Recruiting from Outside the UK Post Brexit

As if we did not have enough to contend with right now; getting our heads around the new Covid 19 tier system, the “Rule of 6” and who is in a Support Bubble, Brexit trade talks are gathering momentum in tandem with the panic over rising cases of the coronavirus disease across the UK. So, you could be forgiven for not paying too much attention to the inevitable changes in the movement of labour into the UK from the New Year.

With the number of people being made redundant in the UK rising at the fastest rate since records began and with statistics confirming that these cases almost doubled in the three months to August as the ramifications of the Covid led recession rippled through the jobs market, it might seem wholly irrelevant to consider how to employ non-UK residents next year; insensitive even.

Given current circumstances, some businesses may well not have the appetite to hire at all for the foreseeable future. I, for one, hope that when the market improves, as it inevitably will, we look to the fabulous pool of talent already here to fill vacancies as they arise – British & non-British. What better way to kick start the economy in a post-Covid world than boosting the UK’s employment? 

In addition to employers accepting that at some point in the future they will need to be Brexit ready, the new rules will have more immediate consequences on overseas nationals already here (Frontier Workers). In the melee that is Covid, it is vital that individuals familiarise themselves with the government plans and ensure that they are safe and settled in the UK and that they take the appropriate action BEFORE 31 December 2020.

If you have not already done so, EEA and Swiss citizens living and working in the UK now, and with plans to remain, should apply to the EU Settlement Scheme (which also applies to family members) as soon as possible. The feedback I have had suggests that this is a relatively painless process and applicants are currently being processed pretty quickly – a bit of peace of mind in uncertain times.

Looking to the future, from 1 January 2021, the freedom of movement that we have enjoyed for so long between the UK & the EU will end and the UK will introduce a points-based immigration system designed to treat all applicants equally regardless of their country of origin. If an employer wishes to recruit from outside the UK, excluding Irish citizens, they will need to apply for permission to do so first.

Of course, a points-based system is not an unfamiliar concept in the UK and the new scheme will provide a route for skilled workers who have a job offer from an approved sponsor in the UK and will operate along similar lines to the existing Tier 2 visa category. Points will be awarded to migrants for specific skills, qualifications, salaries and shortage occupations and work visas will be issued to those who gain sufficient points.

Companies wishing to hire from outside the UK will be required to enrol as an approved sponsor and will be expected to provide an estimate on their applications of how many certificates they need (and will need to justify the numbers!). Once a licence has been awarded an employer can then issue certificates of sponsorship, which must be used within three months of issue, to each new recruit from overseas. It is worth noting here that the number of visas available for dependants will be restricted.

As always the rules can get a little complicated so I would advise that you visit the government website for full details, but here is the headline news.

Employers - Are you sponsor licence ready?

If you think you will need to recruit skilled migrant workers from 1 January 2021, which will include EU migrants who were not living in the UK by 31 December 2020, you will need to have been granted a sponsor licence by UK Visas and Immigration (UKVI). Of course, many businesses will already hold a sponsor licence, but, if you don’t and are able to meet the eligibility criteria, UKVI recommends applying now. That said, these guidelines were released before the pandemic so demand may not be as high as originally anticipated in the early stages of transition.

There are 2 types of licence:

• Tier 2 – skilled workers with long term job offers (permanent) including intra-company transfers;
• Tier 5 – skilled temporary workers.

If you already hold a Tier 2 (General) visa sponsor licence, you will automatically be granted a new Skilled Worker Licence.

If your new application is successful, UKVI will:

• Add you to its register of sponsors, which lists all the organisations that are licensed to sponsor migrants under the UK immigration system;
• Prior to 1 January 2021 you will only be able to sponsor migrants for roles that are at least Regulations Qualifications Framework (RQF) Level 6 (equivalent to degree level);
• From 1 January 2021 the skills threshold will be dropped to at least RQF Level 3 (equivalent to A-Level).

Standard sponsor licence processing times are estimated at less than 8 weeks although expects to be processing a large volume of applications in the run up to 1 January so delays may occur.

Who can apply for a sponsor licence?

