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Global HR Lawyers

Brexit: Implications for NI Employers of EU Nationals

22 January 2021

The Brexit implementation period ended at 11pm on 31 December 2020, and with it, free movement of persons in the EU also came to an end. This is despite the fact that the EU-UK Trade & Cooperation Agreement (TCA) was agreed between the UK and the EU on 24 December. Therefore, it is important to understand the new immigration rules that apply to EEA and Swiss nationals wishing to visit or work in Northern Ireland and vice versa.

Northern Ireland & the Common Travel Area

In considering the position, it is important to bear in mind that the UK, including Northern Ireland, enjoy a unique relationship with Ireland as a result of the Common Travel Area (CTA) arrangements that have existed between the United Kingdom and Ireland since 1922. The CTA is unaffected by Brexit and the TCA, which expressly states that it is without prejudice to any arrangement made between the UK and Ireland concerning the CTA.

Moreover, Article 3 of the Protocol to the TCA states that the UK and Ireland “may continue to make arrangements between themselves relating to the movement of persons between their territories” and that the UK must ensure that the rights and privileges associated with the CTA may continue to apply without affecting Ireland’s obligations under EU law.

Therefore, from 1 January 2021 UK and Irish citizens may continue to travel and work freely within the CTA (UK, Ireland, the Channel Islands and Isle of Man), without the need for immigration permission or the approvals outlined below, which will apply to other EU Member States. However, this does not provide rights with respect to travel within the rest of the EU, only the CTA itself.

Other EU/ Swiss Citizens

For all other employees, a new points-based system applies to businesses wishing to employ EU (and non-EU citizens) from 1 January 2021. This provides for different immigration rules depending on whether the EU national first arrived in the UK before or after 11pm on 31 December 2020. We have outlined below the key issues employers should be aware of.

EU/Swiss nationals residing in the UK before 11pm on 31/12/20

In most cases these individuals will need to apply for settled or pre-settled status under the EU Settlement Scheme (Scheme) to continue to live and work in the UK. The deadline for applications under the Scheme is 30 June 2021. This includes all workers residing in the UK at this date.

Settled status

To be eligible for settled status, a person requires a period of 5 years’ “continuous residence” in the UK. “Continuous residence” means that the individual has been present in the UK for at least six months in each 12 month period. Absence from the UK for more than six months in any 12 month period, will usually break continuity, except in limited circumstances.

Pre-settled status is granted for 5 years and an application for settled status can be made once 5 years’ residence is acquired, or before the pre-settled status expires. For those already residing in the UK, an initial application must be made by 30 June 2021.

Pre-settled status

If an individual has been in the UK for less than 5 years, they should be granted pre-settled status. This is granted for 5 years and, at present, it seems it cannot be extended. If an individual is absent from the UK for a continuous period of more than 2 years, their pre-settled status will lapse.

EU/Swiss nationals who arrive in the UK after 11pm on 31/12/20

EEA/Swiss nationals relocating to the UK after 31 December 2020 must have permission to live and work in the UK. They will not be eligible to apply for settled or pre settled status under the Scheme and will need to apply under the new Immigration Rules. The categories under the new Rules are: –

  • Skilled Worker
  • Intra-Company Transfer
  • T5 Temporary Work: Youth Mobility, Government Authorised Exchange, Sporting & Creative
  • Sole Representative
  • Global Talent; Start Up & Innovator.

The employer must hold a licence under the relevant category to sponsor a worker. The 2 main types of work visa categories are likely to be ‘Skilled Worker’ visa and ‘Intra-Company’ transfer visa.

Skilled Worker visa

The Skilled Worker visa essentially replaces the previous Tier 2 General visa. This route is available to skilled migrants with a job offer who are sponsored by an employer. Unlike the Tier 2 General visa, applications for a Skilled Worker visa do not require a prior compliant advertisement. The Government has temporarily suspended any cap on the number of such visas that can be granted.

The key requirements of the skilled Worker visa are:

  • The level of skill required to perform the role has been reduced from RQF 6 (graduate level) to RQF Level 3 or above (generally A level or equivalent).
  • The salary must be £25,600 minimum or the ‘going rate’ for the particular job (whichever is higher). There are exceptions for certain jobs in the NHS or education sector, and in STEM. In these cases, the individual must earn at least £20,480.
  • The applicant must meet an English language requirement and a maintenance test.

