Business Immigration: Sponsoring Foreign Workers Post Brexit

This article comes from Immigration lawyer, Jay Moghal.

As we head towards the end of the transitional period and the UK leaving the EU on 31 December 2020, we explore what this means for businesses and recruitment of overseas workers.

From January 2021 any new arrivals from the EU will have to apply for sponsorship from their perspective employer if they wish to live and work in the UK.

As the new immigration system rolls out on 1 January 2021 we need to consider what steps employers should be taking to ensure that they are ready.

Employers are encouraged to carry out an audit of their workforce and consider the nationalities of their employees. Does the workforce rely heavily on EU workers and is this likely to continue? Have your existing EU workers applied for settled or pre settled status?

If the business is likely to need to fill a skill gap by recruiting a foreign national, they will have to apply for a licence that will enable them to do so.

What is currently the Tier 2 Sponsor Licence, will be called a Skilled Worker Licence or an Intra Company Transfer Licence depending on which category suits the employer.

Whilst the end of free movement will be bad news for employers relying heavily on an EU workforce, the good news is that the new system makes it easier for employers to sponsor such employees.

What are the key changes?

1. Removal of the Resident Labour Market Test (RLMT)

Currently employers wishing to sponsor an employee from outside the EU must first advertise the position on two approved mediums (unless certain exemptions apply). Employers must confirm that they have been unable to fill the position advertised by a local worker.

The new rules will not place any such requirements on employers. They are free to choose who they wish to fill a vacancy.

2. Lower skill threshold

Currently employers are only permitted to sponsor employees if the job in question has a minimum skill level equivalent to NQF level 6, unless the role falls within ‘The Shortage Occupation List’. NQF level 6 roles are considered graduate level and above roles. The Home Office have a published list of roles that they deem to be at this particular level and have minimum salary thresholds for those roles.

In the new rules, the good news is that, all positions that are at a skill level of NQF level 3 will be roles under which foreign employees can be sponsored. We already have a list of published roles that are considered to be at NQF level 3.

The Shortage Occupation List sets out jobs which are in short supply in the UK and therefore may need migrants to fill these positions. This list is constantly monitored and will continue to be monitored.

3. Lower salary thresholds

Currently employers are required to pay a minimum salary of £30,000 per annum. In most cases the minimum salary payable for a particular role will be higher than the £30,000 per annum in any case.

In the new rules, the overall minimum salary payable has been reduced to £25,600 per year. There is further flexibility if the person that the employer wishes to sponsor is under 26 or switching from a student visa in which case the overall minimum is reduced to £20,480 which keeps it in line with average wages for graduates.

4. No annual cap

Currently the Home Office has a cap on the number of people that can be sponsored under the skilled worker routes. Employers are required to request certificates of sponsorship in order to sponsor their workers and then usually have to wait to see if they fall within the monthly quota. This sometimes can mean delays in receiving a certificate of sponsorship if the limit has been reached in a particular month.

In the new rules, there will be no cap and employers will be given a certain number of certificates every year depending on their recruitment needs. Further certificates should be made available within 24 hours if they are needed.

Overall, it is hoped these changes will make it a lot easier for employers and businesses in ALL industries to ensure that they can continue to recruit the talent that they need. We appreciate the new immigration rules are complex so if you need support or advice getting to grips with these, please do get in touch: 0117 325 0526 / enquiries@menzieslaw.co.uk

Jay Mogul is a solicitor with over 15 years’ experience specialising in UK immigration.  He has worked at a number of niche immigration law firms as well heading an immigration department at a top 40 international law firm.

His work has seen him advise businesses on;

• applications for sponsor licences in order to sponsor foreign workers
• advice on their ongoing duties as sponsors to maintain such licenses
• setting up operations in the UK & the most efficient ways to transfer employees to the UK business from their international branches
• the duties and obligations of sponsors following a merger or acquisition
• prevention of illegal employment.