In 2008 the Home Office commenced the introduction of a new points based system for UK work permits for non EEA national. The new system has made the application process less complicated but it is still complex to manage the forms and information required to successfully recruit a non-EEA national or to apply to work in the UK as an employee. As a result, it is beneficial to instruct an employment solicitor to deal with the application process on your behalf and reduce the amount of management time absorbed on the necessary applications. The employment solicitor would liaise between both the employer and the potential employee, advise on the necessary supporting documentation required from both parties and generally ensure a smooth running of the application process.
The points based system requires the potential employee to score a set number of points in order for them to be granted permission to enter and work in the UK. There are 5 tiers to the new system and the number of points the applicant has to score is dependant on which tier they fall under. The tiers are:-
1. Highly Skilled Worker (e.g. doctors, engineers) applicants under this tier do not require a sponsor;
2. Skilled worker with a job offer (e.g. nurses and teachers);
3. Low skilled worker filling specific temporary labour shortages;
5. Youth mobility and temporary workers.
As a result of the new points based system, employers wishing to recruit non-EEA nationals are no longer able to apply for work permits. Instead, you will require a sponsorship licence which will enable you to assign certificates of sponsorship to potential non-EEA employees. This certificate of sponsorship acts in the same way as the old work permits, except that you have much more responsibility and must ensure your HR system is sufficiently rigorous to satisfy the Immigration Authority that you are able to meet the responsibility. If you are in doubt about how the system works you should contact an immigration specialist or employment solicitor.
A fee is payable on application for the licence, the amount of which is dependant on the type and number tiers applied for and whether you are deemed a small or large company under the Companies Act 2006. By way of example, the fee in 2009 to obtain a licence to sponsor an employee under Tier 2 is £300.00 for small companies or charities and £1,000 for large companies. These will no doubt change over time. Once the licence is in place you will appear on the Home Office's list of sponsors and be in a position to be able to recruit non-EEA nationals.
The recruitment process that needs to be followed is dependant on whether the position you wish to fill is on the Home Office's list of shortage occupations. If the vacancy is not an occupation on this list then you are required to complete the Resident Labour Market Test. The test is required to demonstrate that no UK resident worker could be found for the position. The test does not need to be completed if the position is on the list of shortage occupations.
The Resident Labour Market Test requires the position to be advertised in a media form listed in the relevant Code of Conduct and in the Jobcentre Plus. The length of time the position must be advertised for is dependant on the salary attached to the position.
It is important to note that this process must be followed regardless of whether you have already found the ideal candidate. You are required to confirm compliance when you assign the certificate of sponsorship to your new employee.
The certificate may be issued once the above process is complete and if the candidate has scored the necessary number points. For example, for a skilled worker the number of points required is 70.
The certificate of sponsorship must be issued within six months of the job first being advertised. It is then the employee's responsibility to apply for permission to enter and work in the UK.
Employee's wishing to enter the UK to work who fall under Tiers 2, 3, 4 and 5 require the sponsorship of an UK based employer who will need to fulfil of the criteria listed above. If you are unsure of the process you can appoint a representative in the UK, who can either be an immigration advisor or an employment solicitor. It is necessary for the employee to score the number of points set by the Home Office. Points are awarded for age, qualifications and at least 10 points must be scored for maintenance and English language skills.
Once you have completed the necessary recruitment procedure and the employer has issued you with a certificate of sponsorship it is up to you to apply to the Home Office for permission to enter and work in the UK. This must be done within 3 months of the issue of the certificate. The fact that a certificate has been issued does not necessary provide that permission will be granted. It is important to note that the permission if only for you to work for the employer who sponsored you. If you wish to change employer, the whole process will need to be completed again.
Highly Skilled Workers
If you fall within this category then you do not require a sponsor or indeed a job offer in order to apply for permission. A score of 75 points including 10 points for maintenance and 10 for English language skills is required to be eligible to apply.