A Skilled Worker visa lasts up to 5 years. If the individual continues to meet the eligibility requirements, they can apply to extend their visa as many times as they wish. The individual is eligible to apply for Indefinite leave to Remain after 5 continuous years.

Intra-Company Transfer visa

This route is available to skilled migrants who are moving from a role in an international branch/subsidiary of a company abroad to one within the same group in the UK. It is similar to the previous Tier 2 Intra Company Transfer visa.

It is subdivided into the ‘Intra-Company Transfer’ route and ‘Intra-Company Graduate Trainee’ route. As with the Skilled Worker visa, this route requires sponsorship by an employer and has a number of key requirements, including:

  • The individual must have worked for a linked entity outside the UK for a minimum of 12 months (3 for Trainees). This does not apply to ‘high earners’ with a gross salary of £73,900+
  • The level of skill required for the role must be RQF Level 6 (degree-level) or above.
  • The job must meet the ‘going rate’ for the particular job or a minimum of £41,500 (£23,000 for Intra-Company Graduate Trainee), whichever is higher.
  • The applicant must also meet a maintenance test. There is no English language requirement.

Individuals who are eligible for the Intra-Company Transfer visa will have the right to remain in the UK for up to 5 years in any 6-year period (or 9 years in any 10-year period if they are a high earner).

Intra-Company Graduate Trainees will have the right to remain in the UK for up to 12 months. This doesn’t give an individual a right to apply for Indefinite Leave to Remain.

Frontier workers Visa

A new Frontier Worker permit has been introduced for EU citizens who are either working or self-employed in the UK by 31 December 2020 but reside in the EEA. These individuals can apply for frontier status by 30 June 2021. To do so, they must:

  • be working (either employed or self-employed) before 31 December 2020
  • carry out ‘genuine and effective’ work in the UK
  • be in the UK for less than 180 days in the last 12-month period or return to their country of residence at least once in the last 6-month period or twice in the last 12-month period.

Individuals who have been working in the UK for 1 year or more but are currently unable to work (for example due to illness, pregnancy /maternity leave etc) can retain frontier worker status for 6 months (longer in certain circumstances). Those, who previously worked in the UK for less than 1 year, retain their status for 6 months.

Between 1 January – 30 June 2021, frontier workers can travel to the UK using their current passport or national ID card (but may need to provide evidence of frontier working upon request). From 10 December 2020 frontier workers need to submit an online application for digital confirmation of their status, which they will need for any travel to the UK after 1 July 2021.

Frontier workers get status for 5 years (2 years if currently are not working but have retained their status). It can be renewed indefinitely but doesn’t lead to permanent residence in the UK.

Business travel

From 1 January 2021, a visa is not required for business visits. However, the Government plans to introduce an electronic travel authorisation (ETA), which will require the completion of an online form and payment of a small fee prior to travel. EEA/Swiss nationals will be required to apply for an ETA once the system is in place, unless an agreement is reached with specific countries to the contrary.

The business visitor visa does not permit ‘work’ only for ‘permissible activities’ such as attending business meetings, conferences, seminars, interviews, giving talks (which are not commercially organised), negotiate and sign deals/contracts; carry out site visits/inspections etc.

A formal invitation letter is required if the person intends to undertake permitted paid engagements in certain circumstances e.g. as an academic, lecturer, lawyer, entertainer, musician or sportsperson.

Comment

Between 1 January 2021 to 30 June 2021, there will be two categories of European nationals working in the Northern Ireland. Those who entered the UK before 31 December 2020, who have the right to live and work here prior to 30 June 2021. There will also be those who entered the UK for the first time after 31 December 2020 who must have immigration permission to live and work here. It is important that an employer knows which category an employee falls into because if they know or have reasonable cause to believe the individual does not have the right to work, they can be subject to criminal prosecution and unlimited fines. Furthermore, failure to properly document an employee’s right to work may incur a fine of up to £20,000, as well as potential revocation of the Sponsors’ Licence. There is a defence if the employer can prove that proper right to work checks were completed prior to commencement of employment. Accordingly, it is all the more important that employers conduct right to work checks on employees commencing employment after 1 January 2021. We also recommend that offer letters and employment contracts make it clear that employment is conditional on having the right to work in Northern Ireland and providing satisfactory evidence of same.

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