You have a niche position open. It’s a specialist skillset. You advertise like normal but the best candidate that comes through is from outside of the EU. What considerations do you need to take into account before being able to hire this individual?
In order for any UK employer to sponsor a migrant from outside of the EU, they will need to ensure that the position being offered meets a skills threshold. The position must fall by definition within the Standard Occupational Classification (SOC) Code and meet the National Qualifications Framework level 6. It is important to understand whether or not the position meets these criteria as it underpins the whole of the visa application process. In addition to the skillset, you also need to ensure that you pay the minimum salary set out under the relevant SOC code.
1. First, you need to ensure that you have a valid sponsor licence issued by UK Visas and Immigration (UKVI). This application process can be quite document heavy, and in recent times submissions have come under greater scrutiny. In addition to simply showing that you are an active and trading entity within the UK, you will also need to demonstrate why you need the licence and that the skillset is not available from within the EU.
2. At the same time you must review the advertising for the position to ensure that it will meet UKVI’s strict requirements: you must advertise in two locations for at least 28 calendar days. It is mandatory for you to advertise on the government website Jobcentre Plus Universal Jobmatch, although there are a few exceptions to this rule. The advertisements must clearly state the job title, the main duties and responsibilities of the job, the location of the job, an indication of salary, skills, qualifications and experience needed, and the closing date of the applications.
3. In 2011 the coalition government introduced an annual immigration cap of 20,700 visas for all new employer-sponsored skilled workers through the Tier 2 General route. The monthly allocation of Tier 2 General Certificates of Sponsorship for newly hired skilled workers is 2,550 in the first month of the financial year (6 April to 5 May) and then 1,650 per each other month, with any surplus allocation being carried over to the following month.
Once your advertising is completed, you must make a specific request through your sponsor licence for one of these restricted certificates. Applications must be made before the fifth of the month, and therefore if your advertising runs over this period of time, you will not be able to make this request until the following month’s allocation.
Being granted a restricted Certificate of Sponsorship is no longer a given. Just over four years after the immigration cap's introduction, June 2015 will be remembered as the month that we first saw the impact of the monthly immigration cap being met with, at the very least, 400 applications having to be refused. In June, only those applications where the intended salaries were going to be more than £46,000 were successful. Whilst this criteria is flexible and will vary from month to month, one thing is for sure — the more you pay, the greater the chance of success in obtaining a restricted Certificate of Sponsorship.
4. If you are approved for a restricted Certificate of Sponsorship, the migrant worker can now make their visa application from their country of residence abroad. The visa processing times are usually between five to 15 working days, depending upon location.Part of the standard visa processing requirements, however, will include payment of the Immigration Health Surcharge, which is £200 per year per application. For a migrant with a wife and two children applying for a five-year visa, this equates to an additional £4,000 on top of the government processing fee. In a number of jurisdictions a TB certificate must be obtained prior to the application, and there are also English language requirements which must be satisfied by nationals of non-majority English speaking countries.
Whilst the hiring of a foreign worker from outside of the EU is complex and time consuming, if you follow the process and understand fully the requirements, it can run relatively smoothly. The most critical takeaway is to understand the timing. If you do not have a sponsor licence it can take four to six months before the migrant worker is on the ground working. Even if you do have a sponsor licence it can still take between three to four months. Knowledge is key.
Katrina Cooper is a counsel at law firm Faegre Baker Daniels