The media has of late been overwhelmed with stories of businesses having to make difficult decisions regarding human capital and finding it hard to acquire and retain appropriate levels of talent. Many industries including Engineering, IT and Oil & Gas – have been hit particularly hard. With so much activity taking place in certain sectors, HR managers would do well to remember some important immigration considerations that would assist their companies in getting the best talent available in the pool to where they need them at a certain point in time. HR managers need to be reminded that immigration and compliance activities span much further than just recruitment exercises.
WHAT’S THE SOLUTION?
Transferring staff from overseas can be extremely useful as it allows companies to move highly skilled workers to and from overseas offices whilst retaining their skills within the given company. The UK immigration system offers a route for commercial and business purposes called Tier 2 (Intra-company Transfer). Under this route, companies are able to transfer staff from overseas/outside of the European Union (EU) without the need to be subject to the Home Office’s cap on skilled migrants, applicable to Tier 2 (General), that recently led to a large amount of refusals.
Furthermore, staff sponsored under Tier 2 (ICT) are exempt from paying the Immigration Health Surcharge, introduced in April 2015, thereby saving on the cost front pertaining to recruitment and talent acquisition activities. There are similar intra-company transfer routes available in other countries, assuming the company in question has been incorporated in the given jurisdiction and has obtained necessary permissions to sponsor foreign workers.
Where the company does not have a branch or office overseas, however foresees transferring staff to that location or transfer staff to the UK from that location, the company should start the incorporation process in the overseas location as early as possible.
BUSINESS CHANGES AND REDUNDANCIES
It is not unusual for companies to merge or experience a change in structure. Where there are significant changes and the company in question is employing staff from outside the EU, these staff, who may also be employed under Tier 2, will need to be reported to the Home Office by HR. A change like this must be reported to the Home Office within 20 working days of taking place, as per their policy. If, in these circumstances, a company decided to accept overseas staff and their employment is being transferred under the Transfer of Undertakings (Protection of Employment) Regulations 2006, the company needs to be fully aware of its obligations as a sponsor. They will also require a sponsor license (which permits for employment of non-EU workers at a UK based office) something which we can assist with applying for.
Tier 2 employees that are offered a new role within the business which falls within the same (SOC) code as quoted in the Certificate of Sponsorship do not need to make a new visa application to the Home Office, subject the salary requirements being met. However, a new application may need to be made where the Tier 2 employee’s role fell under the Shortage Occupation List and they are moving outside of the SOC code to a role that no longer falls within that list.
In matters concerning redundancies or termination of a Tier 2 sponsored employee’s employment contract, HR manager must update SMS within 10 working days of the change where the employee’s departure is earlier than the end date stated on the Certificate of Sponsorship.
Both the recent and the upcoming proposed changes are going to have a sweeping effect on companies who depend on global talent to fulfil their recruitment needs. This is automatically leading to companies, including our clients, to assess and make far reaching strategic decisions that impact upon its employees. Transferring UK staff overseas and foreign staff to other locations can help companies to fill skills gaps in key projects and retain staff.