Employing Foreign Workers in the UK
This blog has been updated following changes reported on 20 August 2020. These reports suggest that the new UK visa system will be substantially like the existing system. There is one key difference - the annual immigration cap at 20,700 will be abolished. This means that there will be more certainty that a skilled worker can join a sponsoring firm.
Broadly we believe that the new system will be good for employers in trying to hire high-skill workers from abroad.
The ‘new’ system will apply from 1st January 2021.
Currently only British citizens, citizens of the European Economic Area (EEA) and Swiss nationals can work in the UK without needing a visa. As the UK leaves the EU, there will be changes at the end of 2020 as the transition period ends.
Whilst we make a blanket statement above of who can work in the UK today, it’s the manager’s responsibility to check that the person they are about to employ is eligible to work in the UK. There are several special cases. And ignorance is no defence.
But after the UK leaves the EU, the situation simplifies – every foreign worker needs a visa.
This article will now go on to discuss employing foreign workers in the UK. If you are seeking information on how to employ foreign workers abroad (rather than in the UK), follow this link to our associated paper.
Why employ overseas nationals?
The UK is suffering a massive skills and labour shortage.
Firstly, there’s an urgent need to need to fill roles demanding, for example, technical skills or languages that are not available in the current UK talent pool. Considering the National Health Service, National Audit Office data shows that in 2016 there were just under 28,000 too few nurses, midwives and health visitors. There were also 5,000 too few doctors. Overseas workers provide the technical skills needed for these roles. In the past many nurses have been employed from the Philippines, the Caribbean and Africa, whilst trained doctors from countries in South Asia have been eagerly employed to overcome the shortage.
Whilst we hear a lot about the NHS, any manager in a technology-centric business will tell a similar story – the UK simply has too few engineers and scientists and other such specialisms.
Secondly, we need to employ overseas workers to do work that UK nationals simply won’t do. These tend to be temporary, low-skilled jobs – fruit picking comes to mind. Temporary workers are attracted to the UK to take up these roles, many of which are seasonal.
So, overseas nationals are needed to fill roles that UK nationals can’t fill, either due to lack of training and relevant qualifications, or because UK nationals consider the roles too menial.
The Government points-based immigration system to be introduced from January 2021 will support the recruitment of skilled workers to the detriment of temporary and low-skilled workers. The minimum 70-point requirement will be hard, if not impossible, for low-skilled applicants to reach.
Low-skilled immigration will stop, and the second reason above will be left unsatisfied.
Post Brexit – January 2021 onwards
Fundamentally, a foreign worker (from anywhere in the World) will need a visa to work here from 1st January 2021. There are several routes to achieve this. Each is discussed below.
Skilled worker route
Skilled workers will need to demonstrate the following:
- That they have a job offer from a Home Office licensed sponsor
- That the job offer is at the skills level RQF3 (A level equivalent) or higher
- That they speak English to the required standard.
There is also a minimum salary threshold that must be met. This is currently £25,600. Alternately the job offer must have a salary commensurate with ‘the going rate’ for the job if this is higher.
There are some cases where the minimum salary is £20,480. These are jobs in designated shortage occupations and some PhD jobs.
The government uses a Standard Occupational Classification code to determine the skills level for every job. The SOC is to be updated to expand the list of jobs that will meet the skilled worker route for work visas.
From January 2021 employers will need to pay £1,000 in the first year for each person employed through the skilled worker route. There is a further charge of £500 per employee for every six-months thereafter. There are to be discounted rates for charities and small businesses. These discounts are yet to be announced.
From 4th August 2020 a ‘Health and Care Visa’ has been introduced. This new skilled worker route has been implemented to encourage workers in the social care sector to apply for a Health and Care Visa. This visa is relevant to the NHS, the social care sector and organisations providing services to the NHS.
Global Talent route
From January 2021 highly skilled people will be able to enter the UK without a job if they achieve the required level of points and they are endorsed by a Home Office approved UK body. Currently there are six bodies listed. These are:
- The Royal Society, for science and medicine
- The Royal Academy of Engineering, for engineering
- The British Academy, for humanities
- UK Research and Innovation, for science and research
- Tech Nation, for digital technology
- Arts Council England, for arts and culture
It’s not yet clear what endorsement by those bodies means. It is possible that membership of a UK professional institution, under the umbrella of each of these bodies, will be needed.
This route is for international students who have completed a degree in the UK from summer 2021. They will be able to remain in the UK for two years after the end of their studies. They will be able to work at any skill level and this is an unsponsored route.
This allows multinational firms to temporarily move people to the UK from overseas subsidiaries. An intra-company transfer visa is needed before people can move to the UK to work. The job has to be at RQF 6 (graduate level) and is also subject to the same minimum salary threshold as the skilled worker visa.
