Get ready if you want to employ skilled staff from abroad

Maria Fernandes Tuesday 09th March 2021 06:11 EST

Following Brexit, the new points-based system came into operation for skilled workers. A number of sweeping changes were made but went largely unnoticed because of the impact of the pandemic. The lowering of the skill level immediately opens up a number of positions within several industries, the ending of the need to carry out local labour searches means that an employer can now select the best person for the job, not the most suitable which had been the policy for many decades.

In order to employ non settled workers, an employer must obtain a sponsorship licence to do so. The licence comes with a number of responsibilities which remain a continuing duty during the life of the licence. Compliance is managed through an electronic system called the Sponsor Management System.

Before making the application the employer will need to consider whether there are adequate systems in place to:

  • Check the status of the proposed employee and monitor this.
  • Maintain records of relevant documents for each employee, including passport and right to work information
  • Track and record employees’ attendance
  • Keep employee contact details up to date
  • Report any non compliance with the conditions of the employee’s via the management system for example if your employee stops coming to work.

In order to apply for a licence it is necessary to appoint key officers although one person can occupy all the roles. Those who cannot be appointed as officers include those who have:

  • An unspent criminal conviction
  • Are subject to a bankruptcy restriction order or undertaking, or a debt relief restriction order or undertaking
  • Have incurred a civil penalty in the past 12 months
  • Been a ‘key person’ at a sponsor that had its licence revoked in the last 12 months
  • Failed to pay VAT or other excise duty
  • Their behaviour currently or in the past considered to be “not conducive to the public good”

Once an application is lodged a number of checks are conducted and this may include a visit from the Sponsor Compliance Team which can take place before the grant of the licence and can be announced or unannounced. Visits were suspended during the pandemic but are likely to resume.

If an application is refused, there is no formal process of review unless there is a casework error. It is possible to apply again and in some circumstances there is a cooling off period before an application can be made again.

Once the licence is granted the next stage is to assign Certificates of Sponsorship. There are 2 types of Certificates of Sponsorship which follow different processes. A Defined Certificate is for Tier 2 applicants coming from abroad and Undefined Certificates are for those already in the UK and workers in other routes whether in the UK or abroad. It is important for a sponsor to select the most appropriate route.

There are specific Codes of Practice which set job descriptions and minimum salaries and these must be strictly adhered to. A person must be paid either the “going rate” or the minimum of £26500 whichever is higher. There are a number of circumstances, for example for new entrants when the rate paid can be lower.

Although the regulations have been relaxed in a number of ways, with the ending of some restrictions, the Home Office will focus on whether a position is genuine or not.

A genuine vacancy is one is defined as one which:

  • requires the jobholder to perform the specific duties and responsibilities for the job and meets all of the requirements of the relevant route
  • does not include dissimilar and/or predominantly lower-skilled duties
  • is appropriate to the business in light of its business model, business plan and scale

The guidance gives examples of vacancies that are not considered to be genuine. This includes one which contains an exaggerated or incorrect job description to deliberately make it appear to meet the requirements of the route when it does not, or is otherwise a sham or it is a job or role that was created primarily to enable an overseas national to come to, or stay in the UK. The Sponsor Licencing Team applied these reasons liberally during the previous system and it is likely that this will continue to be the practice.

Despite the challenges, for the first time in years immigration policy is not driven by numbers. It remains to be seen how it will be operated in reality. It is hoped that the route will be equally available to all countries.

(If you have any questions for Maria, please email us at [email protected])

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