Summary
Full compliance with the existing UK immigration and visa rules would pose considerable burdens, including the requirement for a certificate of sponsorship, obtaining visas, associated fees and procedures. All these requirements are navigable and doable but would take time, costs and administration effort. On the positive side, the nature of a trader’s business is probably such that there is more likely that traders would, in fact, ultimately be granted visas for a trader’s employees.
There may, of course, be more liberal rules under an ultimate Brexit trade agreement than those set out here. The purpose of setting out the rules is to show the present third country regime. This is what the UK says it will apply to EU26 citizens, but the expectation is that something much more liberal, is likely to be negotiated with the EU.
On 9 September 2019, the UK announced significant unilateral concessions in the area of immigration, effectively tantamount to a standstill until the end of 2020 in the event of a hard Brexit on 31st January 2020.
Present EU Position
EU rules provide for free movement of EU nationals between member states for the purpose of engagement in certain economic activities and purposes. This covers workers self-employed persons and persons who provide and receive services. No visas are required. Workers need only have travel documents such as a passport or identity card
By virtue of being part of the EU, the UK was obliged to introduce into domestic law a Directive pertaining to the free movement rights for EU citizens. EU nationals and their non-EEA family members have the right to freely reside in the UK for an initial period of three months.
In addition to free movement rights, EU nationals also enjoy unrestricted access to the UK labour market and can, therefore, live in the UK for as long as they wish on the basis that they are a “qualified person” exercising Treaty Rights (i.e. jobseeker, worker, self-employed person, self-sufficient person or student)
EU nationals also have the right to be accompanied to the UK by their non-EEA Family Members, and upon completing five years in the UK exercising Treaty Rights, EU nationals and their non-EEA Family Members can apply for permanent residence
Due to the right to reside and move freely between MS, it is not necessary for EU nationals to apply for a visa to enter the UK or to regulate their stay whilst in the UK. However, EU nationals can apply for a Registration Certificate to confirm that they are exercising Treaty Rights. The Registration Certificate is usually issued for a period of 5 years after which the EU National can apply for permanent residence using
The issuing of the residence cards allows for smooth entry to the UK and assists caseworkers considering applications for Naturalisation to determine whether the requirements for residency have been met.The present favourable EU rules, in fact, apply in most cases to the European Economic Area plus Switzerland. This is the European Union, Norway, Iceland, Lichtenstein, and Switzerland. References below to the EEA for the EU should be considered accordingly.
The UK and Ireland have opted out of the so-called Schengen area which provides greater liberalisation of rules to create a single borderless movement zone. Instead, Ireland and the UK, as well as the Channel Islands and the Isle of Man, are members of the Common Travel Area which will survive Brexit, and which provides for very extensive free movement of persons.
Brexit Scenarios
The base case scenario is that existing UK third country immigration rules will apply to EU 26 nationals, i.e. non-UK non-known Irish nationals. The Conservative December 2018 White Paper on immigration proposes some liberalisation of the entire immigration system to make it more light-touch and flexible than that which now applies. In February 2020 the UK published proposals for its new immigration system. They treat all non-UK non-Irish citizens equally.
The October 2019 EU UK future declaration aspires for a close relationship with greater mobility. Therefore, there is a distinct possibility that something better than the current third country immigration system, but nowhere near as favourable as the current EU freedom of movement will apply. See also the no deal mitigation measures set out in a separate chapter announced on 9 September 2019.
Background
Brexit is likely to make a significant difference from an immigration perspective, given that the stated objective of the referendum is to end the EU free movement of workers. However, the UK / Irish common travel area is an exception to this principle, and there is a very wide political agreement between the EU, UK, and Ireland that in all circumstances including a no-deal Brexit, the UK common travel area will remain. This will give Irish citizens free movement in the United Kingdom and vice versa.
One of the purposes of Brexit is specifically to re-channel jobs done in the UK by EU nationals to UK nationals. At present, the UK runs quite a restrictive employment visa regime. Reference to Brexit refers to the date of effective departure from the EU whether a hard Brexit or under an EU UK agreement the end of the transitional period (January 2021). Until the date of actual Brexit EU/EEA nationals will remain entirely exempt from this regime and have full free movement.
Existing EU26 UK residents and frontier workers may apply for settled status, and there are mechanisms to formalise the status of all such persons. It is broadly proposed that all EU 26 workers who come to the UK before the actual operative date of Brexit will continue to have the same status and entitlement to do so. We have set out details of the UK settlement scheme in another chapter. Broadly, however, it requires a number of years residence in the UK.
