Changes to the recently introduced points-based system come into effect in April 2009 as the government seeks to reduce the number of non-EEA nationals coming to work in the UK. The government has indicated that further changes may be made.
At around the same time, an employment tribunal decision has muddied the waters by finding that failing to consider job applicants who do not have the right to work in the UK amounts to race discrimination. So where does this leave employers, particularly those who may wish to bring non-EEA workers into the UK?
Q What are the basic rules governing the issue of Certificates of Sponsorship?
A The work permit regime was abolished in November 2008 in relation to non-EEA applicants and replaced by Tier 2 of the new points-based scheme. Employers must be registered as sponsors with the UK Border Agency (UKBA) before being able to issue Certificates of Sponsorship (CoS).
Broadly, employers are able to issue a CoS to skilled workers if they have carried out the appropriate recruitment process for the particular position (known as the resident labour market test) and are satisfied there is no EEA national suitable to fill the position, and that a market-rate salary will be paid.
In some cases, including in the case of shortage occupations or where the person is transferring from an associated overseas company to the UK company, the employer does not have to carry out the resident labour market test. Once the CoS has been issued, the prospective employee must apply for entry clearance before coming to the UK and must qualify under the points-based scheme.
Q What are points awarded for?
A For a number of criteria, including prospective earnings and qualifications, such as a masters degree. In addition, the applicant must satisfy strict maintenance requirements and, in most cases, must demonstrate they speak English.
Q How is the government planning to tighten this?
A In relation to advertisements placed after 31 March 2009, employers must advertise positions at the Jobcentre Plus before they are able to issue a CoS. This also applies to large employers who have previously been able to satisfy the resident labour market test by advertising the position on their own websites.
The Migration Advisory Committee is also advising the government as to whether Tier 2 should be restricted to shortage occupations and a report is expected during summer 2009.
If Tier 2 is restricted in this way, it would severely limit employers’ ability to employ non-EEA nationals in positions that are not shortage occupations and thus limit the pool of global talent available.
Q Will this affect intra-company transfers – ie bringing in non-EEA staff who already work for an associated overseas company?
A At present, the change to the resident labour market test does not affect intra-company transfers as there will still be no need to advertise these positions before issuing the CoS.
However, the government is considering further restricting Tier 2, including the possibility that it may restrict the intra-company transfer category to shortage occupation positions. One possibility is that employers would need to advertise intra-company positions and, wherever possible, offer the position to an EEA national. This may also mean that the prospective employee would need to satisfy the English language requirements, which do not currently apply to intra-company transfers.
These changes would inevitably cause delays to employers who wish to urgently transfer overseas employees to the UK as they would need to allow time to advertise the positions first. It would also mean priority would have to be given to EEA workers, which would mean fewer opportunities for overseas employees to come to the UK.
Q Have there been other changes to the points-based system?
A The government has also made it harder for applicants to qualify under Tier 1 (General). This route is a popular alternative for individuals with degrees and higher than average earnings. From 31 March 2009, applicants will need to have a masters to qualify under Tier 1. Further, all applicants will need to show past earnings of at least £20,000 per annum. These changes will significantly reduce the number of individuals who qualify under this route.
Q What are the ramifications of the recent EAT ruling in the Osborne Clarke case?
A An Employment Appeal Tribunal (EAT) ruling recently upheld a tribunal decision that found that a blanket refusal to consider any application for a training contract from non-EEA applicants who did not have a work permit amounted to indirect race discrimination. The tribunal held that this policy adversely affected non-EEA nationals who (at that time), by virtue of their immigration status, often needed a work permit to work in the UK.
In many cases, trainees from outside of the EEA will now need a CoS before they are able to work in the UK. One of the criteria for issuing the CoS is that the employer is satisfied there is no EEA national suitable to fill the position. Many employers are likely to find it difficult to certify that there is no suitable EEA applicant for positions such as that of a trainee solicitor, where the number of suitable applicants often far outweighs the number of positions available.
This is particularly the case in the current economic climate as many firms are reducing the number of trainees and staff they recruit. As the immigration regime has changed since this case was heard by the tribunal, it may now be possible for employers to justify a policy of not recruiting non-EEA migrants, given the difficulties and uncertainties involved in issuing a CoS, but this is far from certain.
Q How should employers play this?
A Employers should avoid a blanket ban on recruiting non-EEA nationals. Instead, all applications should be considered on their merits. If a non-EEA national is shortlisted for an interview or the position, consideration should be given as to whether it will be possible for them to work in the UK. In some cases, they may qualify under other immigration routes, for example under Tier 1, under the ancestry route or due to marriage to a UK national.
Consideration should also be given as to whether it is possible to issue a CoS to the individual and whether they will qualify under Tier 2. If necessary, the employer (or its representative) should seek advice from the UKBA so as to be able to show that it made enquiries about obtaining the necessary permissions for the individual to work in the UK.
Kerry Garcia, senior associate, employment and immigration, Stevens & Bolton