Sponsoring skilled workers after Brexit and the pandemic

As businesses find themselves at the nexus of a new future of work catalysed by COVID-19 and plans for a new immigration system in 2021, they need to consider their ability to sponsor non-UK nationals to work in the UK, taking into account increased unemployment and remote working, says immigration and mobility specialist Samar Shams.

If a business does not yet have a sponsor licence, the Government’s advice is to consider applying for one now, to be able to sponsor European Economic Area nationals and other non-UK nationals to work in the UK under the future immigration system.

The changes to the sponsorship system will be in place from 1 January 2021, after the post-Brexit transition period ends. Home Office processes relating to sponsor licence applications have been modified to accommodate current restrictions on movement and businesses are able to complete the sponsor licence application process now, despite lockdown.

Early indications show that more UK businesses might engage with the sponsorship system in future: the skill and salary thresholds are decreasing, to A-levels and £25,600 respectively. Salaries can be lower where points are awarded for a role being on the shortage occupation list or for a PhD.

Those businesses that already have sponsor licences should consider seeking advice on auditing HR systems in place to support sponsor duties, including compliance duties, record keeping duties and reporting duties. An audit could include a review of sponsored migrant’s HR files, to ensure the appropriate documents are kept for each sponsored worker. An audit is particularly advisable for businesses that applied for their sponsor licences without taking immigration advice, for those that have not yet been visited by the Home Office and for those who will soon need to renew their sponsor licences.

Compliance with sponsor duties is crucial to being able to maintain the ability to sponsor overseas nationals. This is especially true as the Home Office has accepted the Independent Chief Inspector of Borders and Immigration’s recommendation that Immigration Enforcement should increase the use of sponsor licence revocations to deter illegal working.

One might argue that the rise in UK unemployment caused by the pandemic means that businesses will not need to sponsor workers from overseas. Although the Office for National Statistics will not publish unemployment figures for the lockdown period March-May until July, unemployment has increased considerably.

However, the talent gaps that employers seek to fill through sponsorship may remain despite the rise in unemployment. Many of the newly unemployed may not have the skills sought by sponsoring employers. Those most at risk of unemployment are lower-skilled workers in hospitality, retail and construction, and office support staff who work close to co-workers and with the public. Many jobs eligible for sponsorship are more secure because they do not require working in close proximity to others, e.g. architects and graphic designers.

Meanwhile, social distancing and remote working have accelerated the transition to tech, automation and robotics. Demand for tech skills, already in shortage in the UK before the pandemic, has likely already increased and will remain high in the new normal.

Sponsors will have to take a few extra steps to demonstrate compliance in relation to remote working. The Home Office wants to be able to visit a sponsor and find a particular sponsored migrant at the office during their documented working hours. Sponsors allowing homeworking need to be able to demonstrate robust monitoring systems to assure the Home Office that they are keeping track of sponsored workers. It is best practice to document homeworking permissions in employment contracts or HR files.

As remote working nurtures a move away from hours-based working and towards output-based working, the divergence between the realities of the modern workplace and sponsorship requirements continue to grow. In the latest changes to sponsor guidance, the Home Office added a requirement that employment contracts include ‘the hours the migrant will work’.

Global competition for talent in tech and in other sectors reliant on sponsored workers will be fierce as economies recover. The Home Office should seize the opportunity to accommodate the future of work in the future immigration system.

 

Samar Shams is a Partner at Spencer West LLP, practicing immigration and global mobility. For more information on sponsor licences and mock audits please email Samar.

 

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