Employers are urged to evaluate their staffing needs as a result of changes to the Immigration Rules that came into effect on 19 July 2010. The Government has implemented a temporary cap on the number of workers that a business is entitled to recruit from overseas. Crucially, this limit affects overseas nationals already working in the UK, leaving some companies with the prospect of being unable to continue employing those individuals beyond the dates listed in their permits, unless they make the relevant preparations well in advance. Other significant changes include the implementation of tighter criteria for 'highly skilled' individuals who might wish to enter or continue working in the UK.
Q: How do nurseries employ overseas workers?
Nurseries must generally have a sponsorship licence before employing overseas workers in the UK. A licence is also mandatory if the business wishes to continue employing non European Economic Area (EEA) workers who were initially granted work permits. Once approved, employers are given an allocation of 'certificates of sponsorship', which consist of unique reference numbers obtained by the employer from an online system that must be issued to each and every overseas worker before they apply to enter the UK or to remain here.
Q: In what ways have the rules changed?
Before 19 July 2010, and as part of their sponsorship licence applications, employers could request any number of certificates of sponsorship, within reason, based on their anticipated staffing needs. In more cases than not, these requests were granted without difficulty. However, under the new regime, nurseries successfully applying for a licence will automatically be granted a 'zero allocation' of certificates of sponsorship. Ironically, this means that a number of businesses will be licensed to employ overseas workers yet have no certificates of sponsorship to assign to prospective or existing overseas workers, unless they follow an additional procedure to request certificates. In effect, the Government is attempting to control net migration by reducing the number of certificates available to UK businesses.
Q: Will you be affected if you already employ overseas workers?
Yes. The UK Border Agency is in the process of contacting all employers that already hold sponsorship licences to confirm their allocation of certificates of sponsorship during the next 12 months. In many cases, this figure will be reduced from their previous allocation before 19 July to zero. Employers must therefore follow the same request procedure set out above in order to apply for an increase in their newly allocated quota.
The temporary cap applies to workers entering the UK for the first time, in addition to existing overseas workers who are already sponsored by UK employers or who are in the country on work permits. Businesses wishing to employ their work permit holders and sponsored workers after their current permission to work in the UK expires are strongly advised to check their allocations of certificate of sponsorship as a matter of priority. Failure to do so may result in them being unable to renew their employees' leave and continued employment in the UK.
Q: How do the new rules affect 'highly skilled' overseas workers?
'Highly skilled' individuals who have university qualifications and can prove higher previous earnings are entitled to work in the UK without being sponsored under a licence, and without having to be assigned a certificate of sponsorship. Administratively, it is therefore far easier to recruit and continue the employment of these individuals, particularly in light of the new rules. However, workers who are already in the country under a different immigration visa and who wish to switch to the 'highly skilled' category may now need to prove either higher previous earnings or higher qualifications than was previously the case.
Workers wishing to enter the UK for the first time under this immigration category are also affected. In addition to requiring proof of higher previous earnings and/or qualifications, the Government has capped the number of applications that it will process each month in relation to this visa category; the limit will remain in effect until 31 March 2011. In practice, eligible workers meeting the latest 'highly skilled' criteria who are not yet in the UK and who submit their applications to enter the country after the monthly limit has been reached will have their forms processed the next month, with no refund of their application fee. This means there will be little certainty as to when those individuals will be able to travel to the UK to work.
Workers already in the UK under the 'highly skilled' category who wish to remain in the country are not affected by these changes.
Q: Have the rules on employment from certain eastern European countries changed?
No. Workers and their families from Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia or Slovenia are not affected by the new regime, and they still require existing relevant work permissions in order to work in the UK.
Q: What should I do now?
Businesses employing overseas workers are advised to assess their staffing needs over the next 12 months, taking into account any overseas employees whose leave to remain in the UK expires during this period. To ensure that they are able to recruit or extend the employment of their overseas employees, they are recommended to confirm their allocated quota of certificates of sponsorship. In a number of cases, employers will need to follow the new procedures to request an increased allocation of certificates of sponsorship. The restrictions on overseas workers and highly skilled individuals will be superseded by certain permanent limits on 1 April 2011, and details of any new caps will be published at the end of the year, once the Government has concluded its ongoing consultation.
Fortunately, the rules on permanent residence and British citizenship - both of which grant permanent permission to work in the UK - remain unchanged, and businesses are encouraged to assess whether their workers are eligible for these rights. These entitlements avoid the many difficulties associated with sponsoring overseas workers.
If you have any queries relating to the issues discussed in this article please speak with Glyn Lloyd or another member of the Early Years Team at Veale Wasbrough Vizards. Contact Glyn on 0117 314 5272 or at glloyd@vwv.co.uk
