Hiring EU workers – a guide for UK businesses

Until the first signs of spring and announcements over the easing of the UK COVID-19 lockdown, many UK businesses hadn’t turned their thoughts to recruitment and the immigration issues arising after the end of free movement for EU nationals. Everything had seemed too uncertain and speculative. Now, UK business owners are asking how they can hire their customary EU workforce for the summer season, whether that is for jobs in construction, jobs associated with hospitality or festival organisation or the other host of jobs that used to be easily filled by a readily available EU workforce. In this article, partner and head of the business immigration team at OTS Solicitors, Hans Sok Appadu, looks at how to hire EU workers after Brexit and the end of the transition period.

UK Immigration solicitors

For advice on hiring EU workers or help with any aspect of business immigration law call the immigration law team at OTS Solicitors on 0203 959 9123 or contact us online. Appointments are available by phone or video call.

The Brexit effects

Many UK businesses are thinking back to the days that they could advertise a job post and easily fill it through hiring EU workers, in the absence of a sufficient number of UK settled workers to fill their job vacancies. Whilst COVID-19 has had a tremendous financial impact on many UK firms and individual employees, it hasn’t created a UK workforce with the skills needed to fill the host of jobs traditionally filled by hiring EU workers. Retraining redundant UK workers and UK students to fill the jobs available to meet the UK skills shortage are laudable aims but they won't help UK businesses fill job vacancies this year with workers with the necessary skills to do the work required.

EU workers are now treated the same as any non-EEA migrant worker, gone is their free movement and automatic right to live and work in the UK. Just as EU workers face red tape and visa applications to enter the UK to work, UK employers now have to obtain a sponsor licence from the Home Office if they want to recruit either an EU national or a non-EEA worker.

UK sponsor licences for work visas

There are two types of Sponsor Licence that UK businesses can apply for:

• Tier 2 – work visas for long term Employment.
• Tier 5 – work visas for short term or temporary Employment.

Some UK firms may need to hire a combination of short-term and long-term workers. It is possible to apply for both types of Sponsor Licence. It is best to analyse the type of workers your business will need and discuss your Sponsor Licence requirements with a business immigration solicitor so you can assess the cost benefit ratio of applying for a sponsor licence, and the costs involved and benefits to be gained, especially if you are looking to hire temporary workers under a UK Sponsor Licence.

business immigration solicitors aren’t accountants or recruitment consultants, but they are there to help make sure that your Sponsor Licence plans are cost effective and the best route for your business.

The Tier 2 Sponsor Licence

Your business will need a Tier 2 or worker Sponsor Licence to recruit long-term workers from the EU or from non-EEA countries on the following types of work visa:

• Skilled worker visa.
• Intra-company visa.
• Specialist work visa , such as for elite sportspersons or ministers of religion.

The vast majority of long-term EU workers will be hired on the skilled worker visa but it is essential that your business understands the definition of ‘skill’ for the skilled worker visa and your recruitment requirements. Under a Sponsor Licence to hire workers on a skilled worker visa, your business can hire EU workers who are recruited to fill a skilled job at a skill level of RQF level 3 (this is the equivalent of UK A-level standard qualification or higher).

The Tier 5 temporary or short-term worker Sponsor Licence

The first thing that UK business owners need to appreciate is what the Home Office means by ‘temporary’ or short-term workers. If your business secures a sponsor licence to recruit temporary workers your recruits could remain in your employment for six months or up to two years , so ‘temporary’ doesn’t just cover a brief summer season.

There are six different types of temporary work visa, namely:

• The seasonal worker visa - for EU workers and other overseas workers coming to the UK to carry out agricultural work, such as fruit picking, for up to six months.
• The charity worker visa – for charity workers who must be unpaid. The visa lasts up to two years.
• The creative or sporting work visa – creatives or entertainers can apply for a temporary visa lasting up to two years whereas elite sportspersons can apply for a visa for up to one year.
• The religious work visa - the visa lasts up to two years.
• The government authorised exchange work visa - this route provides either a work experience visa for one year or a two-year work visa if you are entering the UK to carry out a research project or participate in training.
• The international agreement work visa - where a worker is entering the UK to carry out Employment under international law. One example of this is where a worker will be an employee of an overseas government.

How does a UK business get a Sponsor Licence to sponsor EU workers?

Firstly, if your business secures a Sponsor Licence, the Sponsor Licence won't specify the continent where the worker has to be employed from or any nationality requirement. Therefore, under both Tier 2 and 5 Sponsor Licence types, your company can recruit workers from either the EU or from non-EEA countries.

