Immigration and employment law: an employer’s guide to visa applications and sponsorships

21 December 2020

Every employer wants the same thing: to recruit and retain the best calibre candidates who fall within their budget. And, in a globalised market, the parameters of the talent pool are broad. Quite rightly, business leaders look beyond their own shores to secure exceptional individuals and get the edge over the competition.

However, when the candidate you intend to hire is not a UK citizen, you need to be aware of the legal requirements to ensure you stay on the right side of the law. Of course, in a fast-changing legal landscape, compliance is rarely as simple as putting a tick in the box.

Every day, we help organisations to grow their teams by providing proactive advice and helping to establish future-proof immigration policies. To help you navigate the rules around immigration and employment law, we’ve put together the following guide to visas and sponsorships.

In this guide:

UK Immigration – Overview

The Points-based System – Explained

Hiring Permanent Workers from Outside the UK

Intra-Company Transfers

Hiring Temporary Workers from Outside the UK

Employer Responsibilities

Next steps

UK Immigration – Overview

With Brexit on the horizon, the onus is on employers to ensure compliance with immigration law. Deal or no deal, free movement will end from January 2021, and the UK has now made official its new points-based immigration system.  The new points-based immigration system went live on 1st December 2020.

The new system treats all migrants (including EU and non-EU citizens) equally: if they wish to work in the UK, they will need to apply for permission to do so in advance.

As the name implies, a points-based system assigns points to individuals coming to the UK for work who meet specific criteria. Those who accrue enough points will be awarded a visa and thus, entry to the country to work.

Fortunately, the new system does not apply to EU citizens living in the UK by 31st December 2020. They will have until 30th of June 2021 to make an application for either pre-settled or settled status under the EU Settlement Scheme.

To help with the transition, the UK government has stated that employers will be able to accept ID cards and passports of EU citizens as evidence of right to work until this date.

After this, employers intending to hire talent from abroad will need to adapt to the new system and prepare for what is the most substantial change to immigration law in modern British history.

The UK Points-based System – Explained

Historically, UK businesses were able to hire workers with EU passports from anywhere in the EU, EEA or Switzerland as long as they were paid the minimum wage or above. Under the new points-based system, applicants are separated into four visa routes. Generally, in order to be eligible for a visa in any of these routes, they must pass a points-based assessment.

From January 2021, employers looking to recruit talent from outside the UK – whether in the EU or further afield – will need to be a Home Office licensed sponsor. Only under this status will they be legally able to hire candidates external to the UK labour market.

Types of licence

As an employer, the type of Home Office licence you need to apply for will depend on whether the workers you wish to hire are on a permanent or temporary basis. Those workers with long-term job offers in an eligible skilled occupation are classed as ‘Skilled Worker’, while those who are being transferred by the overseas business they work for to perform a skilled role in the UK are classed as ‘Intra-Company Transfer’ and temporary workers simply fall under ‘Temporary Worker’. You can apply for a licence that covers either tier or all that apply.

Hiring permanent workers from outside the UK

If the perfect candidate resides outside of the UK and you wish to bring them onboard on a long-term, permanent basis with a Skilled Worker Visa, the role must meet the job suitability requirements with regards to skill level and rate of pay.

According to new requirements, the job offer must be for a position deemed under the Regulated Qualifications Framework (RQF) as level 3 and above, roughly equivalent to A-levels or Scottish Highers.

In addition to this, the candidate must speak English to an “acceptable standard” and the job offer must meet the minimum salary threshold. This is the higher of either:

  • the general salary threshold set by Her Majesty’s Government on advice of the independent Migration Advisory Committee at £25,600, or
  • the specific salary requirement for their occupation, known as the “going rate”.

In certain circumstances, sponsored workers may be paid less than the above amounts, depending on the tradeable points they are awarded.

Individuals who apply for a Skilled Worker Visa will require a total of 70 points – made up of 50 points scored through meeting mandatory criteria and a further 20 “tradeable” points.

Under the new rules, applicants will be able to exchange characteristics such as qualifications against salary to gain the right amount of points.

For example, if the salary on offer is lower than £25,600 but no lower than £20,480 and 80% of the “going rate” for the occupation code, you will still be able to hire an applicant if:

  • There is a shortage of skilled workers in this occupation nationally
  • The applicant has a PhD in a STEM subject relevant to the role

Inevitably, there are certain exceptions to some of the criteria for roles in healthcare, such as that their salary must be the higher of £20,480 per year, or the specific salary requirement for their occupation known as the “going rate”.

Employers can also hire candidates outside of the UK through the ‘Global Talent’ route. The Global Talent route is for people aged 18 or over in the field of science, engineering, humanities, medicine, digital technology or arts and culture who can show they have exceptional talent or exceptional promise.

This route requires applicants to be endorsed by a recognised UK body, approved by the Home Office, such as the Arts Council England for creative disciplines and Tech Nation for those with technical and business skills in the digital technology sector.

Once endorsed, applicants in this category will be given flexible permissions on how they engage with businesses, enabling them to be employed, self-employed, travel abroad for research purposes and change jobs without informing the Home Office.  There are no language or minimum salary requirements.

