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The Brexit clock is counting down and time is running out

What businesses need to know about post-Brexit immigration

With only weeks now until the Brexit transition period ends on 31 December 2020, businesses are running out of time to prepare for the immigration changes ahead.

Virtually all UK employers are likely to be affected, and life sciences businesses particularly so, given that international mobility and collaboration are key features of the sector.

Consider future business trips

Pharma businesses will be used to their European colleagues coming across to the UK and British nationals travelling to Europe – for example, to collaborate on projects for short periods. From January 2021, when EEA nationals are entering the UK as business visitors, they will only be able to undertake limited activities, such as attending meetings or conferences.

Additional activities are permitted within science and research, such as sharing knowledge/advising on an international project being led from the UK, provided the visitor is not carrying out research in the UK. If individuals will be undertaking an internship or working in the UK, they will need to obtain prior immigration permission.

Conversely, businesses should consider the visitor rules in each respective European country for UK national employees taking business trips from January 2021.

Frontier workers

Pharma businesses may also have individuals who are resident in a European country but who frequently travel to the UK to work. It may be possible for these individuals to apply for a frontier worker permit to enable them to continue to work in this way.

These significant changes are just around the corner now. The impact on the life sciences sector will be keenly felt and employers should take action to ensure they are ready for what is ahead. Below you will find checklists and more detailed information on the upcoming changes.

What does the end of free movement for European nationals mean for UK employers?

Currently, UK employers can recruit a European national in exactly the same way as a UK national. European nationals can enter the UK on the basis of their current EEA passport or ID card – it involves no immigration application or visa fees.

The key change is that this free movement for EEA nationals (and their family members) will end at 11pm on 31 December 2020. There will be different immigration rules applicable to European nationals depending on whether that individual first arrived in the UK before or after 11pm on 31 December 2020. It will therefore be important for employers to know when the person first entered the UK.

European nationals and family members who enter the UK before 11pm on 31 December 2020

In most cases, these individuals will need to apply for pre-settled or settled status under the EU Settlement Scheme (the ‘Scheme’) in order to continue to live and work in the UK long term. This involves an online application and there are no visa fees. The deadline for applications is 30 June 2021.

Only those with Irish citizenship or with indefinite leave to remain are exempt from applying under the Scheme. It is important to
note that individuals who have already obtained a Permanent Residence document still need to apply for settled status.

If individuals fail to apply by the deadline, it is likely that the individual will no longer have the right to live and work in the UK after 30 June 2021.

It is also likely to be a criminal offence for a UK employer to continue employing them in the UK. To avoid key members of staff being left without the right to work in the UK, it is important that employers take a proactive approach now.

Settled status

Those who have been ‘continuously resident’ in the UK for at least five years should be eligible for settled status under the Scheme. ‘Continuously resident’ means that the individual has been present in the UK for at least six months in every 12-month period.

If the person is absent from the UK for longer than six months in any 12-month period, this will usually break continuity, except in limited circumstances. If continuity of residence is broken, it is unlikely that the individual will be eligible for settled status.

Pre-settled status

If the individual has been in the UK for less than five years, they should be granted pre-settled status. Pre-settled status is granted for five years and, importantly, it seems that this cannot be extended. It is therefore vital for individuals to safeguard their continuous residence so that they are able to apply for settled status after five years in the UK.

As above, in order to be able to apply for settled status they must not spend more than six months in any 12-month period outside of the UK. In addition, if an individual is absent from the UK for a continuous period of more than two years, their pre-settled status will lapse altogether.

If an individual obtains pre-settled status, employers should therefore consider the implications of the length of any international secondments or regular business travel or overseas working on that person’s future eligibility to apply for settled status.

Top tips for employers – EU Settlement Scheme

* If not already done, carry out an audit to identify who is affected by Brexit and needs to make an application under the EU Scheme

* Encourage your European workforce to apply under the Scheme before 30 June 2021 – the gov.uk website has an employer toolkit to assist with this

* Make a note to check in May/June 2021 that everyone who needs to has applied or will be applying under the Scheme by the deadline of 30 June 2021

* Make a note of the expiry dates of employees’ pre- settled status and follow up before the expiry date to ensure that they have now obtained settled status

* Take care when offering international secondments, allowing remote working overseas or regular business travel for employees
holding pre-settled status. If they spend too long outside the UK, they may find themselves having to leave the UK after five years.

European nationals and family members arriving in the UK after 11pm on 31 December 2020

Generally, these individuals will not be able to apply under the Scheme (although in certain circumstances family members may be able to apply). In order to live and work in the UK, they will need to apply under the new Immigration Rules in force from January 2021. In most cases, employers will need to sponsor European nationals under the new Skilled Worker route and employers will need a sponsor licence in order to do so.

In essence, those holding a European passport will no longer have any advantage when applying for UK immigration. EEA nationals and their family members arriving for the first time to live and work in the UK will, from 1 January 2021, be treated in exactly the same way as non-EEA nationals under the UK’s immigration rules.

The majority of roles in the life sciences sector undertaken by non-UK nationals are highly or medium skilled. This means that pharma businesses will have the option of sponsoring individuals for these roles in the UK, provided the minimum salary threshold is met and the person meets the English language requirements.

Employers will, however, need to contend with the significant costs of sponsorship – Home Office’s fees alone are usually around £10,000 to sponsor one individual for five years. If the worker is bringing three dependants with them, these fees swiftly rise to over £20,000.

Businesses will also need to engage with the longer lead-in times for individuals to apply and enter the UK. While at present European workers travel to the UK as soon as they are needed, the sponsorship system will entail several weeks or even months for the submission and approval of visa applications. Even longer will be required if the company does not already have a sponsor licence.

Top tips for employers – preparing for the new immigration system

* If the business does not yet hold a sponsor licence, we strongly recommend it considers applying for one now. Before doing so, it is important to take advice on the onerous sponsor obligations and HR processes that must be in place.

* Employers that already have a sponsor licence should ensure they are compliant with their sponsor obligations so that they are ready for any Home Office audit. This is particularly relevant this year when many changes may have taken place, such as updated working hours or salaries for sponsored workers or changes to the business itself, all of which may need reporting to the Home Office. Sponsors’ licences can be (and often are) revoked for non-compliance. You may wish to consider an immigration audit.

* Ensure you are up-to-date with the latest immigration rules and sponsorship guidance as significant changes come into effect on
1 December 2020.

* Review your recruitment strategies and factor in additional costs for sponsorship into recruitment budgets.

* Ensure you are carrying out right to work checks correctly in relation to all employees – failure to do so could lead to civil penalties and sponsor compliance action being taken. Right to work checks are likely to be an issue in relation to European nationals too next year. We recommend from 1 January 2021 you ask EEA nationals when they first arrived in the UK to see if this was before or after 31 December 2020. If they arrived before 1 January 2021, you should encourage them to provide details of their pre- settled or settled status if they have already applied or remind them to apply by 30 June 2021. If they arrived after 31 December 2020, you will need to see evidence of their right to work in the UK and it is likely you will need to sponsor them.

* The offer letter and employment contract for all employees should clearly state that employment is conditional on the person having the right to work and the employee providing satisfactory evidence of that right to work.

Jackie Penlington is Managing Associate, Stevens & Bolton LLP

4th January 2021

Jackie Penlington is Managing Associate, Stevens & Bolton LLP

4th January 2021

From: Marketing

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