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Scattered to the four winds

Charlotte Ashton

Speculation is rife as to what elements of the law will remain and what will be repealed. Top of the pile marked “contentious” is, of course, freedom of movement, and it should also be top of the heap for “most urgent” too, as businesses in all sectors struggle with the stark reality that this essential human resource is going to be, at the very least, far harder to come by.

Article by Charlotte Ashton, Employment and Immigration Solicitor – Ward Hadaway (Manchester).

While the Prime Minister has said that legal rights will be guaranteed during her period in office, in the long-term it is impossible to know what is likely to ensue from the Brexit negotiations, and how it will impact businesses. Particularly since the General Election resulted in a hung parliament, this issue is only likely to grow in contention and will be a subject of significant debate across political parties. The United Kingdom currently operates a points-based system for those from outside the EEA looking to come to the UK to work, and already there are indications that there will be a narrowing of the ability to recruit workers from this area. This is most easily seen through the proposed increase to the Immigration Skills Charge (ISC), the increase to the Tier 2 minimum salary threshold, and the strict rules around financial maintenance where UK and EEA nationals are seeking to sponsor spouses from outside of these areas. If a future government is looking to reduce immigration, these are all areas that could be further tightened to bring numbers down – and all potential causes for concern for small businesses.

In addition, there have been a number of mixed messages in relation to international students – on the one hand confirming that international students will remain in the immigration statistics, and therefore in line for being in some way restricted to meet net migration targets, and on the other hand stating that there will be no cap on the number of “genuine students”. The proposed increase to the ISC will likely hit small businesses who are struggling to recruit the right talent from within the UK. Where an business needs to bring in talented individuals from outside the UK or EEA to fill a skills gap the additional cost of at least £2,000 will place a large burden on those businesses without the turnover or margins to absorb such a cost. There is a possibility that, as now, the increased ISC will not apply to individuals switching from a Tier 4 student visa to Tier 2. This would benefit international students looking for permanent roles in the UK following graduation, so employers should try wherever possible to recruit these graduates in order to avoid bearing the brunt of this charge.

In addition, businesses looking for individuals with niche skills can look to recruit individuals who have Tier 1 Exceptional Talent visas. These visas are aimed at those who are considered world leaders, or future world leaders, by virtue of their skills. The Tier 1 Exceptional Talent visa has, unlike the other Tier 1 routes, been expanded in recent years. It now includes the field of digital technology, in addition to science, humanities, engineering, medicine and the arts. This offers a little hope for – yet the fact remains that they will need to take ever greater care when looking to recruit talent in order to ensure that they are fulfilling their obligations and complying with all regulation. This is particularly important in circumstances where the rules change regularly and the unsuspecting employer can easily be caught out.

Businesses need to be aware that, in the current political climate, they are likely to face much greater scrutiny when applying for sponsor licences. This could include visits from the Home Office to review HR practices and procedures. During such visits, any discretion by the Home Office may be applied more strictly than in the past, resulting in a higher number of rejected applications. Furthermore, if there is to be a change in the rights of EU nationals to enter and remain in the UK, it is likely that already stretched Home Office departments will face still greater pressures, which could cause significant delays in processing sponsor applications. An example of this happening was in 2012, where there were issues approving visas on account of the London Olympic Games. At that time, sponsor licence applications were taking months, rather than weeks, to be reviewed – and it is entirely possible that the pressure placed on departments to process visas in the face of Brexit will be far greater than in these circumstances.

Businesses must make sure they are working closely with trusted advisors in order to ensure they are aware of their obligations, whether employing migrant workers or not, and that they are fully up to date with any changes to legislation. At the moment there are specific guidelines in place for businesses that employ, or are looking to hire, migrant workers. Currently businesses must check that all potential employees have the right to work in the UK before they start work. The checks are required to be carried out on original documents, with a note made of the date of the check,  alongside verification that the documents are not ‘reasonably apparent forgeries’, and that the individual producing them is consistent with the document details, such as the image, age and gender. These documents must be retained and easily available so that they are able to be produced in the event of a Home Office visit, whether as part of a sponsor check or a general compliance check.

This in itself can cause issues for employers if they have multiple sites with documents held centrally. It can also be problematic if there is a change in HR personnel; continuity of HR procedures is vital for businesses to ensure that the correct documents can be produced on request. This is also important in that it allows for repeat checks, crucial where an individual only has documents showing a limited leave to remain. While these checks may seem daunting, it is nonetheless important that great care is taken, particularly when handling documents employers may be unfamiliar with. These should be checked against the Government’s guidance – which is over 100 pages long and features full colour pictures of various pieces of documentation.

In terms of visas and sponsorship licenses, there are separate actions that small businesses must ensure they take. Where a business is already a sponsor, and employs sponsored workers, it must ensure it is up to date with its licence and sponsor obligations, but also with any changes to salary levels for the individuals it sponsors. Failing to regularly review the status of sponsored workers could lead to applications for extensions being rejected, due to not having the correct salary level at the time of extension, for example. Where a business is not yet a sponsor, it must consider carefully why it needs to recruit from outside of the UK, and explore alternatives such as recruiting from the UK’s pool of international graduates in order to avoid the ISC, and whether the business has sufficient HR resource to ensure compliance with the extensive obligations a sponsor must observe.

The best advice is to seek guidance from a trusted partner early in the process when businesses believe they may need to recruit from outside the UK. Too often, companies hit a stumbling block, and only then seek advice, which is an approach that can have serious ramifications. It can impair a business’ ability to obtain a sponsor license, assign a certificate of sponsorship or, in the worst case scenario, could impact their ability to continue sponsoring current staff. Seeking support from legal experts, is one of the most important steps to take in the build-up to impending Brexit negotiations, in order to successfully manage recruitment needs, and ensure the best outcomes for the business and employees alike.

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