Intra-company Transfers

Employers seeking to hire talent to the UK branch of a global business from overseas branches will be able to do so via the Intra-Company Transfer visa route. They must also issue the applicant with a Certificate of Sponsorship.

Unlike the Skilled Worker route, there is no English language requirement.

To successfully apply for an Intra-Company Transfer visa, you must be able to show that there is common ownership or control of the overseas and UK business and the overseas business must first be added to the sponsor licence as a linked entity.

In most cases, the minimum UK salary will need to be the higher of £41,500 per year, or the specific salary requirement for their occupation known as the “going rate”.

An applicant on the Intra-Company Transfer route must:

(a) be currently working for the sponsor group overseas; and

(b) unless they are applying as a high earner (going to be paid £73,900 a year or more to work in the UK), they must have worked outside the UK for the sponsor group for 12 months.

It is possible to hire workers through this route who are being transferred by the business they work for overseas to undertake a role in the UK as part of a structured graduate training programme for up to one year, but they will need to have worked outside the UK for the sponsor group for a continuous period of at least 3 months immediately before the date of application.

The minimum salary for a graduate/trainee on an intra-company transfer is whichever is the higher of £23,000 per year, or the specific salary requirement for their occupation known as the “going rate.”

Hiring temporary workers from outside the UK

Recruiting talent on a temporary basis can be highly practical for plugging skills gaps in the completion of particular projects. Until Brexit, it was possible for businesses to hire talent from anywhere in the EU on a temporary contract. Under the new points-based system, you will need to apply for a Home Office licence that covers Temporary workers.

Temporary workers are split into six categories. These are:

  • Creative and Sporting
  • Charity Worker
  • Religious Worker
  • Seasonal Worker
  • Government Authorised Exchange
  • International Agreement (where the worker is an employee of an overseas government or international organisation or is doing a job covered under international law)

The Temporary Worker visa route also covers the youth mobility scheme which allows a person aged between 18 and 30, from participating countries and territories such as Australia Canada, New Zealand, Hong Kong and Japan, to live and work in the UK for up to 2 years without requiring a job offer.

Employer Responsibilities

Until June 30th, 2021, employers must still ensure compliance with current legislation by proactively checking a job applicant’s right to work during the recruitment process.

The law currently protects employers with a code of practice: as long as checks are carried out in accordance with the established code, the employer is protected against civil penalties. It’s worth noting that no protection will be available if you use a third party such as a recruitment agency to conduct right to work checks.

The penalties for employing someone illegally are severe, with a fine up to £20,000 per illegal worker for businesses who fail to carry out the proper checks. In some extreme cases, a criminal conviction and prison sentence of up to 5 years will be applied.

How to conduct right to work checks

Hiring talent from outside of the UK?

Conducting a right to work check before you employ them is critical in complying with the law and ensuring the applicant is legally allowed to work in the country. If you find that an applicant’s right to work is only applicable for a certain period of time (i.e., a year) and they intend to continue working for you, a time-limited statutory excuse applies and you must make sure to carry out another check before the expiry date of their leave comes to an end.

A right to work check is broken down into 3 basic steps as detailed below.

Obtain

Ask an applicant to provide documentation that proves their right to work. For an EU, EEA or Swiss citizen, a passport or national identity card (both in date) is sufficient until June 30th, 2021.

Check

Check that the documents provided are genuine and unchanged and belong to the person who provided them. You should also check that the dates for the applicant’s right to work have not expired, and that the dates of birth are the same across all documents.

If the applicant has different names across different documents, they should be able to provide supporting documentation of the name change e.g. a marriage or divorce certificate. If you hire a student, they should provide evidence of their study and term and vacation times.

Copy

Make copies of the documents and record the date that you conducted the right to work check. This will serve as evidence that the correct process was carried out, should an employee be found to be working illegally.

New immigration system from 1 January 2021

From the 1st of January 2021, the date of our exit from the European Union, employers hiring candidates from outside the UK must have a sponsor licence, and applicants entering the UK to work as from 1st January 2021 must have a visa in advance.

EU citizens, just as any foreign national, will need an offer of employment in writing in order to apply for a Skilled Worker visa.

You have a duty not to discriminate against EU, EEA or Swiss citizens. You cannot require them to show you their status under the EU Settlement Scheme until after 30th June 2021. Until this date, EU, EEA or Swiss job applicants can prove their right to work using their valid passport or national identity card.

Next Steps

The official government guidance states that businesses can apply for a Sponsor Licence now even if they don’t plan to use it yet or only plan to recruit secondary level educated workers once the new work visa rules come into force on the 1st of January 2021.

Should you need assistance on applying for a licence or further clarity on the upcoming changes to immigration law, get in touch with one of our specialist immigration lawyers.  At 360 Business Law, we work with organisations across the UK to set out best practice policies that enable seamless recruitment and robust compliance.

 

Nicola Wilkins | Immigration Counsel | 360 Business Law & 360 Law Services

Copyright © 2020 360 Business & Private Client Law Limited. All rights reserved.