EU nationals in the UK: what is the current state of play?

Freedom of movement has ended with the UK leaving the UK and EU nationals are now generally treated the same as any other skilled worker. This update aims to cover three situations that have come up recently in our casework. We would advise that anyone employing EU nationals, who have not yet regularised with a visa or pre-settled or settled status, seek legal advice as soon as possible.

EU Settlement Scheme

Although the deadline for the EU Settlement Scheme (EUSS) was 30 June 2021, the scheme hasn't closed entirely.

Any family members are still entitled to apply, so long as the family relationship existed prior to 31 December 2020, and still exists to date. This is likely to be preferable to standard family routes since no immigration fees apply and caseworkers are encouraged to exercise evidential discretion under EUSS.

Any other EU nationals can also apply if they can show 'reasonable grounds' for missing the deadline.  These reasonable grounds could include someone who did not know that they were entitled to apply, or someone without access to the internet. The more time goes on, the more difficult this will be to argue, particularly when someone has been employed in a professional context. However, some of the other reasonable grounds may still be arguable. For example, someone with permanent residence, who was not aware they needed to apply for settled status, could still apply. An EU resident with indefinite leave to remain (ILR), while not required to apply, may wish to make a late application, due to the benefits of having settled status compared to ILR. The main one is being able to spend five years at a time outside the UK without losing their status rather than two.

Skills shortages

Professions that have traditionally been made up of a high proportion of EU workers are now having to adjust to the new immigration rules. Migrants coming to the UK on working visas must now show that they meet English language requirements at Level B1, based upon their country of nationality, qualifications taught in English, or by passing an approved language test. This was never a requirement for EU nationals previously.

Some of these professions also do not meet the requirements for Skilled Worker or Global Mobility visas. These visa categories typically have minimum salary requirements of £25,600 and £42,400 respectively.

In addition to the salary requirements, jobs must be matched to the Standard Occupation Classification codes at RQF3 or above, equivalent to A level. Many practical professions are seen as lower skilled, such as carpentry, plastering and constructions trades. A shortage of workers in these professions cannot be filled by issuing skilled worker visas. In January 2020, the Migration Advisory Committee recommended reclassifying 12 "lower skilled" occupations as RQF3, but this has not been taken up.

Sponsoring a skilled worker carries a lot of fees which businesses relying on EU migrant workers would not have previously had to consider. There is the cost of setting up a sponsor license, issuing certificates of sponsorship and of paying the immigration skills charge. Generally, sponsors will also pay the application fees for their employees, too.

Applicants cannot start work until their applications are granted, which can take a significant amount of time. The Home Office has consistently had issues in meeting its own service standard timeframes for decisions, particularly since the Covid-19 pandemic.

In August 2022, the Migration Advisory Committee received a formal Home Office commission to review the Shortage Occupation List. This commission is currently on hold pending clarification from the government. Expanding the shortage occupation list could help ease the burden on employers by reducing the minimum salary requirement, and applying with reduced immigration fees.

Ultimately, all of the above mean that employers in many fields must look to a less traditional labour market for recruitment. In order to maintain their share of the market, they may need to make their sector more attractive by increasing wages and benefits, and reducing labour intensiveness.

Frontier worker

Some EU workers, who were not eligible to apply for the EUSS, due to living outside of the UK, will nonetheless be able to apply for a Frontier Worker permit, in order to continue to work in the UK. This scheme was introduced alongside the EUSS, but remains open to date, and there is no requirement to show reasonable grounds for delay if applying now.

Employers should be very aware of any EU nationals working in the UK without a work visa, even if they only come to the UK on an infrequent basis. The business visitor scheme is very limited, whereas a Frontier Worker permit will cover "genuine and effective" work.

Applicants must be EU nationals who have worked in the UK since prior to 31st December 2020, and who continue to work in the UK now, but do not reside in the UK.

This application carries no fee, and the applicant does not have to pay the Immigration Health Surcharge. The employer does not have to apply for a Certificate of Sponsorship and pay the associated fees.

This permit is therefore very useful in filling the gap for employees who worked in the UK under freedom of movement, did not accumulate enough residence for the EUSS, but have continued to work in the UK post Brexit. Skilled Worker visas are not wholly appropriate in these circumstances, and they are also far more expensive.

Frontier Worker permits are valid for five years if all requirements are met. However, they do not lead to indefinite leave to remain, and they do not include the right to apply for dependant family members. This route suits those who do not have the future intention of living in the UK and settling here.