To tackle the skills shortage in engineering, firms are increasingly looking to source qualified workers from overseas. However, traversing the legal processes involved can be a complex and intimidating experience.
The most common skilled-worker visa applications in the UK fall into a category called Tier 2 (General), says Jennifer Stevens, senior associate solicitor and practice manager at Laura Devine Attorneys in New York, which specialises in all aspects of business immigration to the UK and US, and in European free movement. The most commonly used UK visa category for skilled workers is Tier 2 of the UK’s Points Based System. Within this is a subcategory called Tier 2 (Intra-Company Transfer – ICT) visas, which are a useful option for firms with offices overseas.
This option allows companies to temporarily move employees to the UK for short or extended periods. It requires the company to act as a sponsor to the employee, which involves requesting a licence from the Home Office and providing a certificate of sponsorship to the employee.
A firm will need to submit an application to the government to prove it is an established UK company, and that it can meet all the sponsor duties required of it, including reporting migrant activity and ensuring its personnel files are up-to-date. “They are signing up to a lot of responsibility under the Tier 2 category, and opening themselves up to the Home Office visiting them to make sure everything is being carried out correctly,” says Stevens.
Skills defined
No advertising of the role is required for an ICT, but the position does have to be skilled to National Qualifications Framework (NQF) level 6, which applies to all the Tier 2 immigration categories, with some exceptions. This is equivalent to a degree-level position that requires a lot of skill or technical know-how.
The government outlines codes of practice for skilled workers, called Standard Occupational Classification (SOC) codes. Before sponsoring a worker in this category, the employer must be sure that the position falls within one of these SOC codes at the required level, which can be found on the gov.uk website, says Stevens.
Most engineering positions fall within the desired skill level, she says. However, it is important to check that the job vacancy fits into the NQF level 6 code, as the Home Office considers certain technician roles to be of a lower level.
In addition, the company must be sure it is paying the required salary, as outlined by the Home Office. ICTs are now split into four sub-categories, each with its own minimum salary (see box below).
Applicants for ICT visas must score a minimum of 60 points (50 points for attributes and 10 points for maintenance) to successfully apply, as shown in the table opposite.
Points are earned by both the company and applicant meeting certain criteria, which for ‘attributes’ include following the salary guidelines and having a valid certificate of sponsorship, which cannot have been issued more than three months before the date of application. Companies must record the job as it appears on the list of graduate-level occupations as stated in the code of practice. Further points can be earned for ‘maintenance’ – for example, the employer certifying that it will provide maintenance and accommodation during the first month the worker is in the UK, if required.
The licence application can take between three and four months. However, applications have recently been coming through much faster, says Stevens. “The government is, we hope, recognising how important this category is, and speeding them up,” she says.
Employers should take care to ensure that all the information is detailed correctly on the sponsorship certificate, including the salary and the SOC code, says Stevens.
Visa applications
Once the certificate has been assigned, the migrant worker must then apply for their visa from their country of origin or legal residence. The timing of this step will vary depending on where they apply from, so employers need to be aware of the time it will take to get them into the UK. “Here in New York, the British Consulate generally turns applications round in two to three working days. In other countries, you’d be looking at a few weeks,” says Stevens.
The government has recently introduced an exclusion period under Tier 2 – something that could catch employers out. If the employee has previously been in the UK as a Tier 2 migrant and returned home, there is now a 12-month exclusion period before they can return to the UK under Tier 2. There are exemptions to this rule, such as workers who fall into the Tier 2 subcategories of short-term staff, skills transfer or graduate trainees, who would be able to return within 12 months under the long-term staff category, she says. There is also an exemption for those earning at least £155,300.
Tier 2 (General) visas are usually used for new hires, says Stevens. An employer must first register with the UK Border Agency and obtain a sponsorship licence (see table below for cost).
Advertising is required unless the salary package for the position is at least £155,300. Advertising can also be avoided if the position appears on the shortage occupation list, which outlines all skilled positions in the UK that can’t be filled by settled workers or EEA nationals. The list covers a lot of engineering roles, so it is a good place to check when considering hiring a migrant worker under a Tier 2 (General) visa. The list can be found at the gov.uk website. If a role appears on the shortage occupation list, it does not have to be at NQF level 6 in the way that other positions do under Tier 2 (General).
If the role does not appear on the shortage occupation list, then advertising must be carried out according to Home Office guidelines. Companies must advertise the role for at least 28 days in two media. One of those media must be a government website such as Jobcentre Plus or Universal Job Match, unless the salary package is at least £72,500. In that instance, a company need not advertise on a government site, but must still advertise on two separate media. “Those could be a journal or engineering job site or a general recruitment site such as Fish4Jobs,” says Stevens.
The advert must include a date for the receipt of applications, the location, the job title and salary. If they are not included, the company will need to readvertise the role.
If the company has received no applications from suitable resident workers at the end of that 28 days, it can request a certificate of sponsorship from the Home Office under the Tier 2 (General) category. “There is a monthly cap of 1,650 on Tier 2 (General) restricted certificates, whether or not they have had to advertise the role,” says Stevens.
Oversubscribed
For many years the cap hasn’t been met, but for the past few months it has, which means you may run the risk of having your application rejected, she says. The only solution is to try again the following month. However, employers should be aware that if they have had to carry out advertising, it will only be valid for six months, she adds.
“The Home Office assesses applications for certificates on a points basis, so if it is a position on the shortage occupation list, which obtains the most points, they are likely to get a certificate.”
To gain entry under the Tier 2 (General) visa, an applicant must score 70 points. Possession of a Tier 2 (General) certificate of sponsorship will garner 30 points, and a further 20 points will be awarded if the employee is earning the minimum salary. Ten points are awarded for English language ability,and a further 10 points must be earned for maintenance requirements.
Once the sponsorship certificate is granted, the employer can assign it to the migrant worker, who will need to apply for a visa within their country of origin.
There is an annual cap on the number of Tier 2 (General) visas that can be granted – 20,700. People earning more than £155,300 are excluded from the cap. The length of the visa is six years, but after five years workers can apply for indefinite leave to remain. “This depends on whether they qualify,” says Stevens.
Until the skills crisis is solved, the Tier 2 categories are essential, she says. “I think that is recognised by the government, which has put engineering positions on the shortage occupation list. This problem can’t necessarily be solved by the UK workforce.”
ICT subcategories
• Long-term staff: For transfers of more than 12 months. The employee must have worked for the overseas company for at least 12 months. Minimum salary required: £41,500 a year, or the ‘salary rate’ for the role as detailed on the appropriate SOC code – whichever is higher.
• Short-term staff: For transfers up to and including 12 months. The employee must have worked for the overseas company for at least 12 months. Minimum salary required: £24,800 – or the minimum salary rate on the SOC code, if higher.
• Graduate trainee: For transfers into graduate trainee subcategory programmes for specialist roles. The applicant must be a recent graduate with at least three months’ experience at the company. Minimum salary required: £24,800 – or the minimum salary rate on the SOC code, if higher.
• Skills transfer: For applicants to gain skills and knowledge needed to perform their role at the overseas branch, or to pass on their skills to UK colleagues. They don’t need to have been with the company for a set period of time. Minimum salary required: £24,800 – or the minimum salary rate on the SOC code, if higher.