The number of foreign workers in the UK economy has more than doubled in the last decade. According to a recent survey by Hydrogen, Britain is the world’s second most desirable location for professionals looking to live and work abroad. Sectors such as ICT are no stranger to this, where migrants comprise 22% of the workforce.
There are many reasons why employers in the technology sector may wish to bring in foreign workers. Employees from certain nations, in particular emerging markets are often willing to accept lower salaries. Foreign workers may offer certain expertise that the UK market lacks. Furthermore the pooling of British and foreign talent can be beneficial in developing new products and services or in carrying out particular projects.
It is relatively straightforward to engage workers from other states in the European Economic Area (EEA). There are, however, greater legal barriers to overcome when employing people from outside the EEA.
The need for a sponsor license
Migrants coming into the UK from outside the EEA are grouped into different tiers. Most technology company employers will wish to bring in people within Tier 2, which is for skilled workers. Employers must apply to the Home Office for a sponsor licence when employing Tier 2 workers. A sponsor licence is valid for four years.
Employers are empowered to issue certificates of sponsorship to employees themselves after receiving a sponsor licence. This is effectively a system of self-certification. When applying for a sponsor licence, the business must estimate how many certificates of sponsorship it requires in the next 12 months.
As soon as the employee has a valid certificate of sponsorship, they need to apply for clearance at the British Embassy in their country of origin. This is a points-based system where the employee is awarded scores dependent on factors such as prospective earnings and skills. In addition, migrants need to demonstrate that their English language skills are up to a certain level and that they have enough money in their bank accounts to maintain themselves and their dependents.
The process of obtaining a sponsor licence
Employers must complete an online sponsor licence application form. Supporting documentation showing that the business is a legitimate organisation should be provided too.
Employers need to allocate particular roles to individuals in the organisation. The Key Contact liaises with the Home Office for the purposes of management and compliance. The Authorising Officer ensures that the employer complies with its duties. Level 1 users are responsible for conducting day-to-day sponsorship activities. Level 2 users assign certificates of sponsorship and report migrant activity.
Employers will be issued with an A-rating or a B-rating indicating whether they can meet their sponsorship obligations.
Employers can issue certificates to prospective employees under two routes:
Tier 2 (General)
This is for foreign nationals who have been offered a skilled job to fill a gap in the workforce that cannot be filled by a settled worker. UKBA regularly updates a list of specific roles that the UK has a shortage of. Current jobs include particular civil, mechanical, electronic engineers; some IT business analysts; and certain programme and software development professionals in the film, television or games sector or in the electronics systems industry.
Tier 2 (Intra Company Transfer)
There are four sub-categories:
- Long-term staff being transferred for more than 12 months
- Short-term staff being transferred for less than 12 months
- Graduate trainees as part of a structured graduate training programme
- Skills transfer for graduates to learn the skills and knowledge required to perform their job overseas, or to impart their specialist skills or knowledge to the UK workforce
Considerations for employers
Employers must be aware that they are accepting certain responsibilities when they apply for a sponsor licence. They should ensure migrant workers are legally entitled to undertake their jobs. Employers must only take on those who have permission to work and stop employing anyone whose permission lapses.
Prior to applying for a licence employers need to have systems that are robust enough to manage the demand of engaging foreign employees. Employers should have no previous record of non-compliance with immigration laws. They should be selective in choosing their Key Contact, Authorising Officer and Level 1 and 2 users. These people are crucial to ensure the business operates a system which works smoothly, efficiently and legally. We, as lawyers, can help with training, compliance, HR and act as a day to day management of the sponsor licence by issuing certificates of sponsorship.