Broadly speaking from an immigration perspective, employees and others who are living in a country for between five and seven years under a lawful status generally achieve settled status with long-term rights to remain, including a right to take citizenship. The process can take time and costs can reach four figures (exceed £1,000). This is a very broad principle, and there are exceptions. It does not apply to all classes of lawful presence. Critically Irish citizens in the UK and UK citizens in Ireland will have immediate settle status under the common travel area.
It might reasonably be expected that without an automatic right for EU/EEA nationals to come to work in the United Kingdom, that the Visa rules would become less restrictive overall than those now applicable to third countries. However, the December White Paper 2018 has emphasised continuing controls for all third-country nationals including EU/EEA nationals.
Immigration issues
Movement of people for business purposes between continental Europe and the UK may be subject to conditions, controls and Visa requirements. The UK has published a White Paper on Immigration in which it says that immigration controls will apply to non-Irish EU nationals as they apply to non-EU countries.
The possibility of non-UK non-Irish EU nationals who enter the UK for business purposes requiring visas is higher in a hard Brexit scenario. Because of the UK announcements on a hard Brexit on 31 January 2020, this risk is now effectively postponed to 31 December 2020. It is possible of course that further similar such concessions will be made if a hard Brexit risk emerges again in the run-up to 31 December 2020 (or 2021/2022, if extended)
In the more likely soft Brexit scenario, there is likely to be some facilitation for visa-free movement for temporary periods in the UK for conducting business or perhaps doing certain tasks/jobs. In a hard Brexit and probably still in a soft Brexit, depending on what is negotiated, the prudent approach is to assume that non-Irish non-UK EU nationals entering the UK to undertake work will be subject to the same controls and requirements for immigration visas as now apply to third-country nationals from outside the EU.
It is likely that EU 26 visitors would be granted visa-free movement into the UK for specified purposes but not necessarily for the purpose of work. Business visits are likely to be allowed without prior Visa, and this may facilitate a certain degree of a trader’s present activity.,
Visitor Visa Waiver Business Countries
Citizens from visa waiver countries which include most “western” countries (e.g. USA) may come for up to 6 months for business purposes provided they do not work as an employee. Such persons can generally undertake some business activities under a standard visitor Visa. In a worst-case scenario, it would seem reasonable to suppose EU 26 would be treated in the way.
Business – general activities
5 A visitor may:
(a) attend meetings, conferences, seminars, interviews;
(b) give a one-off, or short series of talks and speeches provided these are not organised as commercial events and will not make a profit for the organiser;
(c) negotiate and sign deals and contracts;
(d) attend trade fairs, for promotional work only, provided the visitor is not directly selling;
(e) carry out site visits and inspections;
(f) gather information for their employment overseas;
(g) be briefed on the requirements of a UK based customer, provided any work for the customer
is done outside of the UK.
We would expect that non-UK non-Irish citizens who are citizens of EU countries would be entitled to Visa waiver on the same terms as the above, at a minimum.
UK Immigration Rules Context
The following paragraphs deal with UK immigration compliance. This would be a requirement if traders had a UK company or branch so that a trader’s employees are employed by traders in the UK. It will also rise if a trader’s EU 26 employees needed to undertake activities wider than those permitted by the business visitor rules.
The immigration rules are very complex, and the particular circumstances applicable to individuals may involve several factors. The following is a broad overview of some issues and is in no way definitive of individual circumstances that might lead to complications, including at the border, in particular cases.
The UK immigration rules are made by the Home Office and change from time to time. There is online guidance available at
https://www.gov.uk/guidance/immigration-rules
Visa Rules
Technically all persons, other than those enjoying special status such as Irish citizens and EU citizens, at present require leave to remain to enter the United Kingdom. In the case of a non-visa national (visa waiver) consent is given at the point of entry, other than in highly exceptional cases.
A person who is not a Visa national (a country which does not require a prior visa) or a person who is seeking leave to enter the United Kingdom for a period not exceeding six months may be granted leave at the point of entry.
The time limit may be made known to the person by written notice given to him by an immigration officer in his passport or travel document or in certain other manners. Persons who might appear to be entitled to a visitor Visa might be refused for various grounds which do not arise in the normal course.
A Visa national or non-Visa national who is not a British national / Irish Citizen seeking leave for a period exceeding six months must produce a valid passport or identity document endorsed with United Kingdom entry clearance.
Other Visa nationals must obtain permission in advance by way of a Visa or entry certificate.
There is a list of countries such as the USA Canada Australia and many other countries whose nationals do not require a prior visa and will in almost every case obtain standard visitor permission at the border allowing them to stay for up to 6 months. This status is likely to be afforded to all or at least most EU states after Brexit.
Approach to Granting Work Visas
In common with Irish visa rules, the broad approach of UK employment Visa rules is to allow flexibility and more favourable visa terms for higher-paid workers (£30,000+) who can support themselves and for workers in other industries where there are shortages of local UK skills.
