Employment

We know that eligible EU workers in the UK before 31 December 2020 will have the opportunity to apply for settled status or pre-settled status by no later than 30 June 2021.  This will give them, amongst other things, the right to remain indefinitely in the UK and work here. Pilot EU settlement schemes are being rolled out this month for those employed in the higher education, health and social care sectors: read more here.

But what about EU nationals wanting to come and work in the UK after December 2020?

According to current government plans, preferential treatment for EU workers is set to end (see our earlier blog, What will the UK’s future immigration system look like?). They may be subject to a points-based visa system similar to that which currently applies to workers from outside the EEA. In practice, this would mean that employers who have previously relied on bringing in talent from Europe, and envisage having to continue doing so post-Brexit, will need visa sponsorship licences.

Tier 2 sponsorship

The main route for entering the UK for skilled migrant non-EEA workers is Tier 2 sponsorship. Workers usually need to be paid at least £30,000 per year or ‘the appropriate rate’ for the job which they have been offered. Occupations for which there is a shortage of domestic supply will generally have a lower income threshold. In addition to the earnings threshold, migrants must, amongst other things, hold a valid certificate of sponsorship (see below); prove their knowledge of English; and have sufficient personal savings (£945 in their bank account for 90 days before they apply).

What is a sponsorship licence?

Currently, employers wishing to employ non-EEA migrants are required to hold a sponsorship licence for the relevant tier. Usually migrants must be sponsored before they come to the UK to work.

The sponsorship process is operated via the online sponsorship management system (SMS). Employers have to demonstrate (with supporting documentation) that:

  • They are a genuine business operating for a legitimate purpose;
  • Key people named on the sponsor application do not have unspent criminal convictions for immigration offences or other crimes such as fraud and money laundering;
  • They do not have a previous history of failing to carry out sponsorship duties; and
  • They have appropriate HR systems in place to monitor sponsored employees.

A licence is valid for four years; although it can be lost if an employer does not meet its responsibilities as a sponsor. Employers will be asked to estimate how many visas they will require.

Applying for a sponsorship licence can be complex. More information on the process is available here.

Employing a migrant worker under a sponsorship licence

Once a sponsorship licence is in place, there are certain steps employers must go through before hiring a worker under a Tier 2 certificate. Employers first need to advertise the job they are offering unless it is on the ‘shortage occupation list’. This is known as the ‘resident labour market test’ and is intended to establish whether the position can be filled by workers already in the UK. More information is available here. It may be that the resident market labour test will be abolished for EU workers wanting to come and work in the UK after December 2020, or at least reviewed so that the salary threshold which triggers the obligation to carry it out is lower.

Once the relevant steps have been completed, an employer can assign a certificate of sponsorship via the SMS to a migrant worker. Each certificate is an electronic record with its own unique reference number which a worker can use to apply for a visa. Applications for certificates are only considered once per month (the first working day after the 10th day of the month). The certificate must be used within three months.

What fees and charges apply?

The current fees for a Tier 2 skilled migrant worker sponsorship licence application are £536 for small or charitable sponsors, or £1,476 for medium or large sponsors. Fees are also payable for renewing an existing sponsor licence; extending the scope of a sponsor licence; and assigning certificates of sponsorship to each migrant worker (currently each Tier 2 certificate costs £199).  For more information, see UKVI: UK visa fees.

Hiring a Tier 2 sponsored worker means the employer will usually also be subject to the immigration skills charge. Click here for details of the current rates, which apply per worker and depend on the size of the organisation and how long the worker is working for. It is anticipated that the immigration skills charge would apply to EU workers coming to work in the UK after December 2020 but it has been recommended that the level of the charge should be reviewed.

Next steps

Although there aren’t any guarantees on what the immigration system will look like for EU workers from 2021, it is likely that a points-based system will apply in some form. It is therefore helpful for employers to understand the current sponsorship licence process and be aware of the potential costs and compliance requirements.

If you would like to discuss any of the issues covered in this article or require any advice about immigration issues, please contact Lynne Marr in Brodies’ Employment Team.

John Hunter

John Hunter

Solicitor at Brodies LLP
John joined the employment team as a newly qualified solicitor in July 2018, having trained with Brodies.

John has experience in dealing with contentious and non-contentious employment law issues and drafting policies, contracts and agreements. In addition to his time in the employment team, John also completed seats in the firm’s casualty and public law, regulation and competition teams.

John has worked with a wide range of public, private and voluntary sector clients and has a friendly and commercially focussed approach.
John Hunter