Amidst all the Covid-19 developments, the Brexit transition process came to an end on 31 December 2020. A new immigration system now applies.
As HR teams are now hopefully feeling that they have got workforce matters under control again following the most recent lockdown, why not take a few minutes to get an overview of what has changed in relation to migrant recruitment. In this article we look at what employers need to know about the new system, focusing on the two core issues of recruiting staff from abroad and right to work checks.
Recruiting new staff from abroad
The introduction of a new Points Based System includes several different immigration routes for both EU and non EU nationals who wish to work in the UK. In this article we’re focusing on the Skilled Worker route.
In a nutshell
Skilled worker route
EU and Non-EU migrants (with the exception of Irish citizens) who do not already have the right to work in the UK under the pre-2021 regime will now essentially be treated the same going forwards. The Points Based System with sponsorship licences etc that already applied to Non-EU migrants has been amended and extended to EU migrants. In summary, employers will have to have a sponsorship licence and migrants will have to earn points in order to qualify for a visa.
Employers will need to apply to the Home Office for a sponsorship licence. The application process can be completed online here but necessitates gathering certain information and documentation to establish that the business is genuine, that it has adequate processes in place to satisfy its sponsor obligations and that it will be able to monitor compliance going forward. Nominated people will need to be given prescribed responsibilities. There is a fee payable, which is dependent upon the type of licence required and the nature and size of the applicant organisation. Applications can take up to 8 weeks to be dealt with.
A licence can be withdrawn or downgraded if the employer does not comply with its ongoing sponsorship duties, which include tracking employee attendance, reporting if the employee stops coming to work or is not complying with their visa conditions, and notifying of a merger/take-over. If a licence is downgraded, the employer will not be able to issue new sponsorship certificates until it has satisfied all the steps of an action plan issued by UK Visas and Immigration (and paid for the action plan).
When a sponsoring employer wants to recruit someone from abroad it needs to assign a ‘certificate of sponsorship’ to that individual, which then allows them to apply for a visa. There is an Immigration Skills Charge levied for each certificate of sponsorship that an employer issues. The charge is intended to encourage employers to invest in training and develop their existing workforce in the UK instead, and the amount varies depending on the size and nature of the employer, and how long the job offer is for.
An employer can only issue a certificate of sponsorship to someone and that individual can only get a visa if the points threshold (70) is met. However there is no longer a need for the employer to show that it has tried to recruit from the resident labour market but has been unsuccessful.
Points are earned from the job being:-
- offered by a sponsoring employer (20 points)
- paid at the required salary (20 points) – The salary must generally be at least at £25,600 or the ‘going rate’ (as determined by the Government) whichever is higher.
If the role does not meet the salary threshold, points can nevertheless be made up (‘traded’) if the individual is a new entrant to the labour market or has a PhD relevant to certain roles, or the role is a shortage occupation. Current shortage occupations include nurses, social workers and IT business analysts, but the list will be reviewed and updated from time to time; the salary threshold is reduced to £20,480 for shortage occupations.
- at the required skill level (20 points) – The minimum skill threshold has been lowered from graduate level occupations to occupations skilled to “RQF level 3”, which is roughly equivalent to A-levels. The skill threshold relates to the level of the job, not the qualifications of the individual. Huge lists of jobs are available to enable employers to determine whether their vacancy is at the required level or not.
The remaining points are obtained by the applicant being able to speak English to the required level (10 points). However even if 70 points have been gathered, a visa may (and in some cases, will) be refused if the applicant has a criminal record or their presence in the UK is considered not to be conducive to the public good. There are also other situations where the applicant can be denied a visa because of their behaviour.
There is currently no ability for overseas recruitment to be used to fill lower paid or so-called lower skilled roles. The potential impact of this, for example in social care, has already been widely aired.
Right to Work Checks – EU Nationals in the UK before 31 December 2020
For the avoidance of doubt, EU nationals living in the UK before 31 December 2020 will have until 30 June 2021 to apply for pre-settled or settled status under the EU Settlement Scheme in order to retain the right to live and work in the UK. Employers are not obliged to inform existing EU employees about the actions they need to take under the Settlement Scheme, but many provided information when the Settlement Scheme was originally introduced and are doing so again now.
Employers will not need to check that their existing EU employees have successfully applied under the Settlement Scheme.
For new recruitment of EU employees who were resident in the UK before 1 January 2021, until 30 June 2021 they can continue to demonstrate their right to work in the UK using the same documents that could have been provided before 1 January 2021. Employers will not have the right to demand proof of Settled Status for recruitment before 30 June 2021. For EU employees who choose to prove their right to work via their Settlement Scheme status, and for recruitment of EU employees from 1 July 2021, an online check will replace the previous documentary checks.
If you require further information, do not hesitate to contact Melissa Chuttur or your usual contact in our Employment, Human Resources & Pensions team who would be pleased to assist you.