Can the UK gain access to EU talent post Brexit?

Until 23:59 on 29 March 2019, the UK remains part of the EU.  This means that EU citizens currently benefit from the right of free movement into the UK (and will continue to do so for the immediate future), allowing talented tech professionals to take up UK employment without prior approval. 

Brexit will see the end of free movement, but not immediately.  Post-Brexit, there will be an implementation period during which UK laws will start to change.  For immigration purposes, there will be no change to requirements for EU nationals until the implementation period ends on 31 December 2020.  EU citizens living in the UK at the end of the implementation period will need to secure new residence documents by mid-2021 to continue living and working here. 

After the implementation period ends, so from 01 January 2021, free movement will no longer be available to EU talent, who will then need an alternative immigration option.  There are several of them to choose from, depending on whether the individual will be an employee, an innovator or someone with exceptional talent. 

Sponsored workers in the UK – employees of UK companies

Migrants who wish to take employment in the UK require the sponsorship of a UK company.  This sponsorship is dependent on 3 things:

1. The company has a licence to sponsor – this must be secured before any sponsorship can commence;
2. The job role is sufficiently skilled – not all jobs are suitable for sponsorship, and the post-Brexit immigration system will only permit sponsorship for jobs skilled to A level or higher.  This is unlikely to be an issue for tech experts;
3. The job pays a sufficiently high salary – a minimum starting salary of £30k crosses the threshold for experienced workers in the UK, but often individual jobs demand higher wages to be acceptable under the sponsorship scheme (IT specialist managers must be paid £41K, for example).  Negotiations remain underway in relation to the appropriate salary for graduate positions, but there is no consideration of London weighting, so this can be an issue for start-ups or regional businesses. 

Providing the requirements of sponsorship can be met, an individual is able to work in the UK for a maximum of 6 years.  By the expiry of that time, they must either qualify for permanent settlement (available from 5 years) or leave the UK.   

Exceptional talent – the ‘brightest and best’

The exceptional talent route is an exclusive visa option for individuals who display extraordinary skills in certain sectors.  Tech applicants are welcomed to the route, endorsed by the organisation Tech Nation.  To qualify, applicants must show exceptional talent or exceptional promise, either in a technical or a business role focused on digital technology.  Talent applicants are those established in their field who are already recognised as industry leaders.  Promise applicants are graduates or others with less experience, but who demonstrate potential to become leading talent. 

The exceptional talent route offers one of the quickest routes to settlement in the UK, with a qualifying period of just 3 years for those entering the route as talent applicants (rather than promise). 

How easy will it be to recruit?

While there are several options available, applications like these will be a lot more onerous for employers than the current ID checks needed for EU nationals.  The different immigration categories have individual specific requirements, with specified documents needed to ensure that all rules are met.  Unfortunately for employers, this is likely to mean longer periods for recruitment to be completed, and for sponsored workers, a greater administrative burden to show compliance with the scheme. 

In the immediate short-term after Brexit, employers should not be adversely affected.  The implementation period extends free movement for another 2 years from the time of writing, during which EU talent is welcome as normal.  However, from 2021, the process will be very different, and employers should consider future options now so they are ready when changes take effect. 

This article was written by Gary McIndoe, immigration solicitor at Latitude Law. An expert in the field of immigration and asylum, he is an AILA International Associate and has contributed the immigration chapter to ‘Doing Business After Brexit’.