Vikki Wiberg considers changes to foreign worker citizenship rules and how they affect construction

Vikki Wiberg BW 2018

So many announcements have been made recently about the future of the UK’s immigration system that it’s hard to keep track of change. The home secretary, Sajid Javid, has announced stricter immigration and citizenship rules, tougher English language requirements and the introduction of a single skills-based immigration system. It’s important to consider how they will impact your business and what practical steps you can take to manage these changes. 

From 2021, under current proposals, there will be no differentiation between those coming to the UK from EEA countries or non-EEA countries. With a minimum salary requirement of £30,000 for tier-two general working visas, businesses will struggle to fill low skilled roles. This will greatly affect the construction industry. 

Recent data shows that 28% of London construction workers are EEA nationals. EEA net migration is at its lowest level since 2012, with a sharp decrease in those coming to look for work. This raises questions about limited access to workers after Brexit and how targets on housebuilding and infrastructure projects will be met. Such concerns are exacerbated as more than half of UK nationals in construction are aged over 45.

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What are the main changes?

End to free movement

The right to free movement ends from 1 January 2021. Until then, EEA nationals retain the right to live and work, study or look for work in the UK. 

Also read: May repeats goal of ending freedom of movement 

Requirement for settled status

All EEA nationals resident in the UK before 31 December 2020 will be required to apply for settled or pre-settled status. Settled status is for those with five or more years UK residence. Pre-settled status is for those with fewer years. The “simple” online system, which is being trialled in Liverpool, will go live in March 2019. All EEA nationals, regardless of how long they have lived in the UK, will need to demonstrate this status in order to rent a house, open a bank account and work in the UK from 2021.

Level playing field through a single, skills based immigration system 

Businesses will be subject to the current points based system, or something similar, for EEA national hires from January 2021. The points-based system requires sponsored hires to be qualified to degree level or equivalent, with preset minimum salaries. Before applying for a visa, companies must hold a sponsor licence and advertise roles to show they cannot be filled from the UK resident workforce, increasing red tape and bureaucracy.  

No separate system for low-skilled work

Low-skilled work is not provided for under the points-based system. There are limited exemptions for shortage occupation roles (such as for certain roles within the NHS). The Home Office is exploring an exemption for seasonal agricultural workers, but is not planning exceptions for other lower-skilled roles, for example in the construction industry. Consider lobbying your trade body on this important issue before the rules are finalised. 

Changes to the points based system

The Home Office continues to make changes affecting non-EEA nationals. Their continuing transition to a simpler online system expedites application processing. They plan to increase the immigration health surcharge (permitting access to the NHS) from £200 to £400 a year. This will increase costs by £1,000 per person for a five-year visa. The Migration Advisory Committee, on which the Home Office relies for guidance, has recommended more changes to the current system which would benefit businesses. For example, removal of the monthly tier-two visa cap (which has been reached every month since December 2017), reducing the minimum skills level to NQF level three (GCSE level) and scrapping mandatory advertising prior to visa applications. 

Concrete steps to take now

  • Audit your workforce. Assess how reliant your business is on EEA nationals. Ascertain how many of those workers already hold permanent residency or British citizenship. 
  • Plan for your business’s future and reassure staff and their family members. Encourage them to review their options now, whether by way of workshops or Q&A documents to explain the rules and how they apply. 
  • If considering transferring staff into the UK, resource planning prior to 31 December 2020 is critical. If you plan to transfer senior EEA staff into the UK or UK staff into Europe, consider doing this early to benefit from the simplicity of right to free movement.  
  • There is no obligation on employers to cover application costs. Analyse how much it would cost to support your EEA staff to make applications. Factor this into forecasting. Consider meeting costs if your business is heavily reliant on lower-paid EEA national staff who may struggle with application fees. The alternative may be paying increasing recruitment costs or overtime due to staff shortfalls.

Keeping track of changes

With changes coming thick and fast, it is difficult to keep track of how they impact on your business. Signing up to industry bulletins and Home Office announcements can assist. 

Vikki Wiberg is senior counsel in the employment, pensions and mobility group at Taylor Wessing

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