A guide to employing overseas workers

Senior Solicitor - Immigration and Employment

With the end of free movement for EU nationals, the closure of the EU Settlement Scheme and the introduction of theUKpoints-basedimmigration system, UK employers are askingwhat this meansforthe continuation of their usual recruitment practice of hiring EU workers to bypass the UK skills gap. UK business owners are asking for advice on how to sponsor overseas workers as employees. To help you our business immigration solicitors have created a guide for UK employers on employing and sponsoringoverseas workers.

A sponsor licence enables an employer to recruit and employoverseas workerswho aresubject to UK immigration controlsandwho require a work visa tofind employmentin the UK.Without aHome Office issuedsponsor licence your businesswon't be able to sponsorworkers who aresubjectto UK immigration controlsand whoneeda sponsoring employer to be able to work in the UK.

Which overseasworkersdon't need a sponsor? Brexit and the end of free movement for EU nationals changed which overseas workers are not subject toUKimmigration control.

Until the 31 December 2020 EEA nationalswereable to live and work in the UK free of immigration restrictions.Since the 31 December 2020an EEA national arrivingin the UKto liverequiresa work visa, business visa or family visa andmustcomply with the same Immigration Rules as a non-EEA national.

From a recruitment perspective,it is helpful to know which overseas workers aren't subject to immigration control and who don't require sponsorship. These workers include:

• Non-EEA citizens who have obtainedIndefinite Leave to Remainin the UK.
• EEA nationalswhoentered theUKto livebefore the end of free movement on the 31 December 2020and who securedsettled statusor pre-settled statusundertheEU Settlement Scheme.
• EEA nationals who entered the UK before the 31 December 2020and appliedlate for settled status. The government deadline for applications under the EU Settlement Scheme was the 30 June 2021,but the deadline has been extended for those whohave areasonable explanation for their latesettled statusapplication.
• EEA or non-EEA citizens who secure British citizenship.

Whether a potential employee is subject to immigrationcontrolsis an important consideration for UK employersasa businesscan't legally employ any person who doesn't havethe legal right to work in the UK.An overseas worker doesn't have a right to work if they require a sponsoring employer and your business doesn't hold a sponsor licence.

Can my businessapply for a sponsorship licence? Many small companiesand employersworry that they won't be eligible to apply for a sponsor licence. However, the Immigration Rules allow any size of companyor employerto apply for a sponsor licence provided thatthe businessmeetsthe following eligibility criteria:

• Your business isa genuine organisation that operates lawfully in the UK.
• Your business hasa genuine need to recruitoverseasworkers to meet vacancies that meet thework visacriteria.
• Your business haskey personnel in your organisation who will be able to manage the sponsor licence.
• Your HR systems are robust enough to handle the requirements of the sponsor licencemanagement,recording and reporting duties.

How do you apply for an employer's sponsor licence? An application for an employer's sponsor licencemustbe made online and submitted tothe Home Office. Your application must be supported by specified documents thatneed to besent tothe Home Officewithin five working days of submission of the online application.Business immigration solicitorscan submit both the onlineapplication and the supporting paperwork on your behalf. It is sensible totake legal advice before submitting your applicationbecause:

• Your choice of key personnel to manage the sponsor licence can be the difference between your sponsor licence being approved or rejected.
• If you fail to specify key personnel, or do not demonstrate that you have the HR capacity and systems in place to meet the sponsor licence reporting and recording duties, your application may be delayed or refused.
• If your sponsor licence application is delayed, this will delay your recruitment plans and potentially your company expansion.
• If your sponsor licence application is refused, theHome Office won'trefund your sponsor licence application fee. The fee for the sponsor licence application depends on the size of your business.

How long does a sponsor licence last for? A sponsor licence lasts for four years. If a sponsor licence lapsesbecausea sponsor licence renewal application isnotmade your business can't continue to act as a sponsoring employer. Yoursponsored employees will have their visas curtailed and will either need to find a new sponsoring employer or leave the UK.For information on renewing a sponsor licence read our article:How to renew a sponsor licence .

