Navigating overseas hiring

October 4, 2023

What are the biggest challenges facing employers wanting to hire from abroad in the present climate?

Put simply - uncertainty and change.  Obviously, Brexit changed the landscape of employing staff from overseas and it does feel like we’re still letting the ground settle.In terms of EU staff, if they were in the UK before December 2020 then they should have registered their status as either Settled or Pre-settled in which case they can work in the UK unimpeded.  For those EU citizens coming into the UK, they are largely in the same boat as people from elsewhere in the world so would need to qualify for a visa to enable them to work here.Brexit aside, in the last few years we have seen so much change to the ways in which someone can be employed from overseas.  Just by way of an example, about 3 years ago we still had Tier 2 Intra company transfer visas (this was where someone based in an overseas branch of your company, came to the UK temporarily to work in your UK branch). The “Tier 2” disappeared in 2020 when the name changed to “Intra company transfer visas” and then this year it was changed again to a Senior or Specialist Worker Visa which falls within one of the Global Business Mobility visas.However, as long as you do keep abreast of the change, or engage someone to do that on your behalf, the possibility to engage staff has generally become technically easier in the last few years.

Can anyone employ migrant workers?

Technically yes.  However, if the migrant worker isn’t already eligible to work in the UK (for instance as a dependent), then the potential employer will need to consider the most suitable option.  In many cases, this will include obtaining a sponsorship licence.  The type of licence you will need will depend on the type of visa the worker will have.

The most common type of visa that migrant workers are engaged on is a skilled worker visa.  Like with the Intra Company transfer visas, these have seen some changes over the last few years.  They used to be a Tier 2 General visa and are now known as a Skilled worker visa.

I mentioned that employing migrant workers has technically become easier, well this largely relates to Skilled Worker visas.

I’m sure many employers will remember the dreaded Resident Labour Market test.  This was where the prospective employer had to advertise (and be able to prove they had advertised) for the role that they wanted to sponsor, for a month in the UK – and it was quite restrictive in terms of how they need to advertise.  However, this requirement has gone.

In addition, if sponsors were applying for a Certificate of Sponsorship (CoS) you used to have a set number of restricted CoS (for employees from outside the UK) that were released each month.  You then had to submit your application for a CoS by 5th of the month in order to be considered on or after 11th of the month.  It was all rather odd and prescriptive.  However, now, instead of Restricted CoS we have Defined CoS and you can apply for these whenever you want.  In addition (officially) it’s supposed to take 1 day for the application to be granted.  However, I have had several clients who have reported it taking up to and over 2 months before they have received a decision on the application for a CoS, so this timeframe should not be relied upon.

How do you become a sponsor and what sort of responsibilities do you have as a sponsor?

The application form itself is actually pretty straightforward.  It’s online and, although the form itself looks like it’s from the early 90s and is not great, it’s not overly complicated.  However, the difficult part is collating the documentary evidence you need to show that your business is a genuine going concern and would make a suitable sponsor.  The requirements are specific, and the pitfalls are many.  It is worth getting support with your application, if only to ensure the documents you have meet the requirements.

When you apply to become a sponsor, you need to identify who, within the organisation, will perform the 3 roles required.  These are Authorising Officer (a senior and competent person responsible for the actions of staff and representatives), Key contact (your main point of contact with UK Visas and Immigration (UKVI)) and Level one user (responsible for all day-to-day management of your licence).  These roles can be, and often are, performed by the same person.The main responsibilities of being a sponsor relate to keeping UKVI updated on any changes relating to your business and or the sponsored employees.  So, it’s important that the people chosen to fill the key roles perform their role(s) fully and properly.  If they fail to do so it can put your licence and the employees’ visas at risk.

Is it expensive being a sponsor?