There is broadly a shortage occupation list and a labour market test. Jobs under the shortage occupation list do not need to meet the resident market labour test and are subject to salary thresholds for each job, which may be lower than the above level. Each year two shortage occupation lists are published, one for the UK as a whole and one for Scotland only.
There are six broad categories of employment visa described by reference to various tiers. Three are based on points namely those applicable
- to certain skilled workers who have been offered employment sponsored by an employer,
- high-value migrants including investors, entrepreneurs and exceptionally talented persons who may enter without a job offer and
- temporary workers with a UK sponsoring employer participating in a youth mobility scheme
Non-points-based visas are potentially applicable to certain categories including
- Commonwealth citizens with UK ancestry (at least one grandparent born in the UK),
- employees and business owners from Turkey wishing to establish business or already employed in the UK,
- certain other categories including representatives of overseas firms and businesses, domestic workers and others
Employment Visa
Tier 1 visas are very restricted, and only 1,000 or so are available annually. They apply to entrepreneurs principally those with a certain amount to invest in their own company, a very narrow range of persons of exceptional talent generally in the spheres of science humanities engineering medicine digital technology or the arts, who are recognised leaders (exceptional talent) or emerging leader (exceptional promise).
Tier 2 is the most common route for those in the financial services sector. There are two types of tier 2 Visa a general and intercorporate transfer Visa. There are two types of intercorporate Visa.
The first is for long-term staff for transfers of more than 12 months into roles that cannot be filled by a new UK recruit. The person must have worked for the company for more than 12 months unless he is paid more than £73,900 per year to work in the UK
Graduate trainee. There is a Visa for transfers into graduate trainee programs for specialist roles. The employee must be a recent graduate with at least three months’ experience with the overseas employer.
The UK government uses SOC codes to classify jobs according to titles and activities. The classification is based on the National Qualifications Framework. The first group concerns occupations with skill to PhD level working in higher education and science who do not meet the earnings threshold. The second group applies to occupations with skills to national qualifications framework level 6.
The job must pay the minimum salary for a tier 2 Visa. This turns on whether the individual is classified as a new entrant or an experienced worker. Broadly speaking the level for an experienced worker is at least £30,000 p/a/ minimum. The employer must ensure that the worker is paid above SOC codes minimum or the absolute minimum whichever is the higher.
The job must have been advertised to satisfy the requirements of the resident labour market test unless the gross annual salary package is £159,600 or the jobs is on the shortage list. There are certain media on which the job must be advertised depending on the type of job. The advert must have a number of details about the job. The selection criteria must match the essential criteria in the job advertisement.
A tier 2 Visa applicant may not apply during the tier 2 cooling off period. This applies where an individual has previously been sponsored by any employer in the UK under tier 2 and has left the UK, and the visa has lapsed and expired in the previous 12 months. Effectively the applicant must wait another 12 months to re-enter under a tier 2 Visa.
Upon successful recruitment, under tier 2, the employer must assign a certificate of sponsorship. A restricted certificate of sponsorship applies to new employees earning under £159,600. There is a cap on the number of such certificates that may be issued every month so it cannot be guaranteed that one will issue. The certificate costs £364 for non-PhD level SOC codes.
Once the overseas applicant has a certificate of sponsorship, he can apply for the Visa. He or she must also
- be paid an appropriate salary for the job
- have a knowledge of English unless they are from an English-speaking country
- have £945 at least in personal savings
- demonstrate the travel and travel history for the previous five years
- in certain circumstances have a tuberculosis test results
- have a criminal record certificate for countries in which the person has lived more than 12 months in the last ten years if working with vulnerable people
The Visa can be applied for up to 2 months before the individual commences work.
For a three-year visa, the fees are £597 for each worker and each dependent. Where the Visa is for more than three years, the Visa fee is £1174 for each worker and dependent. There is also a £200 per person health surcharge.
A tier 2 Visa can last five years. In 2017, a levy, (the so-called immigration skills charge) was introduced on employers who sponsor tier 2 skilled migrant workers. The amount depends on the size of the business. For a five-year Visa for a small business, it is £1,820, rising to £5,000 for medium and large sponsors.
If an individual works in the UK for five years, he or she may apply for indefinite leave to remain. He or she may qualify if
- he/ she has had a tier 2 general visa,
- has been living and working in the UK for five years and spent no more than 180 days outside of the UK, the employer/sponsor still needs the individual for the job,
- the job pays £35,000 or more (unless exempt from the minimum earnings threshold)
- the individual gets the relevant salary listed in the codes of practice
A non-EU national working legally in the UK gets the benefit of UK employment law. It is broadly similar to Irish law. A lot of the key working hours, holidays, anti-discrimination and other rules are EU based at present. They are likely to remain the same in the UK in the immediate aftermath of Brexit, at least for some time.
