Introduction
What will care workers and home carers need to apply?
What else is significant about these changes?


Introduction

From 15 February 2022, care workers and home carers will be recognised on the skilled worker shortage occupation list. They will also become eligible to apply for the Health and Care Worker visa subcategory of the Skilled Worker route.

These new arrangements were confirmed in a statement of changes to the immigration rules (HC 1019), which were published on 24 January 2022. This follows on from the government's announcement earlier this month that it would be accepting urgent recommendations made by the Migration Advisory Committee (MAC) regarding sponsorship of carers in its December 2021 annual report.

The Home Office has stated that these arrangements will be in place for an initial 12-month period. A review of their success and whether there is a continued need for them has been scheduled for late 2022.

In April 2022, the MAC is due to release a detailed report on the impact the ending of free movement from Europe has had on the adult social care sector. It is possible that further amendments to the immigration rules will be recommended at that stage.

What will care workers and home carers need to apply?

The following requirements will need to be satisfied for applications made on or after 15 February 2022:

  • the applicant has a job offer under standard occupational classification (SOC) code 6145, which includes:
    • care assistants;
    • care workers;
    • carers;
    • home care assistants;
    • home carers; and
    • nursing home support workers.
  • the job offer is from a sponsor licensed by the Home Office under the skilled worker route;
  • the applicant will not be working for a private household or individual (other than a sole trader sponsoring the applicant to work for their business);
  • the sponsor is approved by the Home Office to sponsor workers under the Health and Care Worker visa – broadly, this is the National Health Service (NHS), an organisation that provides medical services to the NHS or an organisation that provides adult social care;
  • the salary for the job is at least £20,480 or £10.10 per hour, whichever is higher (there is no 'going rate' specified for this occupation code);
  • the applicant provides acceptable criminal record certificates from all countries that they have lived in for 12 or more months in the last 10 years, and while they were aged 18 or over; and
  • the applicant meets the English language, tuberculosis screening and financial requirements of the skilled worker route.

The sponsor guidance and guidance to applicants on gov.uk will need to be updated to reflect these changes; however, this may not happen until 15 February 2022.

When assigning a certificate of sponsorship to an applicant (once the sponsor management system has been updated to recognise the addition of the new occupation code), the sponsor will need to include an explanation of how the individual meets the Health and Care visa eligibility requirements. The sponsor must also tell the applicant they are being sponsored under the Health and Care visa, to ensure the correct immigration application form is completed. This is because Health and Care visa applicants and their dependants benefit from reduced visa application fees, are not required to pay the immigration health surcharge and are eligible for expedited visa processing.

What else is significant about these changes?

For the first time since the skilled worker route was introduced in December 2020, the government has used the shortage occupation list to enable an occupation to be sponsored with a skill level that is lower than level three on the Regulated Qualifications Framework (RQF) (ie, an A-level equivalent). It would, therefore, seem more possible now that the Home Office may use the same mechanism to enable other occupations below RQF level three to be sponsored in the future (eg, if there are sufficient economic or other reasons for the MAC to recommend this, or if the government otherwise sees fit).

It will be interesting to see whether the Home Office will remove this occupation after a short time, or if it will remain in place long-term due to the significant structural difficulties with recruiting and retaining care workers. There is a precedent for long-term inclusion of health and care sector workers on the shortage occupation list, with the MAC "reluctantly" recommending the retention of nurses as a shortage occupation in 2016. Nurses have remained on the list since that time despite the MAC having expressed the view that shortages could be resolved by the sector "providing sufficient incentive and opportunity".

In any event, how much uptake there will be will depend on whether employers in the care sector are willing to take on the responsibility of being a sponsor for these workers, and whether they have the financial capacity to pay the salary required.

On the technical side, HC 1019 introduces an express prohibition on applicants under SOC code 6145 from being sponsored by private households or individuals (other than sole traders recruiting someone to work for their business), on the basis that this is not permissible in general for the sponsorship of skilled workers. This may indicate the Home Office's general view on other occupations, and in particular SOC 6122 (childminders and related occupations), which includes:

  • au pairs;
  • child care assistants;
  • child minders; and
  • nannies.

Since the skilled worker route opened, there has been significant controversy over whether and under what circumstances childminder roles can be sponsored, with many applications being refused. Nevertheless, until the sponsor guidance and/or the immigration rules are further amended, the express exclusion of skilled worker sponsorship by a private household or individual will only apply to SOC code 6145.

The statement of changes did not amend "Appendix Skilled Occupations" to remove SOC code 6145 from being an occupation ineligible for sponsorship under the Skilled Worker route. This is not ideal drafting, because to confirm eligibility, sponsors and their advisers will have to become aware that they must look at the new table 3 in "Appendix Shortage Occupation List", which is headed "Shortage occupations which are otherwise not eligible for the Skilled Worker route".

For further information on this topic please contact Andrew Osborne, Supinder Singh Sian, Sam Koppel or Kathryn Denyer at Lewis Silkin by telephone (+44 20 7074 8000‚Äč) or email ([email protected], [email protected], [email protected] or [email protected]). The Lewis Silkin website can be accessed at www.lewissilkin.com.