It will come as no surprise to hear that recruitment remains one of the biggest challenges businesses face in the UK. With an ageing population and a growing shortage of skilled workers in certain sectors and industries, more employers are tapping into –
or considering how to access – an international talent pool. But what are the legal complexities and steps that employers need to consider and take to be compliant with current UK immigration laws?
Understanding immigration law
The primary legislation that governs immigration law in the UK is the Immigration Act 1971 introduced by a Conservative government under the leadership of Edward Heath. This Act, alongside the Immigration Rules, controls the legal framework for recruiting and retaining foreign nationals, with the key principle being that entry to the UK should be controlled, and permission given to enter and stay.
The Act and Rules require foreign nationals to have a ‘right to work’ with the correct permissions, and sets out the employer obligations to ensure they meet the established requirements and restrictions surrounding migrant employment. This approach has continued in different ways but principally remained the same.
Broadening the horizon
Considering hiring foreign nationals can be a somewhat daunting step, but with the right support to help navigate employers through the process, organisations can reap significant benefits from this potential workforce.
What are the steps that need to be taken?
To hire a migrant worker who doesn’t currently hold immigration status which allows them to work freely in the UK, organisations have to ‘sponsor’ their employment by gaining a licence from the UK Visas and Immigration (UKVI). This licence gives employers the opportunity to recruit foreign nationals under a number of visa options, with skilled worker visa and the global business mobility visa being the most common.
To become a sponsor, an organisation must first meet certain criteria and then comply with various obligations, such as record-keeping, monitoring and recording immigrant worker status. These reporting duties then need to be fed back to the UKVI to ensure ongoing compliance and management of migrant workers.
The business, in essence, takes on the duties of an Immigration Officer. A significant level of trust is held in the organisations which hold a sponsorship licence, and the UKVI expects those organisations to act in accordance with immigration laws, sponsorship guidance and wider UK law such as employment law.
Recent legal updates
In April 2024, the Government published its Statement of Changes to the Immigration Rules, driven by its manifesto commitment to reduce net migration to the UK and to encourage businesses to recruit domestic talent.
These changes increased the minimum general salary thresholds, from £26,200 to £38,700, for skilled worker visas, a change that is likely to financially impact employers looking to recruit more junior roles or, in specific sectors, hospitality and retail, for example. In addition, it also increased the going rate salary thresholds for individual occupation codes too.
Whilst these salary increases do not apply to immigrants entering the health and care sector, the changes did stipulate that only employers registered with the Care Quality Commission (CQC) can sponsor care skilled workers, and dependents of these workers were not permitted access to the UK.
Could a change in Government lead to further reforms to immigration? At the moment, we don’t think there will be significant changes to the way the immigration laws operate in general. Our view is that if Labour comes into power, fees may come down for migrant recruitment and the thresholds and procedures could become more stringent.
Labour could also re-enact the resident labour market test, a formal test, designed by the Home Office but abolished in January 2021, to prevent a migrant worker being recruited over a domestic UK resident.
Is the sponsorship licence the only route for businesses?
No, certainly not. In 2021, the Graduate Visa route was introduced which enabled international students to work in any role or industry for up to two years once they had completed their undergraduate or master’s courses. This route was intended to make the UK a more desirable location for international students and to retain migrant talent to positively impact the UK economy.
With a number of leading universities in London and the South East, this route removes the need for employers to obtain the sponsorship licence whilst accessing an engaged and diverse workforce. In addition, the two-year timeframe provides businesses with the opportunity to trial employees and up-skill with training and experience before assessing their long-term value and fit within their business, ahead of then progressing to a sponsorship route.
We’re here to help
International recruitment can enable organisations to fulfil their recruitment needs by accessing this global skills pool and provide them with a rich tapestry of talent and diversity. But balancing immigration compliance with employment law and HR policies and practices can be a challenging and complex act. Our specialist team of solicitors and HR professionals can help you navigate this, advise you on the preparation and submission of a sponsorship application and assist your business in the recruitment and retention of migrant workers.