Sponsor Licence
An employer needs a sponsor licence to employ someone from outside the European Economic Area (EEA) and Switzerland to work for the applicant in the UK. Under the points-based system, an employer or education provider who wants to act as a sponsor needs a licence. When licensed, they are added to the register of sponsors. The register of sponsors lists the name, location and sponsor rating of every registered organisation.
Licensing depends on
- whether the business is eligible.
- the type of licence the applicant wants to apply for – this will depend on what type of worker the applicant wants to sponsor.
The applicant is given a licence rating if his / her application is successful. He will be able to issue certificates of sponsorship if the applicant has jobs that are suitable for sponsorship. The licence will be valid for four years. The applicant may lose his / her license if the applicant doesn’t meet his / her responsibilities as a sponsor.
Licences can only be applied for if:
- the potential sponsor is a legitimate organisation working within the law in the UK;
- there are no reasons to believe that the potential sponsor is a threat to immigration control; and
- the organisation will meet its sponsorship duties.
These criteria are to ensure that those working in the UK do so legally.
If the potential sponsor is awarded a sponsor licence, they will be given a sponsor rating – this will be an ‘A rating’ or a ‘B rating’ and will be listed on the register. Instead of an A or B rating, Tier 4 (General) sponsors can apply for a Highly Trusted sponsor licence.
A tier 2 general work Visa requires the employer to be a licensed sponsor. This, in effect, requires a UK company establishment or other significant presence. Arguably such a requirement could be argued to be discriminatory against other EU businesses before Brexit, but post-Brexit this would not be so. We have set out separately the obligations on sponsors.
Points and Visas
Points are awarded under the points-based system for the following:
- Qualifications (this ranges from GCSE A-Level equivalents to PhD’s);
- Future Expected Earnings (the salary that is received by the applicant);
- Sponsorship (the type of sponsorship);
- English language skills;
- Available maintenance (funds used to support).
Tier 2 (General) visa
Conditions for a visa [at present]:
- offered a skilled job in the UK
- [from outside the European Economic Area (EEA) and Switzerland
- employed by a licensed sponsor to apply to live in the UK.
- His / her sponsor checks that the applicant can do the job they’re hiring the applicant for and if it qualifies the applicant for a visa.
The applicant can come to the UK with a Tier 2 (General) visa for a maximum of 5 years and 14 days, or the time given on his / her certificate of sponsorship plus one month, whichever is shorter. The applicant can start his / her stay up to 14 days before the start date on his / her certificate of sponsorship.
The applicant can:
- work for his / her sponsor in the job described in his / her certificate of sponsorship
- do a second job in certain circumstances
- do voluntary work
- study as long as it doesn’t interfere with the job sponsored for
- travel abroad and return to the UK
- bring family members.
The applicant can’t:
- own more than 10% of his / her sponsor’s shares (unless the applicant earns more than £159,600 a year)
- get public funds
- apply for a second job until started working for his / her sponsor
Enforcement
There are significant penalties for employers or others who employ or retain employees without the requisite immigration status and employment Visa. In particular, the Immigration Acts 2014 and 2016 placed increased obligations on employers to verify compliance. Employers are positively obliged to ascertain the position.
The guidance indicates that the offence of illegal working is not limited to employment and covers all kinds of work, including apprenticeships and self-employment.
The guidance last updated in June 2018 sets out obligations on employers against illegal working. A significant number of employers are fined for breach of the legislation. The legislation applies to employees or workers. Even if a person is technically not an employee, they may still be a worker. There are exceptions for agency workers and genuine independent contractors who do not fall within the remit of the worker.
Immigration Offences
There is an offence of illegal working. An employee who is subject to immigration control commits the offence if he works at a time when he is disqualified by reason of his immigration status and at the time knows or has reasonable cause to believe that he is disqualified from working by reason of his immigration status. This offence may be prosecuted in the Magistrates Court, subject to a fine or 51 weeks’ imprisonment or both.
A further offence can be committed by the employer including a company if he or it employs another who is disqualified from employment by reason of the employee’s immigration status and has reasonable cause to believe that the employee is disqualified from employment by reason of the employee’s immigration status. This is an offence potentially also subject to prosecution in the Magistrates Court or the Crown Court with a possible sanction of imprisonment up to 5 years, in the latter case.
Immigration officers have extensive powers to enter premises, search, retain evidence and close businesses in breach of immigration rules.
A penalty of up to £20,000 may be applied for each illegal worker if the lawyer employs an adult subject to immigration control who does not comply with the conditions of immigration control.