Many businesses have been understandably concerned with their ability to meet their staffing requirements after Brexit, as many sectors are currently highly reliant on workers from EEA. This is particularly the case for those who operate in the research, technology, finance, architectural and engineering sectors. The Home Office has long promised to address these issues and had even issued a White Paper on Immigration in December last year indicating the changes it was proposing.
Earlier this month, a Statement of Change for Immigration Rules was published and as part of that, the Home Office unveiled the amended list of Shortage Occupations.
First, let’s have a look at what is Shortage Occupation list. According to the current laws in place, for an employer to hire an overseas migrant, they need to demonstrate, among other requirements, that they have attempted to hire locally and have failed. In short, the job needs to be offered first to the British citizens, those with Indefinite Leave to Remain and for now to the EEA nationals. To demonstrate that the UK business wishing to hire from overseas has achieved this, they are required to carry an exercise that is known as Resident Labour Market Test. For the jobs that are on the Shortage Occupation List, this exercise is not required. This is because the presumption is that hiring locally is going to be a considerably difficult and onerous process.
Another important point in respect of the Shortage Occupation List is that jobs found on this list can be sponsored regardless of the qualification level. Tier 2 route is specifically designed for high skill migration. Therefore, for there are only very limited amount of jobs that are below the NQF6 level that can be sponsored via this route. However, the Shortage Occupation list does not have the same limitations. All the jobs on this list can be sponsored for the purposes of the Tier 2 route.
With the amendments to the Shortage Occupation list, the biggest winners are the industries heavily reliant on Engineering and IT skills. Large number of occupations which are reliant on such skills have been recognised as shortage occupation without any limitations.
Architects and industries reliant on Architectural skills are another big winner of the changes, as the profession is recognised as shortage occupation. This is an important step in addressing the concerns within the industry, as it is one of the spheres that is heavily relying on the free movement within the EU to source its talent.
Large number of professions within the health industry have been recognised as a shortage as well, which should ease the recruitment process of the overseas personal.
Another important change targets the food industry. This industry has long been championing for better and faster access to specialist chefs. While the previous versions of the Shortage Occupation list had the Specialist Chef as a shortage, there were considerable limitations to it, one of which was the exclusion of the venues that had take-away service as part of their business. This has hampered most of the high-street restaurants from accessing the required skills and often made it difficult for them to develop and expend further. The new List that will come in force on 6th October, has eliminated that exclusion, which means that starting from early next month, many businesses within the food industry will be able to finally use the Tier 2 route to fill in the gap in their staff.
The expansion of Shortage Occupation means that the businesses that are using these skills can now be more competitive and hire the best talent a lot quicker, without having to plan ahead, going through the stage of national recruitment first and only after that look abroad. Such lengthy processes often crippled the entire business.
While the above is a very welcoming change to many within these particular industries, it cannot be missed that the industries reliant on the lower skilled labour continue to remain in a very difficult and even dangerous position. It is unfortunate that the concerns of these industries have not yet been addressed. In particular the hospitality, the manufacturing and agricultural sectors are extremely vulnerable to the closing down of the access to the EU worker market and their needs need to be addressed urgently. It has to be mentioned that there are discussions in this respect, and we hope to see some concrete solutions soon.
It is to be noted that the rest of the requirements in respect of hiring an overseas employee remain the same and there are no special dispensations for the companies that hire to fill in a position that falls under shortage occupation.
What are the requirements for hiring an overseas migrant?
You will be able to offer sponsorship to an overseas migrant, irrespective of the fact that the occupation you look to hire on is recognised as a shortage, only if you are a holder of an A rated Sponsor Licence. Therefore, if you do not hold the Licence, you will need to apply for one.
To be considered eligible for a Tier 2 or 5 Sponsor Licence, you will need to show that you are:
- a genuine business operating within the UK
- Able to discharge your sponsorship duties
- Are dependable and reliable, and does not present any threat to UK immigration control
- Hold all the relevant permissions to operate within your sector. For instance, in respect of the food industry mentioned above, this would be the appropriate food safety certificates and registration with a relevant food authority.
Once you secure the Sponsorship Licence, you will need to offer a sponsorship to the migrant worker nominally, by applying for and assigning a Certificate of Sponsorship to them. There are two types of Certificates, a Restricted Certificate of sponsorship and an Unrestricted one and it will depend on the Migrant’s circumstances, the sector the job is in and the salary to determine the right type that should be issued. You are not allowed to assign one instead of the other and sanctions, including revoking your Licence may apply if you issue the incorrect type of Certificate to your migrant worker. It is therefore imperative that you have the guidance of the best immigration lawyers specialising in Sponsorship Licence and Tier 2 visas.
Finally, you will have to ensure that the migrant is being paid the appropriate salary. The Appendix J and Appendix K of immigration rules that contain the SoC codes for the occupations capable of being sponsored under Tier 2 route, also contain the minimum amount of salaries that you are expected to pay for each occupation. However, a general minimum salary threshold of £30,000 per annum also applies and no overseas worker can be hired on a salary less then that, unless special exemptions apply.
What other aspects should be considered by Licence holder?
If you are already a sponsor, ensuring that you keep complying with your duties remains a key concern. Do not assume that simply because the jobs that you have filled with migrants are recognised as shortage, you will have any leniency from the Home Office.
You will still be expected to meet all your record keeping duties, as well as your reporting duties.
The record keeping duties mainly revolve around keeping clear records of the migrant’s details, their attendance and ensuring their right to work limits are not exceeded.
The recording duties, in principal refer to the migrant’s work attendance, change of their circumstances in relation to the employment, as well as change of circumstances in respect of the Sponsoring business.
Record keeping and the reporting duties can be quite daunting and Sponsors often fall short of keeping up to date with those. Unfortunately, often by the time the shortcomings are discovered it is too late, as they are revealed at a Home Office inspection. For this reason, the top immigration lawyers advise that your company carries out compliance audits at least once a year, to ensure you are continuously compliant with your duties.