The decision of the United Kingdom (UK) to permanently leave the European Union (EU) from 2021 onwards has made it significantly more complicated for European citizens to work in the UK and for UK employers themselves to hire them. As the UK is no longer part of the EU, and the principle of European law on the free movement of workers, enshrined in Article 45 of the Treaty on the Functioning of the European Union (TFEU) has ceased to apply, it is no longer possible for European citizens to work in the UK without first obtaining a specific entry visa.
As of today, the legislative discipline applicable to EU citizens who wish to work in the UK is the same as that applicable to any other non-EU foreign worker.
Before discussing the rules specifically concerning the employment of foreign workers in the UK, it is worth noting that European citizens can still travel to the UK as standard visitors, without a visa, for a maximum of six months to carry out the following activities:
1) for tourism, e.g. as part of a holiday or vacation;
2) to see family or friends;
3) to volunteer for up to 30 days with a registered charity;
4) to transit the UK to another country (‘in transit’);
5) for certain business activities, e.g. to attend a meeting or a job interview;
6) to participate in a school exchange programme;
7) to attend a recreational course lasting up to 30 days, e.g. a dance course;
8) to study, do an internship or take an examination;
9) as an academic, senior doctor or dentist;
10) for medical reasons.
However, if a UK organisation (meaning a legal entity) wishes to permanently employ a foreigner who does not have the right to work in the UK, it must be explicitly authorised by the UK Home Office. Employers possessing an SPL acquire the status of ‘sponsor’. It should be noted that only legal persons, and not natural persons, can obtain an SPL.
A legal entity wishing to become sponsor must meet specific eligibility and suitability requirements.
Eligibility Requirement:
The applying legal entity must be ‘genuine’ and ‘operating and/or trading’ within the UK. In other words, the English authority wants to make sure that the employer is not an ad hoc company created to circumvent English immigration rules, but instead is already operating in the UK. It is not necessary for the legal entity to occupy physical premises, although in this case it would be easier to prove the genuineness of the company to the competent English authority.
Suitability Requirements:
– The legal entity must have an internal organisation that enables it to fulfil the sponsor’s obligations under English law. Specifically, these are obligations of: reporting; keeping records and data relating to the foreign worker; and compliance with English immigration regulations.
– The legal entity must declare where the foreigner will work. The English authority in charge during the application process for the SPL will carry out inspections to verify the existence and suitability of such workplace. In the event that the legal entity declares that the worker will carry out his/her duties at the offices of a third party, the same legal entity must be able to prove the existence of a written agreement in this regard.
– The legal entity must prove that it is in a condition to employ a worker in the offered position. To be able to determine the treatment that the employer should provide to the foreign worker, it is necessary to identify the latter within one of the categories for which sponsorship is granted (i.e.: “skilled worker”; “senior or specialist worker”; etc.).
– The legal entity must never have infringed English immigration law.
Once the legal entity has demonstrated that it meets the above requirements, it can obtain an SPL and officially become a sponsor. Sponsors have access to the online ‘Sponsor Management System’ (SMS). The SMS is used to award a Certificate of Sponsorship (CoS). The CoS is an electronic document and contains personal information about the migrant worker, as well as details about the role he or she will hold and the salary he or she will receive. Each CoS has its own number and allows the migrant worker to apply for permission to enter (a visa) or stay (a residence permit) in the UK to carry out his/her work.
A CoS can only be used by the specific person to whom it has been allocated. However, the allocation of a CoS to a migrant does not guarantee that they can enter or remain in the UK. The Home Office must ensure that there is a genuine vacancy for the role, that he/she is sufficiently qualified and that the migrant is paid appropriately (according to English minimum wage regulations). The migrant must also meet specific eligibility criteria. The criteria vary depending on the category of sponsorship but may include minimum English language and financial requirements.
Finally, it should be noted that it is not always necessary for an English employer to obtain an SPL to hire a foreign worker. Indeed, if the UK employer wishes to hire a foreign worker for services performed remotely, without having the same worker residing in the UK, it will not have to obtain an SPL and the worker, by continuing to reside in his or her home country, will not need an entry visa.
DISCLAIMER: This newsletter merely provides general information and does not constitute legal advice of any kind from Macchi di Cellere Gangemi. The newsletter does not replace individual legal consultation. Macchi di Cellere Gangemi assumes no liability whatsoever for the content and correctness of the newsletter.