Are overseas-worker changes a positive step or just too much hassle?

Yash Dubal is director of A Y & J Solicitors

Jeremy Hunt’s Budget announcement of a relaxation of immigration rules was designed to help construction firms struggling to employ workers in a range of trades and to ensure that the UK labour market has access to skills and talent from abroad where needed.

“We will not be seeing an army of migrant tradespeople taking up positions in the nation’s building sites”

The addition of five occupations to the Shortage Occupation List (SOL) effectively allows construction firms easier access to cheaper overseas bricklayers, roofers, carpenters, plasterers and general construction workers.

In theory, this should be good news for the thousands of firms that are struggling to find the right workers. Finally, they can look beyond these skills-depleted shores for the labour they desperately need and get back to the business of building.

Unfortunately, this is unlikely to be the case. We will not be seeing a reverse Auf Wiedersehen, Pet anytime soon, where an army of migrant tradespeople take up positions in the nation’s building sites, clutching their freshly endorsed Skilled Worker visas.

There are several reasons for this, but primarily it is because, traditionally, construction firms have not used Skilled Worker visas to fill the roles that are already eligible, so are unlikely to start now. And those that do will soon find the system of visa sponsorship confusing, onerous and a headache, particularly smaller SMEs which do not have the administrative facilities to deal with the requirements of employing migrant workers.

Even the independent Migration Advisory Committee (MAC), which recommended the inclusion of the roles on the SOL, acknowledge that the changes are unlikely to have a significant impact, saying: “Placing these occupations on the SOL is unlikely to lead to a very substantial rise in visa applications, at least in the short run. However, it maintains that a low uptake should not be taken as a failure of the policy, but more a reflection of the fact that recruiting foreign workers may not be an effective solution for many employers.

Those that do explore the option will discover that it is not just a question of advertising a role and offering a job. There are many hoops a company must jump through in order to be in a position to sponsor someone on a Skilled Worker visa. There are also significant fees. Bigger businesses with established administrative offices will be familiar with the red tape but SME’s and smaller limited building firms without experience will no doubt find the whole system frustrating. It takes up to eight weeks just to get approved to sponsor a worker, longer if there are issues with the required paperwork and the monitoring is ongoing.

Failure to meet the requirements or infringements of the rules when workers are hired can have serious consequences, no matter if mistakes are unwitting or not.

However, let’s not dwell on the negatives. There will be firms for which the changes will be a lifeline. Indeed, employing skilled overseas workers on a Skilled Worker visa allows businesses access to a much wider talent pool from which they can find the right people for the job, with the necessary skills and experience. In many industries, skilled workers from overseas are now habitually employed to fill skills gaps. They also bring the added benefit of helping to create more diverse and inclusive workplaces, bringing fresh ideas and new ways of working.

The process

So for those who do take the plunge, what can they expect?

In order to employ workers from overseas on Skilled Worker visas, organisations must hold a sponsor licence. To qualify for this, the applicant needs to meet strict criteria and must be able to demonstrate it has the required systems and processes in place. Many businesses that could use skilled workers from overseas do not because they are put off by the application and maintenance process.

It helps to understand how the system works. A UK sponsor licence is granted by the UK government to a business or organisation allowing them to sponsor non-European Economic Area (EEA) and non-Swiss citizens to come to the UK to work. Organisations can apply online through the government website and will receive compliance assessment by the UK Visas and Immigration (UKVI) agency. Once a sponsor licence is granted, the business or organisation will be assigned a unique sponsor licence number and will be placed on the Register of Sponsors. They are then able to sponsor foreign nationals and apply for certificates of sponsorship (CoS) on their behalf. The CoS is then used by the foreign national to apply for a visa to come to the UK.

UKVI conducts regular compliance visits to licence-holders to ensure they are fulfilling their duties, such as keeping accurate records of sponsored employees. It is also the responsibility of the sponsor licence-holder to monitor the compliance of their sponsored employees, including ensuring they are working in accordance with the terms of their visa.

There are also fees payable when you sponsor a worker. Depending on whether you are a small or medium to large enterprise the cost per worker varies between £536 and £1476. Most applications are decided within eight weeks.

Immigration rules change continually so it helps to stay abreast of immigration news. If you are uncertain about your responsibilities as a sponsor or have any concerns about your sponsorship arrangements, it is advisable to seek professional advice from a qualified immigration lawyer as issues can usually be dealt with easily and quickly.

There has been a trend reported in some recent compliance visits whereby officers have been asking about workplace pension schemes and this is something to bear in mind for new licence-holders. You may be asked to provide records to prove employees have opted out of the company pension scheme. Employment contracts may be scrutinised to see that they match current pension rules. Compliance officers might ask to see a clause regarding the workplace pension scheme and if there is no clause, this might lead to a negative report. This is unlikely to be a problem for larger companies with generally robust HR procedures but may be an issue for smaller employers.  Companies that do not have a workplace pension scheme, such as sole traders newly registered for a licence, might struggle with this line of questioning.

The key is to be aware of your sponsorship duties and your duties as an employer.

Despite some of the onerous admin that is required, however, for businesses that are struggling with productivity because they cannot find the right tradespeople in the domestic labour pool, these changes to the immigration system will have a significant impact.

Leave a comment