It can be.  The price ranges quite a lot for small businesses and larger employers.  For instance, the cost to apply for a licence is £536 for a small business but almost £1,000 more at £1,476, for a large business.  There are then the additional costs like the £199 per CoS and the immigration skills surcharge which is £182 (small employer) or £500 (large) for every 6 months (i.e. up to £5,000 for a 5 year visa).  There are also the employees’ costs which the employer often carries, including the visa application cost (£625 to £1,423 depending on the circumstances) and the health surcharge of £624 per year, which many employers help with.So it can cost close to £10,000 to sponsor someone for 5 years and that’s not including any legal fees incurred.  However, if this person has the skill set you need, then undoubtedly, it’s worth it.

What about the new Global Business Mobility Visas. Could you explain what they are?

There are several:

  1. Senior or Specialist worker visa. As with the old ICT visa, it enables the transfer of employees into the UK to a UK trading company holding a sponsor licence. In most respects it remains the same as the old ICT visa, in terms of:
  2. no English language requirement;
  3. no settlement;
  4. and minimum skills at graduate level.
  5. Graduate Trainee visa. This visa has replaced the Intra-company Graduate Trainee visa, which, until 2020 was the Tier 2 (Intra-company Transfer) Graduate Trainee visa. This visa allows workers to work in the UK for their employer’s UK branch. The applicant must have worked for the overseas employer for a minimum of 3 months in a managerial or specialist role, which is part of a graduate training programme.
  6. **UK Expansion Worker visa.**This visa allows a representative of a company to come to the UK to set up a branch of an overseas business that has not started trading in the UK yet. The worker must already work for the overseas business as either a senior manager or specialist employee.
  7. Secondment Worker visa. This visa allows overseas employers to transfer an employee to the UK to do an eligible job for a different organisation. The overseas employer must have a high-value contract with the UK organisation.
  8. Service Supplier visa. This visa enables employees to live and work in the UK if they have a contract to provide services for a UK company, either as:
  9. an employee for an overseas company;
  10. a self-employed professional based overseas.

It’s worth noting that none of these routes count towards the required 5 years to permit a person to settle in the UK. Therefore, workers looking to remain here long term are likely to seek to switch to a different visa, most likely the usual Skilled Worker route.

Are there different options depending on whether you need someone long term or short term?

Absolutely. Actually all of the Global Business Mobility visas, other than the Specialist Worker, are short term and are usually only 6 to 12 months.  If you want to employ on a temporary basis you can get a temporary licence, which won’t last as long as the one you would get for a skilled worker which lasts 4 years.

A good example of a short visa is a Scale up worker visa.  This enables scale-ups to sponsor migrant workers on a short -term basis (up to 2 years) to help their business to continue to grow.  Unlike the skilled worker route, the skill level is degree level rather than A-level.

The salary must equal or exceed £33,000 per year (which is higher than the £25,600 per year general salary threshold under the Skilled Worker route), the ‘going rate’ for the job and £10.58 per hour.  However, Unlike other sponsored routes, employers sponsoring workers under the Scale-up route need only confirm that an applicant will work for them for at least the initial six months of their visa.  After this period, the immigration status of Scale-up visa holders is not tied to their sponsoring employer.  This means that Scale-up workers can undertake additional or alternative work (including employment, self-employment and voluntary work) without being sponsored.  However, this might not be great for the employer.  It could result in a situation where you go to all of the effort to sponsor the worker then, after 6 months they leave you for your competitor!

Are there any other visa options which don't require sponsorship?

Yes, there are a couple of possible options.  There’s the Graduate Visa.  This enables people who have studied in the UK to stay and work for 2 years or 3 if they were in the UK to get their PHD.  They would need to have been sponsored as a Student.  They can the switch to a Skilled worker visa if they find a sponsor, but it does give them that 2 or 3 years first.  There’s also the High Potential Individual visa.  This is for individuals who have studied abroad at one of the top 50 Unis.  Otherwise, it’s quite similar to Graduate visa.  Then there’s the Student visa.  On the student visa you can work part-time during term-time and full-time during holidays.  The visa itself should stipulate the hours permitted and employers need to be careful to remain compliant.  Finally, certain tasks can be performed on a Standard Visitor visa, but it’s pretty restrictive so it’s important to make sure you take advice before engaging someone on this basis.

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