Impact of Changes to Immigration Rules for UK Employers.
Are you employing migrant skilled workers? Get ready for the New Points Based Immigration System.
We are sure, you must have come across the series of announcements made by the UK Government during 2020 on Changes to Immigration Rules from 01 January 2021. On 31 December 2020, the transition period for BREXIT ends and with that the Freedom of Movement will also end.
As per the Home Office published Register of Sponsors for Tier 2 and Tier 5 there were 31,976 employer sponsors registered on 11/11/2020 which increased to 32,037 on 18/11/2020. We expect this register to grow to around 50,000 employer sponsors by March 2021 when many more employers realise the need to register with the Home Office to employ migrant skilled workers.
If you are a UK business employing migrant workers, more likely than not there will be a direct impact on your business because of the changes to UK immigration rules and introduction of the New Points Based Immigration System from the beginning of 2021.
Here we try to answer the most important questions you may have as a UK employer.
Impact on UK Employers who sponsor and employ migrant workers.
If you are currently employing non-EEA migrants, you may already have a Sponsor License under Tier 2 and Tier 5 of current immigration rules. From 01 January 2021 your Sponsor License will be changed to allow you to sponsor Skilled Workers under the New Rules. You will not need to apply to the Home Office for this and it will be an automatic process.
The other major positive change is that you will not need to undertake Resident Labour Market Test, which means you do not need to advertise the job role or vacancy for at least one month and undertake a full recruitment process to demonstrate that no appropriate skilled candidates could be found locally in the UK. This change will save at least 4 to 8 weeks of time for the employers and save the costs of advertising the position on national job sites or industry publications. However, you may still need to advertise the jobs if you must fill in new vacancies within your business.
The other advantage is the removal of annual cap, which is applicable for Tier 2 General, which means the requirement of applying for Restricted CoS quota every month will not be necessary. The Skilled Worker Visa scheme also makes it possible to hire some one at RQF level 3 and 4 and there are lower salary thresholds for new entrants to the UK labour market and for the occupations on Shortage Occupation List.
Are you currently employing migrant workers under Tier 2 Intra Company Transfers (ICT)?
The new immigration rules coming into effect from 1st January 2021 will mean that those who are under Tier 2 Intra Company Transfer will be eligible to switch to Skilled Worker Visa within the UK. New immigration rules will also remove the cooling off period of 12 months as applicable now to Tier 2 ICT employees. While this is very good news for those in the UK under Tier 2 ICT, as an employer you may need to work out a strategy to retain those workers under ICT or try and help them switch into skilled worker visa, else they may switch to another employer. If you are only authorised to employ migrant workers under Tier 2 ICT, you should add Tier 2 General as soon as possible, before 31 December 2020. On 01 January 2021, the employers who are registered as sponsors under Tier 2 will be automatically registered as sponsors for skilled worker visas. We are seeing a sharp increase in demand for advice from employers on how to add Tier 2 General.
UK Employers, are you employing EEA Nationals as Employees?
While there may not be major impact on UK Employers employing non-EEA workers, the employers relying on EU migrant workers may feel major impact due to changes to the immigration rules. From 01 January 2021 the EEA nationals cannot come to the UK to live and work unless they have the sponsorship i.e. Certificate of Sponsorship (CoS) assigned to them in the same way as a non-EEA skilled worker.
EEA skilled workers will need to score 70 points to be eligible to apply to come to the UK, same as a non-EEA citizen. To score the 70 qualifying points they will require a job offer from a registered sponsor (20 points), must meet the required skills level for the skilled job (20 points), must be able to prove knowledge of English (10 points) and will need to meet the minimum salary threshold of £25,600 or above (20 points), in most cases.These 70 points are made up of 50 Mandatory Points and 20 Tradeable Points.
Impact on Charities who have been relying on Volunteers from the EU.
If you are a UK based registered charity employing volunteers from the EEA countries without having to apply for a Sponsor License, you will now need to apply for the same. The EEA nationals who have been coming to the UK without having to meet any of the above conditions, will now need to have a CoS assigned to them.
In short, all the employers will need to apply for sponsor licences in order to continue employing migrant workers from EEA and non-EU countries.
UK Employers should work out the CoS Quota Requirements
It takes time to request CoS quota and get approval for the same, so the UK employers will need to plan and prepare CoS quota requirements well in advance.
Employers must ensure that they make the sponsor license applications and submit requests for CoS allocations so that immigration applications are not unnecessarily delayed. If possible, you may think of getting the EEA candidates in the UK before the deadline of 31 December so that they can apply under EU Settlement. In some cases, for the non-EEA employees, the delays in creating and assigning CoS may mean the employees will be overstayer and it may break the continuous stay required to apply for the indefinite leave to remain and their qualifying period may be reset.
It is, therefore, very important that the employers review their sponsor licence and CoS allocation needs as soon as possible to make sure that their business does not suffer.
UK Employers must factor the in-country switching requirements
There are some visa categories which will allow the migrants to switch to Skilled Worker Route such as students who complete their studies will be eligible to switch as Skilled Worker the same way as those who will complete their unsponsored Graduate Route Visa.
Student dependants and also dependants of other work categories will allow migrants to switch within the UK and hence the employers should have CoS quota to assign the CoS to someone who may be eligible and wishes to switch as your employee.
Certifying the Maintenance or Financial Requirement by the Employer.
At this stage, it is not clear what will be the financial requirements (i.e, the requirement for maintenance fund under the present system) for the skilled worker, intra-company transfer and other work-related immigration categories; however, it is very likely that the new system will continue to have same provisions.
The employers should consider certifying the financial requirement i.e. maintenance requirement, if the employer is a 'A' rated sponsor.
Timeline to keep in mind for the UK Employers
UK employers need to note that sponsor licence applications can take approximately six to eight weeks to get the approval. After this approval, the process for requests for restricted CoS allocations currently may take up to 12 weeks. These timelines can be longer if the Home Office decides that a sponsor visit is required. The end to end process may also take longer if the overall consideration process is revised under the new system.
It should also be noted that Coronavirus disruptions mean there may be delays in approvals from the Home Office and in the visa processing for the Skilled Worker who is applying from abroad for the skilled worker visa.
Keeping all these factors in mind the employer needs to finalise the job start date and job end date when requesting the CoS as these dates cannot be changed and if the migrant worker is not able to reach the UK before the start date, there may be a requirement for an additional extension application going forward.
Cost of employing a non-EEA migrant
Employing a migrant worker also involves expenses and as per current fee levels the employers are required to pay following fees to the Home Office:
UKVI Sponsor License application fee: £536 for a small company – License validity – 4 years
UKVI Fee for Creating & Assigning CoS: £199 per CoS.
UKVI Fee for Immigration Skills Surcharge - £368 per person per year for a small company.
Immigration Compliance for UK Employers Employing Migrant Workers
In the end, it is worth mentioning that as a sponsor of a migrant skilled worker, you will have some responsibilities to monitor the expat workers and make sure you check their right to work on a periodic basis. If you have not been registered as a Sponsor under Tier 2 and Tier 5 earlier and are registering as a sponsor under the New Points Based Immigration System, you will need to factor in the time and expenses you will need to allocate for the compliance duties.Immigration Compliance advisory is highly demanded in the lead up to the upcoming changes and it would be wise to secure an advisor as soon as possible if you feel the need to get one.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.