As immigration specialists, we at GDB Legal closely monitor any changes to the UK's Immigration Rules that may impact our corporate clients. The latest Statement of Changes in Immigration Rules, presented to Parliament on UK Immigration Rules Update: Key Changes Affecting Businesses Employing Migrant Workers10 September 2024, introduces several amendments that businesses employing migrant workers should be aware of. In this post, we'll break down the key changes and explain how they might affect your organisation.
Introduction of a 'Genuineness' Requirement for Skilled Worker and Scale-up Visas
One of the most significant changes is the introduction of a new 'genuineness' requirement for Skilled Worker and Scale-up visa routes (APP SO.1). The Home Office now has the authority to refuse applicants if they have reasonable grounds to believe that the job offer is not genuine or has been created primarily to facilitate the applicant's entry or stay in the UK.
What does this mean for businesses?
Increased scrutiny on job offers: Employers must ensure that every job offer extended to migrant workers reflects a genuine business need. This means job roles must be aligned with actual operational requirements, not created solely to secure a visa for a candidate. If the Home Office determines that a role was artificially created, visa applications could be rejected, resulting in delayed hiring and business disruptions.
Evidence of genuineness: You may be asked to provide documentary evidence supporting the legitimacy of the role. This could include job descriptions, proof of recruitment processes, business plans, or explanations of how the role contributes to your business. Businesses must be prepared to demonstrate that the role cannot be filled by a domestic worker and justifies the employment of a migrant.
Impact on hiring timelines: With this added layer of scrutiny, visa applications may take longer to process if additional evidence is requested. Businesses should factor in potential delays and ensure that all necessary documentation is available at the start of the application process to avoid bottlenecks.
Potential compliance checks: The introduction of this requirement could result in more Home Office audits or inspections, particularly if there is any suspicion around the genuineness of job offers. Ensure your recruitment process is well-documented and aligns with the requirements of the Skilled Worker or Scale-up visa routes to avoid compliance issues.
Updates to Sponsor Guidance on Reporting Absences and Attendance Monitoring
The Statement of Changes introduces updates to sponsor guidance regarding reporting worker absences and attendance monitoring (APP SO.4). While the specifics are not yet fully detailed, the changes indicate a stronger focus on compliance in this area.
What does this mean for businesses?
Stricter absence monitoring: Sponsors are required to keep meticulous records of their sponsored workers' attendance. Whether an employee takes a short-term leave, long-term absence, or has frequent lateness issues, these must be monitored and potentially reported. Businesses that do not adequately track and report absences may face penalties, including loss of sponsor licences.
Review of current systems: Now is the time for businesses to evaluate their absence monitoring systems. Consider implementing or enhancing HR software that can track employee absences, holidays, and sickness leaves in real-time. Ensuring compliance will not only help avoid penalties but also ensure smooth operations should the Home Office request attendance records.
Potential sponsor licence risks: If your organisation fails to comply with the new reporting requirements, it could be flagged during an audit, and this might lead to your sponsor licence being downgraded, suspended, or even revoked. For businesses heavily reliant on migrant labour, this could have devastating effects, so compliance with the updated guidance is crucial.
Clarification on Scale-up Sponsor Licence Status
The rules now clarify that when a Scale-up sponsor exits the route, their sponsor licence will become dormant, and they must cease sponsoring their workers (APP SO.6.3).
What does this mean for businesses?
Plan for continuity: If your business holds a Scale-up sponsor licence and intends to move away from this route, you must ensure alternative arrangements are in place for your sponsored workers. Once your licence is dormant, any workers sponsored under this scheme will no longer have valid employment permissions under this route.
Potential worker migration to other visas: You will need to transition your current migrant workers to a different visa category if you no longer sponsor them under the Scale-up route. This could mean helping them apply for other visa types, such as the Skilled Worker visa, which will require a different set of eligibility criteria and salary thresholds.
Impact on existing employees: If alternative arrangements are not made, sponsored workers could lose their right to work in the UK, potentially leading to job losses and disruptions in business operations. This change could also impact your employee retention strategies, as those affected may feel insecure about their future within the company.
Amendments to Skilled Worker Salary Requirements
Amendments have been made to clarify the salary requirement for the Health and Care visa under the Skilled Worker route (APP SW.8.3). Specifically, the salary threshold must now be calculated based on a 37.5-hour working week.
What does this mean for businesses?
Salary recalculations: If you employ workers in the health and care sector, you must ensure that their salaries are based on a 37.5-hour work week. Any worker employed for fewer hours must have their salary prorated accordingly, and failure to meet the appropriate salary threshold could result in visa rejections.
Salary reviews and adjustments: Companies must review their current salary structures to ensure they meet the revised requirements. Offering lower salaries than what is required for the Health and Care visa could jeopardise visa applications, potentially leading to staffing shortages in critical areas.
Budget adjustments: This clarification may require businesses to adjust their payroll budgets to meet the required salary levels. Failing to comply with salary thresholds could lead to complications in securing visas for workers, ultimately affecting the continuity of your workforce.
Sponsor Record-Keeping and Recruitment Practices
The Statement of Changes also emphasises the importance of sponsors' obligations to retain detailed records of their recruitment processes (APP SO.9.3) and refrain from discriminatory recruitment practices (APP SO.10.3).
What does this mean for businesses?
Enhanced record-keeping: Employers must maintain thorough records of how migrant workers are recruited, including interview processes, selection criteria, and decisions. These records must be readily available in case the Home Office requests evidence that your hiring practices are compliant with immigration rules. Keeping these records up to date will protect your organisation in case of any audits or inspections.
Non-discriminatory recruitment: Employers must ensure that their recruitment practices are fair, transparent, and non-discriminatory. The recruitment of migrant workers should not favour or disadvantage certain individuals based on nationality, race, or immigration status. Violations of these standards could result in fines or other legal consequences.
Preparation for Home Office audits: Sponsors should prepare for potential audits, where these records could be scrutinised. Failure to maintain proper records or follow non-discriminatory practices could lead to penalties, including the suspension or revocation of your sponsor licence, disrupting your ability to employ migrant workers.
At GDB Legal, we understand that navigating the complexities of UK immigration law can be challenging for businesses. Our team of experienced immigration lawyers is here to provide guidance and support to ensure your organisation remains compliant with the latest rules and regulations. If you have any questions about the recent changes or need assistance with your sponsor licence, please don't hesitate to contact us.
Contact us today for more information and tailored legal advice.
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