As with the previous visa sponsorship system there is a Start-Up and Innovator visa. There are minimum funding thresholds in each case. Other routes are the creative route, sporting route and youth mobility route.
The Seasonal Workers Pilot will run to the end of 2020. This is the route for bringing in seasonal workers such as fruit pickers. It’s not known if this will continue, or if low-skilled workers will be simply be blocked from immigration.
Before skilled workers can apply for a visa they must be sponsored by a firm. The process for doing this is discussed below.
Applying for a visa sponsorship licence
For many years now, organisations wanting to employ a skilled worker from outside the EEA had to register with the Home Office and have a sponsor licence in place.
The Government will retain this licence in the new arrangements. From January 2021, all firms wanting to attract skilled workers from abroad must have a sponsor licence.
The process for securing a sponsor licence is onerous and requires a good deal of research to ensure that the correct data is provided in the application. If incorrect or incomplete data is provided the application if likely to be thrown out.
Having worked through the sponsorship process with clients, we know only too well the level of detail required to make the application.
It’s crucial to read, and re-read, the guidance notes provided. You’ll have questions about the information you are asked to provide. There is a helpline, and your call will be answered with reasonable speed. However, don’t expect to get real help. You’ll be told to refer to the guidance documents. And when you say “but they’re ambiguous” you’ll be told to "refer to the guidance documents"!
Before you make an application, you need to be sure that you meet the eligibility criteria. This includes having processes in place to monitor sponsored employees if you are granted a licence. This involves having robust HR management systems in place and operational. You also need to know what jobs(s) you require licences for. There is a standard occupational classification list (SOC) to which you’ll need to refer.
Next you need to assemble the relevant documents for submission. Make sure that all the documents conform with stated requirements. Get it wrong and your application will fail.
Having checked that the role you are recruiting to is on the list of occupations valid for sponsorship, you will need to prove that you have tried, and failed, to appoint someone already resident in the UK. There are strict criteria for this aspect of the application process. Simply sticking the vacancy on your website won’t be enough. You will need to demonstrate adequate recruitment effort with supporting evidence.
It’s easy to fall foul of this Resident Labour Market test. If you phone the helpline they’ll refer you to the guidance documents – and as noted, they’re ambiguous.
Having sorted the proof of failed recruitment, which may take a few months, you are ready to make the application. Read and re-read the guidance notes. Work out how to assemble the documents. Take copies of the documents. Pay the relevant fee and send off your application pack.
In our experience, getting the detail right, submitting the correct documents in the correct order and fully completing the application form will ensure that your application is able to succeed if you meet the assessment criteria. We may have been lucky so far, but we’ve managed to do it in as little as four weeks from application to the granting of a licence!
If you need skills from outside the EEA then you should consider applying. It’s not cheap, it’s not easy – but it is doable. It’s frustrating and the attention to detail is important.
The recruitment campaign must be carried out for at least 28 days, and the sponsorship application can take up to 8 weeks to be dealt with. This means the process is likely to take 3 to 4 months from the point you determine there is need for one or more sponsor licences to the point at which you know if you have been successful in your application.
Once you have the licence
You must manage the sponsorship process. It’s up to the prospective employee to apply for a visa, but you need to provide them with a Certificate of Sponsorship (CoS). You’ll have applied for a number of CoS in your visa sponsor licence application and if successful, you’ll have a number to issue to visa applicants.
It’s important for you to keep full records regarding your sponsorship certificates.
Once you have the sponsor licence and CoS, you can make an offer to the prospective employee. They must then use the Certificate of Sponsorship to apply for a visa. There is, however, no guarantee that they will be granted a visa.
Visa processing staff will use the eligibility criteria to assess applications.
Each visa application will be assessed against the UK Visas and Immigration department’s points-based decision system to decide who gets a visa and who doesn’t.
Points are awarded for passing an English language test, for having adequate funds when the visa holder comes to the UK, for qualifications and for rare skills.
The threshold is 70 points and it’s really not difficult to score 70. Even a visa applicant with a Level 3 qualification (the lowest) where the visa sponsor has passed the Resident Labour Market Test can score 75 points and hence pass the first hurdle.
NB, we assume that the Resident Market Test will be retained. There have been no reports on this, though.
In addition, the visa applicant may need to show travel history for the past five years, and depending on where they come from, they may need to show that they are tuberculosis-free. If they are to work with children and other vulnerable groups, they may need to provide a criminal records certificate.
The Government reports that the system from January 2021 will be more transparent and usable. There will, it reports, be a guarantee of a visa for those getting 70 points, because there will be no quota.
In line with UK Government policy, the people getting visas will be those that can contribute to the UK economy and society through the skills they possess, and not just those that firms want to sponsor.
If you want any help in applying for a sponsorship licence give us a call. If you decide to employ people in their country of origin have a look at our blog the subject. Then, give us a call.