• You must be a genuine business operating legally in the UK;
• There must be no evidence that you are a threat to immigration control;
• You must be able to offer genuine employment skilled to at least RQF Level 3;
• You must pay an annual salary of at least ￡25,600, or the going rate for the job, whichever is the higher (there are exceptions to this rule if the job pays no less than ￡20,480);
• You must nominate people to fulfil the sponsor licence key personnel roles of Authorising Officer, Key Contact and Level 1 User;
• You must be able to meet your immigration compliance responsibilities as a sponsor;
• You must complete an online application form and supply UKVI with certain mandatory information and documentation.  
• If successful you will be granted an A-rated full sponsor licence.

Compliance – it is an employer’s responsibility to implement adequate controls to comply with UK immigration law;

A sponsor licence holder is required to act in accordance with UK immigration law and guidance; UKVI may wish to visit your business premises to carry out a sponsor licence audit. This could happen before they approve your application or whilst you hold the licence. They will be looking at your HR systems and processes and interviewing key personnel to assess whether you are able to comply with your sponsor licence duties;

Before you make your application, you should ensure that:

• You are conducting right to work checks of all employees in line with UKVI guidance; and
• You have suitable HR processes in place to comply with your record keeping and reporting duties as a sponsor;

Failure to comply with your sponsor duties can lead to harsh penalties such as suspension, or revocation, of your licence as well as civil penalties and criminal convictions for illegal working. 

Intra-Company Transfers

You can still transfer a worker from a part of your business overseas to work for you in the UK via the Intra-Company Transfer route.

• Applicants will need to be existing workers who will undertake roles that meet the skills and salary thresholds;
• Be sponsored as an Intra-Company Transfer by a Home Office licensed sponsor;
• Have 12 months’ experience working for a business overseas linked by ownership to the UK business they will work for;
• Be undertaking a role at the required skill level of RQF6 or above (graduate level equivalent)’
• Be paid at least ￡41,500 or the ‘going rate’ for the job, whichever is higher;
• Permission for workers transferred to the UK on the Intra-Company Transfer route is temporary;
• Workers can be assigned to the UK multiple times, but they cannot stay in the UK for more than five years in any six-year period;
• Workers paid over ￡73,900 do not need to have worked overseas for 12 months and can stay for up to nine years in any ten-year period;
• Workers who are transferred to the UK as part of a structured graduate training programme for up to one year can apply for the Intra-Company Graduate Trainee route (different rules on length of overseas experience and salary).

Cost

We all know that there is no such thing as a free lunch and, inevitably, there will be costs associated with the recruitment of non-British Nationals from 2021. Whilst costs are flexed to the advantage of small business and charities compared to medium and large sponsors, licence and compliance costs may well be viewed as prohibitive, especially if your need for new hires tends to be low.

With licence fees of either ￡536 or ￡1476 for Tiers 2 and 5 respectively, with the option of a “premium scheme” at ￡8,000 per annum, an employer can expect to speculate before it can accumulate. It is worth noting here that there are no appeals for rejected applications where there is no evidence of a mistake – but you can reapply.

Each individual certificate issued will cost an employer between ￡21 and ￡199 and there will be a further annual immigration skills charge for visas for 6 months or more (this change does not apply to dependant visas).

The skills charge is currently set at ￡364 per sponsored employee per year for small business and charities and rising to ￡1,000 for medium to large sponsors; each additional 6 months will cost ￡182 or ￡500 respectively. The maximum length of time a business can sponsor an overseas worker will be set at five years and ergo costs could run from ￡1820 to ￡5,000 per employee over that period.

So… again, hopefully, a strong enough argument, at least in the short term, to look to the existing talent pool in the first instance without ruling out reaching out in the future and where much needed skills are still short in the UK.

We have a rich abundance of talent in the UK currently furloughed, redundant or simply seeking a career move. Let’s take up the slack whilst at the same time be proactive when planning for the future. Having witnessed the most acute skills shortage over the past five years or so it is vital that the UK moves to maximum employment as soon as possible once the current crisis is under control and is then poised for labour and economic growth well beyond 2021.

By the way... ballerinas are cited on the government website as being well and truly on the Shortage Occupations List… just saying!