How post-Brexit visa rules are affecting immigrant worker sponsorship

UK net migration has reached an all-time high. There are many contributing factors, one being that more UK companies than ever are turning to the immigration system to locate the skilled talent they need.

Before 2021, construction companies were restricted in how they could use the immigration system as most construction jobs were not deemed skilled enough to be eligible for company sponsorship, with sponsorship essentially limited to high-level, white-collar roles. However, the 2021 revamp of the points-based immigration system lowered the skill level, which opens up many construction roles to sponsorship.

Construction companies are now turning to the immigration system as a potential way to solve labour shortages. And given that the CITB predicts a need for over 250,000 new construction workers by 2026, it makes practical sense to explore the possibility of visa sponsorship.

If a role falls on the shortage occupation list there are benefits such as cheaper visa fees and a lower minimum salary threshold. Almost all engineering jobs are on this list

The aspects to consider are: how to sponsor individuals; how to navigate the relative complexities of the system; and ongoing compliance requirements once your company is a sponsor.

Sponsor licence framework

Sponsoring workers for visas involves a two-part process: first, obtaining a sponsor licence; then, following approval of the licence, the ability to issue a certificate of sponsorship (or CoS) to employees which enables them to apply for a work visa.

• Sponsor licence: Most construction companies operating a bona fide business in the UK, with a premises and UK-based staff, should be eligible to apply for a sponsor licence. You will need to complete an online application form and provide a minimum of four corporate documents (such as evidence of PAYE and VAT registration, a copy of a lease, corporate bank statements, employer’s liability certificate) and then apply to the Home Office for the licence. Once submitted, the application should be considered within eight weeks, although there is also an expedited option.
  
  Once approved, the licence is valid for four years, with an option to renew. The licence will allow you to issue a CoS to your migrant workers, permitting them to then apply for their visa.

• Ongoing compliance: Companies need to be aware of the ongoing compliance obligations imposed upon them as a licence holder by the Home Office. Understandably, the Home Office expects companies to adhere to the rules to ensure migrant workers are being treated fairly and companies are not abusing the sponsorship system.
  
  There are compliance obligations relating to the licence itself and the corporate documentation. The Home Office must be informed when certain events happen, such as changing your registered office, adding work locations, acquiring companies, changes in key personnel – this list is not exhaustive.
  
  There are also obligations relating to the sponsorship of the workers themselves, such as informing the Home Office if their job role or work location changes, if they are placed on long-term medical leave, if their salary is reduced – again, not an exhaustive list.
  
  It is important to be aware of these obligations as sanctions can be imposed. The Home Office can even revoke the licence entirely if they are not adhered to. These obligations are, of course, in addition to conducting proper right-to-work checks on all employees.

• Shortage occupation list: It is worth briefly mentioning the shortage occupation list, a list that contains certain roles where there is a perceived labour shortage. If a role falls on the shortage occupation list there are several benefits, such as cheaper visa fees and a lower minimum salary threshold. Almost all engineering jobs are on the list, as are certain specific construction roles.

Other visa options

Aside from the skilled worker visa route, there may be other visa options open to individuals, depending on the activities they intend to carry out in the UK and their personal circumstances. For example, there are permissible activities an individual can undertake as a “business visitor”, avoiding the need for sponsorship. These include attending meetings and conferences, negotiating contracts, carrying out site visits, and being briefed on a UK-based customer. In these circumstances, a visitor visa will suffice.

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Furthermore, you may also want to assess individuals’ personal circumstances to determine whether they could be eligible for other types of visa. For example, nationals of several countries (including Australia, Canada and New Zealand) who are aged 18-30 could be eligible for a youth mobility visa. Ancestry visas are also available for non-UK nationals with a grandparent born in the UK. In addition, the EU settlement scheme is still open for family members of EU nationals currently living in the UK. There are thus sometimes further visa options to explore before sponsorship becomes a necessity. 

Thomas Mayhew is a manager at the global immigration firm Fragomen