By Christopher McWatters, of Counsel
With the approach of Brexit and a Tory government that is committed to bringing immigration down to the tens of thousands in power in the UK, an employer might feel that the prospect of being able to employ foreign Tier 2 workers under the Points Based System seems bleak however, this is still possible under the Tier 2 Sponsorship Licence process.
How can a Sponsor Licence holder hire a skilled Tier 2 migrant worker?
If you as a Tier 2 employer want to employ a foreign national under either the Tier 2 (General) or the Tier 2 (Intra Company Visa), there is a mechanism whereby employees can apply to the Home Office for a Sponsor Licence to be able to employ someone from outside the European Economic Area (EEA) or Switzerland (there will be more on how below). With licence in hand, an employer can then issue a “Certificate of Sponsorship” or CoS – essentially a job offer – to a prospective employee from outside the UK.
The key to doing this successfully is to show that the person you want to employ is a “skilled” worker.
What is a Tier 2 “skilled” worker?
The Home Office explains in a somewhat convoluted 207-page document called “Tiers 2 and 5: guidance for sponsors.” The guidance covers both long-term job offers (Tier 2) and temporary positions (Tier 5).
In the general Tier 2 category, the skilled occupation would have to be at or above Regulated Qualifications Framework (RQF) level 6; level 6 is first degree level. This does not mean that your migrant employee has to be educated to that level, but that the work the migrant will be undertaking, as the Home Office puts it – “is pitched at that level”.
The purpose of Tier 2 is to allow employers to employ foreign workers to fill skilled jobs that cannot be filled by the national workforce. It may be that you are lucky enough as an employer to be seeking to employ someone to do one of the jobs that the British government is pro-actively willing to consider foreign nationals for. These are listed on the shortage occupations list given in Appendix K of the Immigration Rules; the list includes a mixture of specific engineering, IT, medical and art roles.
What if the role is not included on the shortage occupation list?
If the skilled vacancy you want to fill by employing a foreign national is not included on that list, then you will almost certainly have to see if there is an alternative native candidate with adequate skills to take on the role by conducting what is known as a “resident labour market test” for the position. The resident labour market test requires you to advertise the position you wish to fill. If a “settled worker” candidate possesses all the necessary skills and experience for the position advertised, then you must employ this candidate in preference to a foreign candidate even if the foreign candidate is more skilled or experienced.
The position must be advertised for a continuous period of 28 days. Most jobs must be advertised online through the Job Centre Plus Universal jobmatch, and additionally in another forum including national newspapers or professional journals.
It is vital to ensure that the advertised vacancy for a skilled worker is a genuine vacancy. The Home Office have been strict in revoking sponsors’ licenses to employ Tier 2 skilled workers if this proves not to be the case. This was the case in The Queen on the Application of De Vere Care v Secretary of State for the Home Department  EWHC 1312 (Admin), where a care home had advertised for public relations personnel (considered level 6 NVQ), when in fact these skilled workers were found to be working as carers (level 3 NVQ). The court found that the Home Office had acted lawfully in revoking the sponsor’s licence.
If you have a genuine vacancy for a skilled worker and have come to the conclusion that it cannot be filled by someone from the national workforce, your first step will therefore need to be to apply for a Sponsor Licence.
What are the exemptions to the Resident Labour Market Test (RLMT)?
As well as the shortage occupations list in Appendix K, there are a few other exemptions from the resident labour market test. You might not need to undertake the labour market test if you are looking to employ a migrant who is already in the UK and is applying to switch their post-study work status to a Tier 2 (General) visa.
Others who can be employed without applying the test include high earners (£159,600 or above), academics returning to posts after a period of academic leave, supernumerary research positions, postgraduate doctors and dentists in specialty training (paid for by a foreign government), and high value inward investment posts (where a migrant will be working in support of a posting from an overseas firm that is involved in the relocation of a high-value business to the UK).
What is the salary requirement for employing foreign workers?
Currently, the minimum salary you must offer a Tier 2 worker is £30,000 pa (increased on 6 April 2017 from £20,800). Tier 2 covers a broad range of employment categories, including a Tier 2 (Sportsperson) category for elite sports people who are internationally established at the highest level, as well as a Tier 2 (Minister of Religion) category for religious workers.
Tier 5 (temporary workers) is restricted to five categories. Tier 5 entrants may be granted leave to work for up to a year either as sports people, entertainers or creative artists, voluntary charity workers, religious workers, Government Authorised Exchange (for research and work experience / training programmes) or International Agreement (diplomatic staff and employees of other international organisations that enjoy certain privileges and immunities under UK or International law).
How to apply for a Tier 2 Sponsor Licence
- You must show that you are a genuine organisation operating legally in the UK.
- You must demonstrate that your organisation is trustworthy, knowing that its history, as well as key staff, owners and control systems will be investigated for any background of dishonesty or immigration crime.
- You must prove that your organisation has adequate internal processes, including HR processes, to carry out its sponsorship duties.
Once listed as a sponsor, you must comply with several duties as a sponsor which are duties imposed by the Home Office. These duties can include ensuring that you notify the Home Office if the Tier 2 worker you recruit does not turn up for work or is absent for a significant period. You are also required to keep records of the migrants you sponsor and update their records regularly. Additionally, you must accept Home Office compliance visits and limits on the number of licenses you can assign.
Failure to adhere to these duties will lead to your A-rating being reduced to a B-rating, which would come with a time-limited action plan setting out the steps needed to take to regain an A-rating or lose the licensealtogether.
This process requires careful and cautious navigation in order to succeed, and you would be well advised to seek legal assistance to ensure success.
Sponsors also need to bear in mind that the current immigration cost for each sponsor is £1000 per year, unless the organisation is deemed to be a small sponsor (with a turnover of £10.2 million, or less than 50 employees) in which case the charge will be £364. In the current “hostile environment” to foreign nationals seeking long-term life in the UK, these costs are set to escalate. The current Tory manifesto is pledging that this figure will be doubled - rising to £2000 - should Conservative leader Theresa May be returned to power after the general election in June 2017.
However, a report by the thinktank Global Future, published on 19 May, concluded that, whatever the latest political pronouncements in the run-up to next month’s election on cutting migrant numbers, the UK will continue to need an inflow of about 200,000 migrants a year (roughly what it has had since 2000) due to its low productivity, ageing population and a shortage of labour in vital institutions such as the National Health Service.
The report, backed by employers, criticised both Labour and the Conservatives for refusing to be honest with the British public about the level of migration that the UK requires. It warns that if the UK refuses to be flexible about its sources of labour, it could face a decade of slow growth similar to that of the Japanese economy.
It appears that the migrant “skilled” workforce is likely to continue being required in this country, regardless of the obstacles that the Home Office is at present placing in its path. Employers seeking maximum freedom of choice in their search for employees should therefore bear that in mind whilst considering candidates.
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Posted on: Thursday, 25 May, 2017