Migrant Workers in the UK Construction Industry

Posted onSeptember 3, 2021

Britain is back building again with the easing of COVID-19 related restrictions but 2021 is proving a tough year for the UK construction industry. That’s not just because of the financial ramifications of the global pandemic but because of the availability of skilled migrant workers to fill construction jobs and the availability of work permits for construction workers.

UK Immigration and Employment Solicitors

For specialist advice on hiring EU construction workers or making a sponsor licence application call the immigration law team at OTS Solicitors on 0203 959 9123 or contact us online.

The construction industry workforce issues

You would think from reading UK newspapers that there is an available supply of skilled UK workers able to start employment for UK construction companies that sponsor Tier2 visa (Skilled Worker). If only that were true. Whilst many in the hospitality industry have sadly lost their jobs in the pandemic that doesn’t mean that they can realistically start skilled work this year on a construction site. Whilst there is also a need for unskilled labour on construction sites, those who have lost their jobs in hospitality or marketing are perhaps more likely to choose other types of work where their skills are transferable.

If the worker shortage in the construction industry hasn’t hit your construction firm yet then it will if:

You employ EU nationals as they won't be able to continue to work for you unless they apply for settled status under the EU Settlement Scheme. The cut-off date for applications is the 30 June 2021.
Your existing UK employees or overseas workers are tempted to leave your employment and work for a competitor firm offering better pay or conditions.
You need to recruit additional skilled workers as you won't be able to recruit from the EU unless you secure a sponsor licence from the Home Office and sponsor any EU or non-EEA workers on skilled worker visas. Only EU citizens who moved to the UK before the end of the transition period on the 31 December 2020 don’t need a visa.
You need to recruit extra unskilled workers and labourers to fill new contracts or meet deadlines. That’s because EU workers arriving in the UK after the 31 December 2020 need a work visa to work in the UK and there is no unskilled visa route in the UK points-based immigration system.

The combination of:

The end of the Brexit transition period plus
The cut-off date for settled status applications and
The lack of work visa for construction unskilled or lower skilled migrants

Is a triple blow to construction industry executives and HR directors.

The bottom line is that without the workers you need, your company could face missing contractual deadlines or not meeting forecasted profit margins because of increased overheads and being unable to tender for new work without the necessary skilled and unskilled workers.

Immigration solicitors say that there are things that construction firms can do to minimise the fall-out from Brexit on their company.

Be proactive about the EU Settlement Scheme

Some construction industry employers think that whether their EU workers apply for settled status under the EU Settlement Scheme is wholly a matter for the individual worker. Whilst they are right, it is up to the individual to decide whether they want to apply for settled status, nonetheless employers can make it easier for EU skilled migrant workers to apply for settled status.

Some HR directors assume that all EU workers know they need to apply for settled status, the deadline to do so and how to go about it. Sadly, many EU workers haven’t applied for settled status because:

They don’t think they need to do so.
They aren’t aware of the deadline to make a EU Settlement Scheme application.
They don’t know how to go about making an application or they are worried that their application will be rejected because of a previous conviction or because they are concerned that they don’t have the paperworkto prove that they have lived in the UK for the past five years or to show that they arrived in the UK before the 31 December 2020.
They think it is easier to leave the UK and pick up work in an EU country where they don’t have to register for settled status.
They are worried that whilst they may meet the eligibility criteria for settled status or pre-settled status, their family won't be able to join them in the UK because of Brexit.

Immigration solicitors can normally reassure EU nationals about many of the above concerns and provide a same day EU Settlement Scheme application process to make the application as straightforward as possible and hassle free.

Be aware of the consequences of not being proactive

If your construction company employs EU nationals who don’t apply for pre-settled status or settled status under the EU Settlement Scheme by the deadline of the 30 June 2021 ( and the workers don’t have any other right to live and work in the UK) then your EU workers won't be able to stay in the UK and importantly won't have the right to work.

If a company employs a worker who doesn’t have the right to work in the UK, then they are in breach of illegal workinglegislation. This can not only have financial consequences for the firm, with the imposition of penalties and fines, but can also cause reputational damage.

Alternatives to EU workers and the Settlement Scheme

If an EU national wasn’t living in the UK by the 31 December 2020 they can't apply for settled status . That means the flow of EU construction workers has already dried up unless skilled migrant workers from the EU comply with the same immigration rules as non-EEA workers and apply for work visas.

Under the points-based immigration system, introduced in January 2021, the most common work visa is the skilled worker visa.Most construction bosses think that construction workers won't meet the skills eligibility criteria for a skilled worker visa but many workers will do so because:

Unlike the Tier 2 (General) visa, a skilled migrant worker doesn’t need a job that is at degree level – the skill level for the skilled worker visa is the equivalent of A level standard.
The specific worker doesn’t need an A level or an equivalent formal qualification to meet the visa skills criteria as the crucial point is that the job on offer must be at that skill level.

However, before a construction company can recruit either an EU national or a worker from a non-EEA country on a skilled worker visa, the company needs a sponsor licence.

If your company already has a sponsor licence, as you used to recruit non-EEA workers on Tier 2 (General) visas before the introduction of the points-based immigration system, the firm doesn’t need to apply for a new sponsor licence. The existing sponsor licence can be used to recruit skilled worker visa applicants until expiry of the sponsor licence. Unless the sponsor licence is renewed the company won't be able to continue to employ skilled migrant workers on work visas.

If your construction firm historically recruited workers from the EU to avoid the hassle and red tape of recruiting from non-EEA countries then this will no longer be possible as the new points-based immigration system now applies equally to EU workers who entered the UK after the 31 December 2020 and non-EEA nationals.

Applying for your first sponsor licence isn’t as difficult or as time consuming as you might think and it isn’t too late to apply for your sponsor licence now so that you can recruit EU workers for construction sites this year .

Can construction firms hand over the problem to sub-contractors?

If your construction company relies heavily on sub-contractors and their employees you can't wipe your hands of the immigration issues relating to EU workers and the right to work in the post-Brexit era.

It is understandable that you may assume that if a skilled migrant worker is employed by a sub-contractor that it is the job of the sub-contractor to make sure that their workers have secured settled status or have a skilled worker visa and the right to work in the UK. However, if your sub-contractor hasn’t followed the correct procedures then it could mean:

The employees of the sub-contractor don’t have the right to work in the UK resulting in your sub-contractor not fulfilling agreed contractual deadlines. Whilst you may be able to sue them, will the sub-contractor have the money to pay damages to your company?
If your sub-contractor doesn’t comply with their commercial contract then your construction firm may not be able to find an alternative contractor and therefore may be unable to meet the construction completion date and be in breach of main contract.
The Home Office could say that there is an implied employment relationship between your construction company and the overseas worker who is working in the UK without the legal right to do so. That means the company could be in breach of the right to work rules and face fines.
The Home Office has the power to close down a construction site for forty-eight hours if they believe illegal working is taking place at the site. Even if the workers are supplied by a sub-contractor this could affect the site. Whilst you may think that the sub-contractor would be liable to your firm, their insurance cover is unlikely to cover them being in breach for illegal working practices and the sub-contractor may not have the funds to pay damages.

Construction companies therefore can't hand over the post Brexit employment and immigration issues to their sub-contractors but they can minimise their risks if using sub-contractors. For example, the contract can say that the sub-contractor is required to hold records of employees' right to work and that copies should be produced on request.

UK Immigration and Employment Solicitors

For proactive legal advice on hiring EU workers or to make 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.