An Immigration Law Guide to Employing Non-EU Citizens

Following on from our recent post entitled, “A Step by Step Guide for Employers Wanting to Obtain a Sponsorship Licence”, this article contains a step by step guide as to how to actually recruit a worker or workers from outside the EEA. Although you may have the right to issue a Certificate of Sponsorship (CoS), there are still criteria to be met regarding the position you are recruiting for and surrounding the person you hope to employee, before they will be able to join your team here in the UK.

Please note that this article is meant to be a guide only. To receive legal advice regarding recruiting workers from overseas, please phone our London office on 0207 936 9960 to talk to one of our Immigration solicitors.

Step One – Establish if the Position you Have Available is on the Shortage Occupation List

Not every job can be filled by workers from outside the EEA. To automatically be able to seek workers from abroad to fill your staff vacancies, the position you are recruiting for needs to appear on the Tier 2 Occupation Shortage List.

Professions which appear on the list are further broken down into specific jobs pertaining to that profession. For example, the professions of ‘business analysts, architects and system designers’ appear on the list; however, to be eligible to recruit a worker from overseas, the jobs available can only be in the fields of ‘systems engineer in visual effects and 2D/3D computer animation for the film, television or video games sectors’ or ‘data scientist employed by a qualifying company, where the job requires a person with a minimum of five years’ relevant experience and demonstrable experience of having led a team’.

Step Two – Advertise the Position in the UK (if it is not on the Shortage Occupations List)

In what is known as a ‘Residential Labour Market Test’, you are required to advertise the position you have available within the UK, before you seek to recruit a foreign worker on a Tier 2 visa. To advertise the position in compliance with the Tier 2 Sponsorship rules, you need to ensure you take the following actions:

• Place two adverts within acceptable publications or by acceptable methods. For example, advertising in a national newspaper or trade journal, or using a recruitment agency. With many jobs it will be mandatory to advertise the position online using the Jobcentre Plus Universal Jobmatch service.
• Advertise the position in two stages, with both stages being no less than seven days, so the total time the position is advertised for is 28 calendar days.
• The advertisement must contain relevant information pertaining to the position, such as the job title, experience and qualifications required and salary.

Before you can apply to sponsor a foreign worker, you must provide evidence that you could not find a suitable worker via the Residential Labour Market Test.

Step Three – Make Sure you Provide the Right Salary and Conditions

In order to protect foreign workers from exploitation, the Government has stipulated minimum salary starting rates, listed beside each occupation on the Shortage Occupation List. If you are sponsoring a migrant worker for a job contained on this list, they must also receive at least 30 hours work per week.

From April 2016, most immigrants residing in the UK on a Tier 2 visa will be required to earn a minimum of £35,000 to qualify for Indefinite Leave to Remain in the UK. Therefore, when employers consider investing in seeking out, recruiting and training an employee from outside the EEA, they must think strategically and long-term when setting wages and conditions. It most cases, it would not make good commercial sense to have an employee sent home after five years, taking all their expertise and experience with them, simply because they were unable to meet the income requirements needed to stay in the country.

Step Four – Request the Certificates of Sponsorship (CoS)

There are two types of CoS, restricted and unrestricted, and as an employer, you will need to make a decision as to which one you require.

Restricted CoS

Only a certain number of restricted CoS are issued every month. You must a apply for a restricted CoS if:

• the worker or workers you require are currently overseas and you will be paying them less than £155,300 per year; or
• the applicants are family members of Tier 4 (temporary workers)

Unrestricted CoS

If the position you have available requires an unrestricted CoS, you can apply to the UK Border Agency for as many as you need. Situations where you would require an unrestricted CoS include:

• inter-company transfers
• Tier 2 migrants extending their stay with their original employer
• where the salary for the position is in excess of £150,000

Step Five – Ensure you Meet Your Sponsorship Obligations

To maintain an A-rated Sponsorship Licence, you are required to meet a number of obligations. These include such things as:

• checking that any migrant workers you recruit have the necessary skills, experience and qualifications to do the job required of them
• monitor your employee’s Immigration status
• keep the employee’s contact details up to date
• report to the authorities if your employee ‘disappears’
• keep documentation so you can provide evidence that all of the above obligations are being met

When recruiting workers from outside the EEA, it is imperative to seek experienced legal advice from the outset, to ensure you are compliant with all the relevant regulations and you meet your ongoing obligations as a sponsor. OTS Solicitors is one of the most well-respected Employment and Immigration law firms in London. By making an appointment with one of our Immigration or employment solicitors, you can be assured of receiving some of the best Immigration legal advice available in the UK.

To make an appointment, please phone our London office on 0203 959 9123.