Migrants and the UK’s shortage occupation lists: legal dilemma

We are recruiting for a position and have received applications from migrant workers. But the job in question isn’t on the UK Border Agency’s list of shortage occupations, although we believe there’s a shortage of workers available to fill this roll. What restrictions are there on us employing a foreign national in these circumstances?

Assuming the migrants are non-European Economic Area (EEA) nationals without the right to work in the UK and you want permission to employ them, there are several factors to consider in determining if permission can be obtained. The nature and level of the post is relevant and also the salary offered. In general, an employer can obtain a work permit, or from 27 November a Tier 2 applicant, only when the job is at or above national vocational Level 3. An appropriate salary must be offered or else the Border Agency will consider your recruitment effort was unlikely to attract resident workers.

If the job is sufficiently skilled, under Tier 2 you will have to sponsor applications under that rather than apply for a work permit. But you must first have registered with the Border Agency as a licensed sponsor and thereafter you will have certain duties. For example, you must keep records on a migrant worker and report to the Border Agency if they do not turn up for work.

If a migrant needs permission, the post is sufficiently skilled, and you are in a position to assist, the next step is to consider whether the resident labour market test can be met and if you can demonstrate this. But posts that are recognised by the UK Border Agency as shortage occupations need not meet the test.

When recruiting for a job that is not on the list, you must meet the resident labour market test by showing – after an appropriate search – that you cannot find a suitable resident worker. This can include anyone settled in the UK.

If a suitable resident worker applied, but you prefer one of the migrant applicants, the test is not met. Even if you think there is a shortage of workers available to fill this role, the UK Border Agency will not accept it is a shortage occupation unless it appears on their lists.

Roslyn James, solicitor, Maclay, Murray and Spens employment team

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