With Brexit Day looming, we round-up the key immigration developments for employers

1. Deal

It is expected that from Brexit Day (31 October 2019 at the time of writing, which may be delayed as the Government has requested an extension to Article 50 to 31 January 2020) to 31 December 2020, during the transition period, free movement will continue to exist. EEA nationals will have until 31 December 2020 to enter the UK and until 30 June 2021 to make an application under the EU Settlement Scheme. Close family members not living in the UK by 31 December 2020 will be able to join their EU family member in the UK at any point in the future. 

As we have mentioned in previous updates, this scheme has been introduced so that EU, EEA and Swiss citizens can apply to secure their future residence in the UK after 30 June 2021. Individuals that have been resident in the UK for five years are eligible to receive "settled status" which is similar to indefinite leave to remain in the UK. Individuals who arrive before Brexit Day and have been in the UK for less than five years are eligible for limited leave to remain in the UK for five years (known as "pre-settled status") and can apply for "settled status" when they have been continuously resident for five years.

2. No Deal

After Brexit Day, in the event of no deal, the EU Settlement Scheme will apply with slight amendments. EEA nationals in the UK by Brexit Day would have until 31 December 2020 to apply under the EU Settlement Scheme, not 30 June 2021. EU nationals with settled status would be able to be joined in the UK by 29 March 2022 by existing close family members. 

EU, EEA and Swiss citizens (and their families) moving to the UK for the first time after Brexit Day can remain in the UK until 31 December 2020 and will need to apply for European Temporary Leave to Remain by this date (Euro TLR). Euro TLR is a temporary UK immigration status that will entitle these individuals to remain in the UK from the date of their application for 36 months and to live, work and study in the same way as they could before Brexit. If EU citizens then wish to remain in the UK for longer than 36 months under Euro TLR, or if they do not make an application for Euro TLR, they will need to apply under the new immigration system being brought into force from 1 January 2021. If the application is unsuccessful, they will have to leave the UK on the expiry of their Euro TLR.  In a change revealed last month, the period of Euro TLR will count towards the qualifying residence period for settlement. 

Until 1 January 2021, the Government has said that EEA citizens (irrespective of when they arrived in the UK) will be able to show their passport or identity card to prove their right to rent and work.

3. A future points based system

The Home Secretary, Priti Patel, announced at the beginning of this month that the Government will introduce an 'Australian style' points based immigration system after Britain leaves the European Union. We explained how the Australian points based system works in our previous update here.

The Queens speech on 14 October 2019 included a reference to the Immigration and Social Security Co-ordination (EU Withdrawal) Bill (Bill), which was published on 20 December 2018, designed to end free movement within the UK after Brexit and to 'lay the foundation for a fair, modern and global immigration system'. The Government intends to use the Bill to ensure that it can deliver the proposed points-based system from 2021.

The Home Secretary has requested a review of the Australian and similar immigration systems to advise the Government on what best practice can be used to strengthen the UK labour market. The task of devising this system is entrusted to the Migration Advisory Committee (MAC). Their report is expected by January 2020. It is not currently clear how points will be awarded or what the set target will be. It remains unclear how this will differ from the points-based system that we already have in place, or the Tier 1 (General) category closed in the UK in April 2018. There is a live call for evidence from businesses, employers or anyone with relevant knowledge and expertise which closes on 5 November 2019: https://www.gov.uk/government/consultations/salary-threshold-and-points-based-system-pbs-commission-call-for-evidence.

2. Updates to the Tier 2 policy guidance

The Home Office has published an update to the Tier 2 policy guidance, to be used for all Tier 2 applications supported by a Certificate of Sponsorship assigned on or after 6 October 2019 (Updated Guidance).

In the Updated Guidance, a number of roles have been added to the Tier 2 Shortage Occupation List (SOL) at Appendix K of the Immigration Rules. The SOL now includes all jobs under the following codes: biological scientist, civil engineer, IT business analyst, architect, quality control and planning engineers along with quantity surveyors, medical practitioners, psychologists, veterinarians, amongst others. It is intended that the expansion of SOL will give businesses better access to a larger pool of skilled international workers. Other roles have accordingly been removed from the SOL.

There is now no annual limit on the number of Certificates of Sponsorship available under Tier 2 for those sponsored for a job at PhD level listed in Table 1 of Appendix J to the Immigration Rules. An applicant cannot have had more than 180 days' absence from the United Kingdom during any consecutive 12 month period within the 5 year period. However, in the Updated Guidance, where an applicant has been undertaking overseas research as part of a PhD level occupation, such absence will not be considered in this calculation.

The Home Office has also introduced a list of acceptable absences from work. This list includes statutory maternity, paternity, parental, shared parental and adoption leave, as well as sick leave, assisting with national or international humanitarian or environmental crisis overseas or taking part in strike action as part of a legally organised industrial action. If an applicant has an acceptable absence from work that lasted for one month or longer during the last 12 months of the date of application, the Home Office will count any work undertaken in the last 24 months towards the 12 month company experience requirement.

It is not exactly clear what will constitute a humanitarian or environmental crisis.  Nevertheless, an applicant must provide (i) a letter from their sponsor or linked overseas business confirming the dates of absence and the reason; or (ii) a full explanation of why this information cannot be provided, together with any independently verifiable documents showing the duration of and reasons for the absence.

Tier 2 English language testing has also been streamlined in the Updated Guidance, as doctors, dentists, nurses and midwives who have previously passed an English language assessment which is accepted by the relevant regulatory body, will not have to sit another test prior to entering the UK on a Tier 2 visa. This change is intended to ensure that hospitals and medical practices across the UK can access the staff they need faster.

In respect of the evidence required by the Home Office, this has been relaxed somewhat in that letters can be provided by the sponsor or a linked overseas business, to demonstrate that the applicant is employed by the sponsor or a linked overseas business. This relaxes the requirement for evidence to be provided by the sponsor itself.  It is not clear what will constitute a linked overseas business or how closely connected a business will have to be to the sponsor to be classified as linked.

This article was written by Abigail Lovell, Associate.