It’s not surprising that with the debate in full swing over whether or not the sanctions against Russia are working, the skilled workforce from Russia and other CIS countries may look abroad to find suitable work.
The Points Based System (PBS) was introduced into the UK immigration system back in 2008 as the key to supporting employers in attracting and retaining skilled labour. It was introduced as a transparent and relatively simple system for employers to use, giving them the ability to approve a migrant’s ability to work in the UK by issuing them a certificate of sponsorship.
Over time and with added political pressures, the system has become more complex as the Home Office has added various layers, administrative functionality and now their ability to exercise discretion over the genuineness of certain jobs, making the process of a UK employer employing a foreign national muddied and complex.
Timing and sponsor licence applications
UK employers wishing to hire skilled, non-EEA migrants in the UK must first apply to the Home Office for a sponsor licence which usually takes two to four weeks to process. The application is document-heavy and some documents, particularly for startups, can take several months to obtain.
A sponsor licence will have a validity of four years, and the employer must be able to demonstrate that it has robust processes in place to meet the compliance obligations which ensure that all its staff are legally entitled to work. These compliance obligations also include updating the Home Office via a secure online system when a sponsored worker leaves or does not take up his or her position within ten working days of the fact.
Once the company has a sponsor licence to employ a non-EEA national, the position on offer must meet a minimum skill and salary level. The role must be at graduate level or above. The skill level for all jobs is reviewed on an annual basis by the Migration Advisory Committee (MAC) and is set out in the Standard Occupational Classification (SOC) Codes. Each job-specific SOC Code will set out minimum salary requirements that each employer must guarantee before they can issue a certificate of sponsorship.
In July 2010 the Home Office introduced a cap on the number of non-EEA nationals who could come to the UK under Tier 2 General, the category used to sponsor new hires. That annual quota is 20,700 split equally into a monthly allocation of 1,725. The monthly quota was exceeded for the first time in December 2014 and demand was met only from excess Restricted Certificates of Sponsorship (RCoS) from preceding months. This trend looks set to continue which means that meeting the minimum skill level and salary criteria will no longer be a guarantee of being granted the opportunity to sponsor a non-EEA national. Further criteria are likely to be imposed, and a compelling case could be argued for overseas companies looking to establish UK operations.
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- Immigration is vital to the wealth of the UK
- Ministers push for “emergency brake” on immigration
- A guide to illegal immigration workers for employers
Advertising to EEA nationals
Prior to requesting a RCoS, an employer must advertise the position for at least 28 days to demonstrate that there are no suitably skilled EEA nationals available for the role. Employers are exempted from advertising if the job is on an annually reviewed Shortage Occupation List, you are employing a graduate who has a Tier 4 student visa or if the skilled worker will receive a salary of at least £153,500. Recent legislative changes are now giving the Home Office the additional scrutiny of ensuring the genuineness of the position, and for the first time we are starting to see the Home Office question employers as to why they cannot employ an EEA national to take up the position. We are also seeing applications for sponsor licences being refused on the basis that the Home Office does not believe the company will have positions available to offer to migrant workers.
Tier 2 general visa applications require the newly hired worker to demonstrate that they can speak, read and write English to a minimum level and provide documentary evidence.
Whilst the PBS route remains the main way to employ a migrant worker, other routes outside of PBS are possible depending upon your circumstances. The sole representative category is used by multinational organisations headquartered outside the UK to transfer a key existing employee to the UK to set up a UK-registered branch or wholly owned subsidiary.
The main Tier 1 entrepreneur category is available for individuals who can demonstrate access to £200,000 of their own funds, or to at least £50,000 in certain circumstances. The individuals must also commit to create two full-time UK positions within a set time. For students graduating outside of the UK, the UK Trade & Investment offer 100 global endorsements through robust competitions for those elite global entrepreneurs who wish to establish a business in the UK.
Timing and strategy are key to any offer of employment to a migrant. It is clear from recent decisions that there is a trend from within the Home Office to ensure that there is an absolute genuine position and skill set that is required by your company. Therefore, supporting documents outside of those usually submitted may be prudent to submit to ensure the application is as strong as it can be.
Katrina Cooper is an immigration lawyer and counsel at law firm Faegre Baker Daniels.
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