The ‘New Normal’ - seven changes to the Immigration landscape that employers need to know
As we slowly edge out of the lockdowns a new immigration landscape will present itself for businesses across the UK. In December, the Home Office changed the rules on sponsorship just in time for the Brexit transitional agreement to come to an end. So what does this mean for employers?
The end of free movement means it will be more difficult and expensive to bring over EU nationals.
EU nationals who are not already in the UK (or who have not built-up residence in the UK previously) will now need to be sponsored to enter the UK to work.
Employers will need to be careful executing right to work checks.
The Home Office allows employers to accept EU passports as a valid right to work check until 30th June 2021, however it remains a criminal offence to knowingly employ someone who has no right to work. This could prove difficult where you have EU nationals starting after 1st January 2021. Care needs to be taken to ensure that it could not be considered that the employer would have reasonably known that a person had no right to work.
An expansion of the roles eligible to be sponsored means that you may want to sponsor more workers.
The changes to the Rules have resulted in many more jobs being eligible for sponsorship. HR teams should consider before posting job adverts if they think that the role is likely to attract skilled migrant workers and build this into their recruitment plans. The Home Office likes good records to be kept to evidence the genuine vacancy and you should be aware of the minimum salaries and costs associated with sponsoring a skilled worker from the outset.
The end of the Resident Labour Market Test does not mean that there is an end to the records that you need to retain for recruitment
Many HR teams up and down the UK let out a sigh of relief when the Home Office elected to scrap the resident labour market test, the onerous requirement that dictated the nature and placement of job adverts. However, you need to continue to demonstrate that the migrant is filling a “genuine vacancy”. Further, in the new guidance issued a week before the new rules came into place, the Home Office has stated that where a job has been advertised detailed records of the advert must be retained. The guidance goes on to specify exactly what should be retained depending on the mode of advertisement. HR teams need to be cautious from the outset of any recruitment to ensure that accurate records are kept in case it leads to a preferred candidate who needs to be sponsored.
Salary thresholds are even more complicated
There continue to be minimum salaries and minimum rates of pay all of which can be found in Appendix Skilled Occupations to the Immigration Rules. This process is complicated as the minimum that you need to pay depends on the role and the background of the candidate. Discounts to the going rate and the minimum salary are offered where the role is on a shortage occupation list, where the migrant is new to the labour market or where the job role requires a PhD for example. Care needs to be taken early to manage the employees and the manager’s expectation of salary progression. Getting the salary wrong can result in a CoS being refused, an application being rejected and sanctions from the Home Office.
The end of the monthly cap will make sponsoring employees who are overseas more straightforward.
Under the old system, an HR team would have to manage the rolling monthly application process for a restricted certificate of sponsorship with no guarantee that they would get a certificate. The new system is much more straightforward with certificates often being granted within 48 hours of being applied for.
The costs only go up
While the Home Office froze most of their fees last year it remains a very expensive business to rely on migrant workers. Charges such as the Immigration Skills charge as well as the costs associated with the licence and assigning certificates can be a burden. Employers should also be aware of the visa fees and the Immigration Health surcharge which needs to be paid by the worker and their family, these fees often run into thousands of pounds. More detail on what it costs to sponsor a migrant worker can be found in an earlier blog here.
What do you need to be doing now?
As we emerge from this lockdown employers need to look at their recruitment plans for the next year. A focus should be placed on where you rely on a turnover of EU workers and consideration needs to be given on whether you are likely to need to sponsor more workers.
If you already have a license, consider increasing your annual renewal of Certificates of Sponsorship to reflect that more workers might need to be sponsored or if you don’t have a license, consider making an application for one now so that you can more readily sponsor a worker if the need arises.
Blair Melville is an expert immigration solicitor with experience advising employers of all shapes and sizes from start-ups to multinationals, and from religious organisations to Russell Group Universities. Contact him on blair.melville@teneulegal.com to discuss how Teneu can help you apply for a sponsor licence or manage an existing one.