When your business asks an immigration solicitor to apply for a Sponsor Licence the business immigration lawyer will want to know:

• The type of Sponsor Licence required.
• Whether your business has previously held a Sponsor Licence and , if so, whether the Sponsor Licence was suspended or revoked.
• Whether any key personnel have committed any Immigration offences or other types of offences.
• The types of jobs that you require EU workers or sponsored workers to undertake.
• Confirmation that the jobs you will be recruiting EU workers for are ‘genuine’ jobs – in other words they are not ‘made up ‘jobs to help out friends or family who want to come to the UK and they are jobs at the required skill set, for example seasonal workers for a Tier 5 temporary work visa or ‘skilled’ for a skilled worker visa.

A business immigration solicitor will also want to carefully assess your business practices. That may seem an odd thing for an immigration lawyer to want to undertake but a business won't be successful in its sponsor licence application unless it either already has the correct HR procedures in place or invests time in making existing HR procedures compliant with the sponsor licence reporting and recording duties under a Sponsor Licence. For example, a UK business with a Sponsor Licence needs to have accurate HR systems in place so they can:

• Keep up to date records on hired EU staff and any other sponsored staff, such as identity documents, evidence of qualifications and completion of right to work checks.

• Report any changes in circumstances of hired EU workers or sponsored staff, for example, a change of address.
• Make sure that the sponsor management system is kept up to date by staff allocated as either level one or level two sponsor management system users.

Immigration solicitors warn that applicants for a Sponsor Licence can receive either a pre-Sponsor Licence audit or an audit once a Sponsor Licence has been granted. That’s why it is best to ensure that HR staff are fully conversant with the agreed procedures for the hire of EU workers and other sponsored staff.

UK Immigration solicitors

For advice on Sponsor Licence applications call the immigration lawyers at OTS Solicitors on 0203 959 9123 or contact us online.

Sponsoring temporary EU workers on short-term work visas

If you are looking to recruit workers on short-term visas to carry out temporary work you will need to first offer employment to specified workers and to assign each temporary worker with a certificate of sponsorship to enable them to apply for their Tier 5 visa .

For UK business owners looking to employ lower skilled staff, you may see the temporary Tier 5 sponsor licence and visa as your best way to recruit EU workers .That isn’t necessarily the case. For example, under the seasonal worker route the visa is only for six months and seasonal agricultural workers are clearly defined and limited to those working in ‘edible horticulture’. There is no general seasonal worker route, such as to cover the hospitality or construction industry who tend to need to increase worker numbers during the better UK weather.

In the creative visa category, there are also very specific rules which businesses need to consider. For example, to secure a creative temporary visa the EU recruit must be able to demonstrate that they will make a unique contribution to the UK labour market and there are salary requirements for some creatives.

Sponsoring EU workers on skilled worker visas

Many UK businesses question whether the skilled worker visa will meet their need to recruit lower skilled EU workers as their job vacancies, whilst skilled, aren’t highly skilled.

The skills required for a skilled worker visa aren’t as onerous as your business might think or understand from past experience or research into the old work visa , the Tier 2 (General) visa.

Prior to the introduction of the new points-based Immigration system any ‘skilled’ migrant workers needed to have an offer of a job with a UK employer at a skill level equivalent to RQF Level 6 (degree level in the UK). To qualify for a skilled worker visa, the job applicant needs to be filling a job that needs skills to the UK A-level standard.

Therefore, the skill level for the skilled worker visa has significantly reduced from the level required under the Tier 2 (General) visa. In addition, the individual isn’t actually required to have the equivalent of A-level qualifications. Instead, the business has to be able to demonstrate that it has genuine vacancies to the required skill level. An EU or a non-EEA worker can apply for the job and secure a skilled worker visa even if they don’t have formal qualifications but the company can evidence that the worker has the required work experience or expertise.

Immigration solicitors say its best to take some specialist sponsor licence advice to check that a Sponsor Licence to recruit EU workers under skilled worker visas is the best route for your business and that your planned job vacancies will amount to eligible skilled worker visa roles with a standard occupation rode applicable to the job.

The standard occupation codes are published by the Home Office. For example, the job of chef has a standard occupation code whereas a cook doesn’t have a code as it isn’t deemed as ‘skilled’ a job as a chef though your business may view the description of chef or cook as interchangeable.

In addition to the job needing to be sufficiently skilled, the salary has to meet the minimum salary threshold. There is no set rule for the minimum salary threshold as the minimum salary threshold will vary depending on whether the job applicant qualifies as a new entrant or if they have a relevant PhD qualification.

And finally

When your UK business is looking at its recruitment needs and hiring new EU workers it is important to look at your current EU employees and consider if any of them will need a work visa to continue in your Employment after the 30 June 2021 if they haven’t applied for settled status under the EU Settlement Scheme by the cut-off date. Many employers are encouraging existing EU staff to make their application as that is best for both employer and employee.

UK Immigration solicitors

For specialist advice on hiring EU workers or help with a sponsor licence application call the immigration law team at OTS Solicitors on 0203 959 9123 or contact us online. Appointments are available by phone or video call.