Are you struggling to find suitably skilled staff? This is a common difficulty for SMEs. With a talent shortage in the UK – including in IT/technology and engineering – growth businesses are increasingly looking to migrant workers to plug the skills gap.
Citizens of the European Economic Area (EEA) and Switzerland have the right to work in the UK without restriction. Some non-EEA citizens may be able to start work immediately for you if they have a general UK visa already, such as a partner/spouse visa or a personal skilled Tier 1 visa. If not, they will need a new work visa.
Sponsored work visas
Over the past couple of years, as a result of the Government’s high profile pledge to reduce net migration, the UK Border Agency (UKBA) has closed the Tier 1 personal visa routes for “high-value” workers and graduates from UK universities. This has been frustrating for SMEs, as it has forced them to use Tier 2 work permits for new hires, which can sometimes involve extra red tape.
A UK employer must have a sponsor licence from the UKBA to be able to get sponsored Tier 2 visas for skilled migrant staff, either already in the UK or from overseas. To get a sponsor licence, the UK office needs to be trading (with at least one employee) and show that it can meet certain HR and compliance requirements. The UKBA may visit the employer to conduct an audit of its HR processes and record keeping duties. For example, with employer fines for illegal working likely to rise to up to £20,000 per illegal worker, it is essential that SMEs conduct right to work checks on all hires.
Employers must use the Tier 2 General visa category for recruitment of external hires. Unless the candidate is on a student or post-study work visa, or the role is designated as ‘shortage occupation’ or will have an annual salary of at least £152,100, the hiring employer must advertise the role to the resident workforce for at least 28 days before a visa can be issued to a non-EEA hire.
The business must show that there are no suitably qualified settled applicants that could perform the role, which can create uncertainty especially for roles that are not specialist or that do not require extensive experience or qualifications. If the candidate is currently overseas, after advertising there is another hurdle – the sponsor must request ‘restricted’ permission from UKBA to hire because the UK’s annual immigration cap of 20,700 visas will apply. Based on prior take-up, the cap should not prevent recruitment but will cause extra delay while approval is sought.
For SMEs that are part of an international group structure, intra-company transfers of staff from linked overseas offices can be arranged quickly with an exemption from advertising and the immigration cap.
For all Tier 2 visas, there are minimum salaries and skill levels for the UK job, which can create a challenge for cash-strapped start-up businesses that would prefer equity incentivisation packages or that need to recruit inexperienced graduates or apprentices. Minimum salary is set by UKBA and depends on the role, but for all Tier 2 General visas annual salary must be at least £20,300 (£40,600 for Tier 2 Intra Company Transfer visas lasting 12 months or more).
Hiring non-EU graduates
A sponsor licence is now an essential recruitment tool for SMEs to be able to compete for the best graduate talent – SMEs often lose the best job applicants because they do not have a sponsor licence in place. With a licence, hiring the brightest and best migrants from UK universities – who may already be doing temporary work for you on their Tier 4 student visa for up to 20 hours per week during term-time – is relatively straightforward. Provided that the student has completed and passed a bachelor’s or post-graduate degree from a recognised UK higher education institution, he/she can switch into a Tier 2 visa before the student visa expires and the business will be exempt from advertising and from the immigration cap, although the mandatory skill level and salary requirements will still apply.
As a key driver of growth in the economy, SMEs that are looking to recruit need access to the best migrant talent. This is still available with the Tier 2 visa system but employers need longer lead-in times to plan recruitment and take specialist advice to avoid unnecessary delays and roadblocks.
Charlie Pring is senior counsel in the Employment team at international law firm Taylor Wessing.
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