providers and individuals.

We offer the following range of services to businesses and education providers that are designed to enable them to offer enhanced support to their employees and HR teams:

• ‘Beyond Brexit’ immigration presentations, in person or via webinar, to EU employees to explain the EU Settlement Scheme and other options available, including how to apply to naturalise as a British citizen;
• EU Settlement Scheme application filing sessions, in person or via video conferencing, where our team will use our technology to enable employees to submit their applications;
• preparation of other applications for EU staff and their family members such as applications for permanent residence documents and applications to naturalise as a British citizen;
• bespoke training for HR teams and legal advice on how best to manage Beyond Brexit immigration related matters;
• advice and assistance on Sponsor Licence, Skilled Worker and all other work-related immigration matters;
• advice on conducting compliant right to work checks;
• discounted rates to employees and further immigration law advice and assistance as required.

We have designed a flexible fixed fee structure which is tailored to the specific services the employer requires.

We offer a range of immigration and visa services to individuals who are seeking to move to the UK and you can find further information here.

We will usually be able to prepare applications, for example, under the EU Settlement Scheme, for work and study visas or to naturalise as a British citizen, on a fixed fee basis. If your situation is complex, we will analyse your situation and provide you with legal advice in a cost-effective way working to an agreed budget.

The Legal 500 has said that our team provides ‘that extra bit of listening, care and explanation that engenders the client’s trust and makes them feel comfortable’.

For the vast majority of people, making an application under the EU Settlement Scheme is unlikely to need a lawyer. Do take time to review the scheme before deciding to instruct any law firm. The latest information from the UK government about the scheme can be found here.