A sponsor licence can end early if a business asks for the sponsor licence tobe terminatedor if the Home Office decidesto suspend or revoke the licence. The revocation of a sponsor licence isn't something most business plans caterforso it is best to ensure your business complies with its sponsor licence reporting and recording duties.

Which overseas workers can a UK business hire with a sponsor licence? If your businesssecuresa sponsor licence fromthe HomeOfficeyou cansponsorapersonwho is subject to UK immigration controls. The sponsored worker must hold:

• ATier 2 (General) visa- The Tier 2 (General) visa route ended in December2020but existing visa holders continue to hold valid work visas,or
• A skilled worker visa- introduced as part of the UKpoints-basedimmigration systemin December 2020,or
• An intra company transfer visa- for multi-national companies looking to transfer existing overseas employees to work for their UK branch.

What isTier 2 sponsorship? Many business owners will see reference to 'Tier 2 sponsorship' referring to the various Tier 2 visaroutes.TheTier 2 visa is themost commonvisa category used by UK employers to recruitoverseasworkers. In the Tier 2 visa there are four mainwork visa routes, namely:

Visa Comment

Tier 2skilled worker visa This replaced the Tier 2 (General) visa.

Tier 2 (Intra-company transfer) visa For employers wanting to transfer existingoverseasemployeesto the UKbranch of their company.

Tier 2 (Sportsman) visa This visa enables national sports people and coaches to work in the UK.

Tier 2 (Minister of Religion) visa This visa allows religious workers to enter the UK and undertake work of a religious nature.

Recruiting and sponsoring a skilled migrant worker When recruiting an overseasworker,theoverseas workercould either be:

• Already in the UK and sponsored by another UK employer.(To change employment to your business therecruit wouldneed to applyto the Home Officefor a newwork visa),or
• Applying fromoverseas for awork visa.

If your businesssecures asponsor licence, you may think that you will be able to offer employment to anyoverseas workerwhomeets thejob description,but that isn't the case. If you want tosponsan overseas workeryour businessneedsto:

• Check if the jobvacancy is for a roleon the government produced list of standard occupation codes(SOCcodes).The list of occupations and 'going rate' criteria are contained intheImmigration Rules Appendix Skilled Occupations .Ifthe job you are recruiting for doesn't fit within a SOCcodethen the overseasjob applicant won't secure a skilled worker visa even if all the otherskilled worker visaconditions are met.
• Check to see if the job ison theshortage occupation list.The list can be accessedon thegovernment website .Ifthe jobison the shortage occupation listthis could have benefits for both employer and employeeasdifferent minimum salary threshold applies to jobs on the shortage occupation list. In addition,the visa applicant may find it easier to secure the seventy points required under the points-based immigration system for their skilled worker visa.
• Create a job specification and advert for the job bearing in mind the standard occupation codes and shortage occupation list.
• After the recruitment process is complete, if the successful candidate requires a work visa, a certificate of sponsorship needs to be allocatedto the visa applicantand the business needs to pay the immigration skills charge.
• The successful job applicant then applies to the Home Office for theirskilled worker visa paying the relevant fee and immigration health surcharge.
• If the Home Office grant a visa the employer must complete theright to work checkson the new employeebefore the employee takes up employment.
• Prior to and during the worker's employment, the employer must comply with their reporting and recording duties under the sponsor licence.For example, this means that the employermust retain some documents relating to the recruitment of the overseas worker. The obligation to carry out reporting and recording continues throughout the sponsoringemployee'semployment. For example,reporting aworker'schange of address.

The certificate of sponsorship To enable the successful job applicant to apply for a work visa they must first be allocated a certificate of sponsorship (COS) by their prospective sponsoring employer. The COS contains vital information to help the Home Office determine the visa application and is simply a reference number that enables a Home Office official to access the relevant information.

There aretwo types of COS, namely:

• An undefined certificate of sponsorship . click apply for full job details