Legal Guide: Key changes for employers looking to employ long term overseas workers in post-Brexit Britain

Key changes for employers looking to employ long term overseas workers in post-Brexit Britain

POSTED 17/02/21

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Mandie Sewa is a highly experienced Solicitor having worked in immigration, nationality, and human rights law for 20 years. Mandie summarises some of the key changes that will now affect many businesses looking to employ overseas workers in the UK.

Since December 1st, this year the Tier 2 route to employ overseas workers has been scrapped. In essence, the titles of the new routes remain the same, but for a few changes:

• Tier 2 is now called the ‘Skilled Worker’ route
• Tier 2 Intra-Company Transfer (ICT) has been changed from ICT Long Term Staff to simply ICT and the Graduate Trainee scheme is now just called ‘ICT Graduate Trainee.’

The new routes apply to:

• EEA nationals arriving in the UK after 11 pm on December 31st 2020
• Non-EEA nationals applying for a visa from overseas (entry clearance) on or after December 1st 2020

Employers with a current sponsor licence do not need to apply for a new one unless it is about to expire.

The new routes for sponsored overseas workers

There are now 4 main routes for sponsored overseas workers.

1. Skilled Worker – people who have a job offer in an eligible occupation* and meet the salary requirements set by the Home Office.
2. ICT – People who will be working in an eligible occupation* and meet the salary requirements set by the Home Office.** The ICT route is for established workers employed by an overseas business being transferred to work in the UK, e.g. to a UK branch. The ICT Graduate Trainee route is basically the same as ICT, but these individuals must also be employed as part of a structured graduate training programme.
3. Sportsperson – Elite sportspeople and qualified coaches who have an endorsement from a Sport Governing Body and contribute to developing their sport at the highest level in the UK.
4. Minister of Religion – People who have key leading roles within faith-based or religious organisations in the UK.

*Eligible occupation: This must usually be jobs skilled to A-level standard. This doesn’t mean the worker has to have A-levels or equivalent qualifications, but the work they do must be at that level. Eligible jobs are listed in Appendix Skilled Occupations of the Immigration Rules. The job must be on this list.**Salary requirements: The Immigration Rules and guidance state-certain levels of income depending on the role. The Certificate of Sponsorship will be refused if this is not met.

Sponsorship responsibilities

The new guidance explicitly states added duties under UK employment law, preventing illegal working and safeguarding children. There is an added responsibility for sponsors not to behave in a matter considered as ‘not conductive to the public good’. This has wide-reaching powers including:

• Encouraging hatred or inter-community division.
• Causing, justifying, or glorifying terrorism.
• Rejecting the rights of, or discriminating against, groups or individuals based on their sex, age, disability, gender reassignment, sexual orientation, marital or civil partnership status, race, or religion or belief (or lack of belief).

Employers need to be extra careful that they are not seen as promoting any of the above as their sponsor licence will almost certainly be removed or revoked.

Contract based workers

The new guidance does give more information for people working on a contract basis, e.g. the sponsor supplying labour to another UK organisation. However, the sponsoring organisation needs to have full responsibility for all duties, functions, and outcomes of the role for a specified time. This means each project must have a specified end date. We have had feedback from IT companies who have welcomed the move in principle, but in reality, many projects overrun or get delayed, so it’s often extremely hard to give a definitive end date.

Certificates of Sponsorship (CoS)

A valid CoS must be issued before a sponsored worker can apply for permission from the Home Office to work in the UK. There are still two types of CoS. These are now called ‘defined’ and ‘undefined’.

• A defined CoS is only for skilled workers applying for a visa from outside the UK. There is no annual allocation of defined CoS’s. An employer must apply for one each time it is required.
• An undefined CoS is for skilled workers applying for a visa from inside the UK and workers in all other categories applying for a visa whether inside or outside the UK. Undefined CoS’s must be assigned from an employer’s annual allocation.

Resident Labour Market Test (RLMT)

We were told the RLMT was a protectionist measure to protect the settled UK workforce by requiring employers to exhaust the resident labour market options before recruiting nationals from outside the EEA. Employers had place at least 2 adverts for the job to run for at least 28 days. Once they could show that there are not suitable settled applicants, and confirm the role was genuine, they could start the application process to hire workers from outside the UK.The RLMT was one of the more challenging requirements of hiring under the Points Based System. Many employers are pleased that this will no longer apply under the new system, and sponsors will be allowed to consider all candidates ‘equally’, regardless of their immigration status. Roles must not be created solely to assist migrants in entering the UK. The genuine vacancy, skills and salary thresholds still apply.

Immigration Skills Charge (ISC)

The ISC is a fee payable by employers each time they sponsor an overseas worker. It was introduced on April 6th 2017 to address the domestic skills gap. Money raised from the ISC is directed to the Department of Education to support investment in developing skills and training and addressing the skills gap in the UK’s domestic labour market.Under the new system, more businesses will be liable for the charge. It may have to be paid when a CoS is assigned under the Skilled Worker or ICT routes unless an exemption applies. The charges vary from £182 to £1,000.

How can we help?

We have summarised some of the key changes that now affect many businesses looking to employ overseas workers in the UK. Our expert solicitors can help you with every stage of this journey from considering whether you need a sponsor licence to applying for and extending visas for your workers.If you have any questions please contact Maddie Sewa at Setfords.This note is not intended to substitute legal advice from your instructed lawyer. You should always consult with your lawyer directly regarding any specific queries you may have.