By Adam Hoefel, solicitor at Gherson Solicitors [1]

UK employers may be forgiven for forgetting about the consequences of Brexit. The near-existential challenges posed by the pandemic are understandably the priority and focus of businesses at present. We must hope, however, that things will return to normal in the not-too-distant future and employers will again turn their attention towards recruiting the skilled workers they will need to grow in a post-pandemic economy.

Those employers who recruit skilled workers from Europe may be surprised to find that the process is not the frictionless exercise that it had been while the UK was a member of the European Union. While being able to widen the geographical talent pool is great news for organisations seeking skills for their future workplace, the shift to a remote or hybrid office since the global pandemic has meant many new employees across multiple sectors are now being onboarded virtually.

The end of freedom of movement was one of Brexit's principal objectives and that promise has now been delivered. As of the end of the transition period on 31 December 2020, EEA nationals are now treated the same, for immigration purposes, as any other non-UK or Irish national. For those EEA nationals who have no prior connection with the UK, they will need to obtain permission to work and reside in the UK as would, for example, an American or Indian citizen.

Where does this leave UK employers who have historically depended on a skilled (or semi-skilled) European workforce?

The government recognises that the end of freedom of movement will put constraints on UK employers and in response have introduced certain changes to the immigration rules to mitigate the effects this will have on the ability to recruit skilled workers from overseas.

The first element of this is the introduction of a number of transitional immigration categories, which allow EEA nationals who have been working or residing in the UK prior to the end of the transition period, to apply for status which will allow them to retain these rights on an ongoing basis. These categories include the EU Settlement Scheme and the Frontier Worker Permit route. EEA nationals registering under the EU Settlement Scheme will need to do so before the scheme closes on 31 June 2021.

The second element is the significant reforms to the existing work permit system - previously ‘Tier 2', now rebranded ‘Skilled Worker' - which expand the types of jobs that are eligible for sponsorship and removes many of the hurdles which previously restricted the ability of employers to sponsor migrant workers.

Sponsored workers under the skilled worker category

Where a UK employer wishes to employ an EEA national who doesn't qualify under the EU Settlement Scheme or Frontier Worker Permit categories, they will need to look at sponsoring the worker under the new Skilled Worker category.

Those employers who already sponsor non-EEA workers will be familiar with the system as the underlying principles remain largely unchanged. An employer must first obtain a sponsor licence from the Home Office, who must be satisfied that the prospective sponsor has a genuine need for the licence, poses no threat to immigration control (e.g. no history of non-compliance) and that they have sufficiently robust HR systems in place to discharge their sponsor duties.

Once a licence is granted, the sponsor may then issue a ‘certificate of sponsorship' to support the skilled worker's visa application. To be granted the visa, the role for which the migrant will be sponsored must meet certain minimum skill and salary requirements, and the migrant will need to demonstrate competency in the English language to the required level.

Once granted the Skilled Worker visa, the migrant will be able to work for the sponsor in the UK in the specified role. After five years' continuous residence in the UK as a Skilled Worker, the sponsored migrant may be able to apply for Indefinite Leave to Remain (i.e. settlement) after which they no longer require sponsorship and are able to work in the UK without restriction.

So far, so familiar. So what has changed?

Under the new Skilled Worker category, there are no quotas or limits on the number of visas that can be issued, which was a feature of the previous Tier 2 category.

The types of roles which qualify for sponsorship have also been expanded, now encompassing sub-degree level roles. All jobs deemed skilled to RQF Level 3 (A Level) or above (with several exceptions) now qualify for sponsorship, whereas previously Tier 2 sponsorship was restricted to jobs skilled at RQF Level 6 jobs or above.

The minimum salary threshold has also been reduced from £30,000 to £25,600, provided that the migrant is still paid at or above the defined market rate for their particular role. The much vaunted ‘points-based system' element of the route also provides circumstances where the minimum salary can fall below the above thresholds - for example, when the job is a deemed shortage occupation or where the worker holds a PhD in a STEM-related subject relevant to the job.

The Home Office has also removed restrictions on a sponsored migrant's shareholding in the sponsor employer, which opens the route to skilled migrants who wish to invest in and take an active role in the management of the business.

Finally, and perhaps most significantly, sponsors are no longer required to complete a Resident Labour Market Test (‘RLMT') before sponsoring a migrant worker. The RLMT played a crucial inhibiting role in the previous Tier 2 category; sponsors were required, in most cases, to undertake a competitive recruitment exercise and only if no suitable resident worker could be identified would they be able to proceed with sponsoring the migrant. Under the new Skilled Worker category, there is no requirement to favour resident workers above non-resident candidates. Instead, sponsors must now only demonstrate that the role itself is a ‘genuine vacancy'.

Sponsors are advised to retain sufficient evidence to demonstrate the genuineness of the vacancy (for example, evidence that there is a genuine need for the role, how the migrant was identified and evidence that the migrant is suitably competent for the role), but it is clear that there is no longer a need to carry out a prescribed RLMT as before. The removal of this requirement alone makes it significantly easier to sponsor workers than under the previous system.

The above are all welcome changes which should help reduce at least some of the pain employers will experience when recruiting in post-Brexit Britain.