Employing foreign workers can be fraught with problems for unsuspecting employers if they do not obtain the correct permissions. Laurence Dunn provides some practical tips.
Since 27 November 2008, UK companies wishing to employ foreign workers have had to register with the UK Border Agency (UKBA) as a sponsor under the new points-based system (PBS) and, once accepted as a sponsor, issue a certificate of sponsorship to the worker in question. The PBS is the system now used by the UKBA for managing migration for those wishing to enter the UK for work or study, and replaces the old work permit system.[1]
Organisations wishing to employ foreign workers must do so using the PBS, unless the workers are nationals of the EEA (broadly, the EEC countries plus Iceland, Norway and Lichtenstein[2]). The ability to employ non-EEA workers has been restricted since19 July 2010, when limits were placed upon the number of visas that can be issued to applicants under Tiers 1 and 2 of the PBS.
The points-based system
Tier 1 of the PBS consists of applications by highly skilled workers where there is no sponsoring employer (i.e. where the individual does not already have an offer of employment in the UK). Tier 2 of the PBS consists of four sub-categories:
- General.
- Minister of religion.
- Sportsperson.
- Intra-company transfer.
The ‘general’ category is for people coming to the UK with a skilled job offer to fill a gap in the workforce that cannot be filled by a settled worker. This requires the sponsoring employer to satisfy the UKBA that the vacancy cannot be filled by a worker within the EEA, which in turn requires the employer to prove that it has carried out a recruitment search across the EEA. This requirement is not easily satisfied, except for the most specialist of jobs.
The ‘minister of religion’ and ‘sportsperson’ sub-categories are seldom used by businesses, which leaves the ‘intra-company transfer’ (ICT) sub-category as the other main avenue to employ foreign workers under Tier 2.
The skilled workers category
This article will focus on employers wishing to employ foreign workers under Tier 2 of the PBS, namely ‘skilled workers’, and in particular under the ICT sub-category, which may be the more accessible route for employers.
Unlike Tier 1 and general sub-category of Tier 2, there are currently no restrictions upon the number of visas that can be issued to applicants under Tier 2 (ICT). An ICT is where an employee of one group company, located outside of the EEA, is transferred to work in another group company in the UK.
Becoming a sponsor under the PBS
Application to become a sponsor is made on line at the UKBA’s web site. A decision first has to be made as to which Tier and category the employer wishes to be registered under, which in turn will dictate the requirements that need to be met.
To become a sponsor for the Tier 2 (ICT) category, the employer has to satisfy the requirement to be in the same common ownership or control as the overseas company or companies from which foreign workers are to be transferred.
Next, the UK organisation needs to state the nature and location of its business and provide sufficient information for the UKBA to rate the company’s HR systems, to ensure that the company will be able to keep track of all of its foreign workers and prevent illegal working. The company is also rated against its previous record of compliance with immigration law.
The prospective sponsor also has to specify how many certificates of sponsorship it wishes to issue to migrant workers which, if approved, will result in an allocation of certificates that it can issue in any given year. An application is made for further allocations in succeeding years.
Once a sponsor’s licence is granted, the sponsor may issue certificates of sponsorship using the UKBA’s online ‘sponsorship management system’. Failure to operate the sponsorship management system correctly may result in the sponsor losing its licence, meaning that it will no longer be able to employ foreign workers under the PBS.
Issuing certificates of sponsorship
When issuing certificates of sponsorship to foreign workers under the ICT sub-category, the employer must first ensure that the employee to whom the certificate is to be granted will fulfil all the criteria to get a visa, which is applied for after allocation of a certificate. There is a self-assessment tool available on the UKBA web site, on which the prospective employee can (by completing the form online) determine whether or not they are likely to qualify for a visa.
The PBS requires prospective ICT workers to score at least 70 points in the following categories:
- Sponsorship – in the case of an ICT, the worker must have worked for another overseas group company for at least 12 months prior to the application for a Certificate and the transfer must be to fill a post which cannot be filled by a settled worker. Typically, this will be because the transferring employee has knowledge of the business which only an employee of a group company would have.
- Qualifications – the job must require qualifications at S/NVQ 3 level or above. Qualifications at that level carry five points; at bachelors degree level 10 points; and at masters degree, or PhD level 15 points.
- Prospective earnings – the job must pay at least £20,000 per annum, at which salary 10 points are earned. There is a sliding scale of points, up to a maximum of 25 points for salaries over £32,000. The salary to be paid must be at least as much as UK workers are paid for the same work.
- English language skills – all applicants must score 10 points for their English language skills. This is usually satisfied by either the applicant coming from an English-speaking country (e.g. the US) or having obtained a degree taught in English.
- Maintenance – the applicant must be able to either prove that they have £800 worth of savings available to them or that their sponsor will guarantee to maintain and accommodate them for the first month of their employment in the UK.
Having satisfied itself that the prospective employee will meet the above requirements, the employer can then issue a certificate of sponsorship to the worker, who then uses it to apply for a visa to enter the UK. When applying for the visa, the worker will need to submit evidence (usually originals of documents) to support the points claimed on the certificate of sponsorship application.
The visa, if granted, will usually be for a period of three years plus one month.
[1] www.ukba.homeoffice.gov.uk/workingintheuk/
[2] http://www.ukba.homeoffice.gov.uk/eucitizens/