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Checking The Right To Work Post-Brexit

Checking The Right To Work Post-Brexit

We all know that the UK has left the EU. That is last year’s news. But do we all know how that has affected the Right To Work (RTW) in the UK for EU nationals (excluding those from Ireland)?

As recruiters must do a Right To Work check, it is a fundamental point to get on top of.

So, what’s changed?

With effect from 1st January 2021 a new points-based immigration system came into place in the UK, with a transition period ending on 30th June 2021 during which EU nationals who want to work in the UK should be applying for settled or pre-settled status. There is no need to repeat your RTW check for EU nationals during the transition period – you just need to make sure you have done it; and you can still use online checking services without seeing the original documents.

After the end of the transition period, with effect from 1st July 2021, a worker cannot rely on their EU citizenship for an automatic RTW in the UK. And recruiters will have to obtain new RTW information for all new candidates after that date. The documents that used to suffice e.g.: a European passport or ID card will not be enough. In order to have the RTW in the UK after 1st July 2021 the candidate must have applied for Settled Status or Pre-Settled Status before the 30th June deadline. If they have not, they do not have the right to work in the UK.

Settled Status and Pre-Settled Status

In case you are asked, Settled Status requires 5 years’ residence in the UK before 31st December 2021. If the applicant has not been in the UK that long they can apply for Pre-Settled Status until they have lived here for 5 years. It is free to apply under the EU Settlement Scheme, but failure to do so will make them an illegal immigrant.

A points based immigration system

After 1st July 2021 anyone coming to the UK to work will need to have applied for, and been granted, a visa under the new (points based) immigration system. Current understanding is that they will need a total of 70 points. Although there are various routes to being granted a visa, the one which will be of primary importance to recruiters is the “Skilled Worker” route, for which the applicant will have to demonstrate:

  • They have a job offer from a Home Office licensed sponsor
  • The job offer is at a required skill level (A Level and equivalent)
  • They speak English to required standard
  • They meet the minimum salary threshold of £25,600 or specific salary requirement for their occupation

There is some trading that can be done with points e.g.: a lower salary for a higher level of skill, or a skill in high demand, but the 4 criteria listed above should be your starting point. And do bear in mind that it can take up to 8 weeks for the Home Office to grant a visa.

If you are discussing RTW with your clients you will be pleased to hear that existing sponsors will automatically be granted a new skilled worker licence or ICT licence, including an expiry date consistent with their current licence, and receive an appropriate allocation of certificates of sponsorship. A sponsorship license is valid for 4 years before it needs to be renewed.

Please also bear in mind the Equality Act too. It would be discriminatory to allow hiring decisions to be made purely based on whether the candidate needs a visa or not.

Despite your political views on the merits of a post-Brexit points-based immigration system, I am sure that like everything else we will get used it. But if you need any guidance in the meantime, please do not hesitate to contact one of the team at Cognitive Law on 0333 400 4499.

Find out more about Cognitive Law here.