Can my business recruit overseas workers?

The question ‘Can my business recruit overseas workers?’ is a complicated one for immigration solicitors to answer whilst the UK is in the Brexit transition period until 11 pm on the 31 December 2020. However, it is a question that needs answering now for UK business owners trying to work out their recruitment options and whether their business can recruit overseas workers now or in the future.

UK business immigration solicitors

If you are in business in the UK then you will need business, Immigration and employment law advice. Our specialist team of business immigration solicitors can meet your needs whether you are a start-up business or a well-established company. For information on how Brexit may affect your business and your ability to recruit from overseas the UK immigration solicitors can answer your questions. Call the immigration lawyers at OTS Solicitors on 0203 959 9123 or contact us here. Appointments are available through video conferencing, Skype or by telephone appointment.

What are the current rules on employing overseas workers?

At the moment if you are a UK business the rules on whether you can employ an overseas worker depend on the nationality of your proposed employee.

If your proposed new employee is an EU citizen then under the free movement of EU national rules the EU national won't be subject to Immigration control and they therefore don’t need a visa to work in the UK. In addition your business doesn’t need a Home Office issued sponsor licence to employ an EU national. However, as with any employee, you do need to conduct right to work checks to comply with illegal working legislation.

If your business plans to recruit a worker from a non-EEA country then the individual will need a visa that either allows them to work in the UK as part of the visa conditions or a work visa. If the non-EEA national requires a Tier 2 (General) visa then you will only be able to employ them if you have a Home Office issued Sponsor Licence and can sponsor their Employment.

Recruiting overseas workers is complicated because your planned new recruit may be from a non-EEA country but may be settled in the UK. That means that whilst they may retain the nationality of their non-EEA country they may no longer be subject to Immigration control or require a work visa to work in the UK because they have secured Indefinite Leave to Remain.

How will Brexit affect my business recruiting EU workers?

Brexit has happened and the UK is currently in the transition phase. That phase ends on the 31 December 2020. Until the end of the transition phase your business can continue to recruit overseas workers from EU countries without the EU nationals needing a visa or your business needing a sponsor licence to sponsor their Employment.

After the end of the transition period your business will only be able to recruit EU nationals if:

• The EU national has either permanent residence or settled status or pre-settled status under the EU Settlement Scheme or
• The EU national moved to live in the UK before the 31 December 2020. If the EU national wants to continue to work in the UK free of Immigration control and without a visa then they will need to apply for settled status or pre-settled status under the EU Settlement Scheme by the cut-off date of June 2021
• If the EU national came to work in the UK after the 31 December 2020 then they will need a visa to work in the UK. If they need a work visa you will only be able to employ them if you secure a Home Office Sponsor Licence.

The Immigration Rules on recruiting and employing non-EEA nationals remain the same until January 2021 when the government plans to introduce a new points based Immigration system that will apply equally to non-EEA nationals and EU citizens who enter the UK after the 31 December 2020 or EU nationals who entered the UK before the 31 December 2020 but didn’t apply for settled status or pre-settled status before the June 2021 cut-off date.

Does my business need a Sponsor Licence?

If your business doesn’t have a sponsor licence to enable you to sponsor overseas workers then after the end of free movement on the 31 December 2020 your business will be limited to recruiting from a pool of:

• British citizens
• Those with settled status in the UK such as people with Indefinite Leave to Remain or settled status or pre-settled status under the EU Settlement Scheme
• Overseas nationals who have a visa that allows them to work in the UK without requiring an employer to sponsor them under a Home Office issued Sponsor Licence and work visa.

Therefore, if your business doesn’t already have a Sponsor Licence or if you don’t apply for one, your recruitment pool will be far more limited than businesses that invest in a Sponsor Licence.

You may think that with the financial impact of Covid-19 and the anticipated UK redundancies and rise in unEmployment figure that your business doesn’t need a sponsor licence as it will have sufficient numbers of job applicants who are free of Immigration control. However, your business will need to consider whether those potential job candidates have the necessary skills to do the advertised job and if not whether training would mean that they could undertake the job role without your business needing to employ a worker with the specialist skills or experience.

What happens if you aren’t sure your business needs a Sponsor Licence?

Many small businesses aren’t sure about their recruitment plans and think that the best option is to put off applying for a sponsor licence until they know that they can't recruit a suitable job candidate from the UK job pool and therefore need to look to recruit from overseas.

If your business leaves applying for a Sponsor Licence until you know that you need to recruit an overseas worker then your recruitment plans could be significantly delayed. That is because it can take time to secure your first Sponsor Licence. Although, in some cases, UK immigration solicitors have in the past been able to secure a Sponsor Licence for a business within a matter of days it is anticipated that after the end of the transition period and the surge in Sponsor Licence applications by UK businesses there will be delays in the Home Office processing new Sponsor Licence applications.

Immigration solicitors say that it is best to apply for your Sponsor Licence now, before the end of the Brexit transition period, so that you are ready and able to hire an overseas worker should you need to do so. That is because normally time is of the essence if you need to replace a key member of staff with a specialist skill set. The Home Office allow businesses to apply for a sponsor licence without requesting the allocation of a specified number of Sponsor Licence certificates as it is understood that businesses want to be ‘Brexit ready’ and may have uncertain or fluid recruitment plans.

How can my business apply for a Sponsor Licence?

The application for a Sponsor Licence is made online but must be supported by documents demonstrating that the business is genuine and is trading in the UK and that the business has key members of staff appointed who will be able to operate the sponsor licence management system and comply with Sponsor Licence reporting and recording duties.

If your business is applying for its first sponsor licence then it is best to take expert legal advice from specialist Sponsor Licence solicitors and to consider the option of getting your Sponsor Licence solicitors to manage your Sponsor Licence for you so that they take away the hassle of completing the Sponsor Licence management function. That can be especially helpful if your business doesn’t have a large HR team or you think that it would not be cost effective to recruit an additional staff member to oversee the sponsor licence management because of the small to medium size of your business.

What can my business do to get ready for Brexit?

There are lots of things that all UK businesses can be doing to get ready for Brexit, the end of free movement of EU nationals and the introduction of the new UK points based Immigration system. Business immigration solicitorsrecommend that you:

• Review your workforce and your short to medium term recruitment and expansion plans
• If you already employ EU workers check if they have already applied for settled status or pre-settled status as if they don’t meet the June 2021 cut-off date you won't be able to continue to employ them without a Sponsor Licence
• Consider your training programmes for new and existing employees if you are going to be restricted to employing only British or settled workers after the 1 January 2021 because you don’t plan on applying for a Sponsor Licence
• Apply for a Home Office Sponsor Licence so there is no impediment to your sponsoring overseas workers to grow your business.

How can OTS Solicitors help?

Whatever the size of your UK business now is the time to take expert legal advice on the impact of the end of free movement and the introduction of the new points based Immigration system on your business to ensure your business is ready for January 2021.

UK business immigration and Sponsor Licence solicitors

OTS Solicitors specialise in business immigration and employment law and are recommended in two leading law directories, The Legal 500 and Chambers Guide to the Legal Profession.

The expert lawyers provide specialist employment law and immigration advice for UK business owners requiring help with how to recruit overseas workers at a time of change for the UK and a new approach to Immigration law with the introduction of the points based Immigration system.

For expert immigration and employment law advice that you can trust, call OTS Solicitors on 0203 959 9123 or contact us here. Appointments are available through video conferencing, Skype or by telephone appointment.