One in three Londoners was born overseas, but hiring foreign workers is still a red tape headache. So ease your pain with this simple advice guide
By Scott M James, Faegre Baker Daniels LLP
An international employee often presents a London-based company with the opportunity to add skills and expertise not offered in a local market. This proposition can raise immigration and special employment issues. In this first article, we look at the immigration issues, few of which are London-specific, given the national nature of immigration law.
Will immigration laws restrict the employee’s right to work?
Not all international employees will be subject to additional pre-employment immigration requirements. A worker’s nationality and personal circumstances will determine this. Citizens from one of the 30 countries of the European Economic Area, people with indefinite leave to remain (settlement) status, workers whose spouses or civil partners are subject to immigration control, and certain categories of students are all examples of non-British citizens who can work without any additional immigration control.
What must we do to hire an employee who needs immigration authorisation?
If the employee will be subject to pre-employment immigration control, the employee will probably have to qualify for immigration authorisation by accumulating sufficient points within specific criteria. These international workers most often fall into two of the points-based immigration categories: Tier 1 and Tier 2. The difference between these categories is significant. Any employer can hire a Tier 1 worker. Only employers licensed by UK Border Agency (UKBA) as a sponsor can employ a Tier 2 employee.
What does it take to become a sponsor?
To qualify as a sponsor licensed to employ Tier 2 workers, an employer must be based in the United Kingdom, understand its sponsorship duties and have internal systems in place to track, monitor and report to UKBA on its sponsored workers when certain trigger events occur.
Who are Tier 2 employees?
The two most popular Tier 2 sub-categories are Tier 2 (Intra-company Transfer) and Tier 2 (General). Only a worker employed outside the United Kingdom in your company’s international group for at least the past 12 months can qualify as an intra-company transfer. The Tier 2 (General) sub-category is available for international employees who may not have had any previous connection with your company. Generally, they will come to your attention by way of a recruitment search. Tier 2 (General) workers fall into yet two more groups: those who already have some form of immigration authorisation and can transition to your company’s employment readily and those who do not have any current immigration authorisation. To hire an international employee in the latter group can be problematic. UKBA has limited the number of people who can qualify for this category to 20,700 this year. To allocate these limited slots, UKBA created a new application procedure that requires a sponsor to make a detailed business case for hiring the international worker.
Who are Tier 1 employees?
Compared to an employer’s commitment required to hire a Tier 2 worker, finding an international worker who has or will qualify for Tier 1 status is great good fortune. The Tier 1 worker takes care of obtaining immigration authorisation without the employer’s involvement. Unfortunately however, the Tier 1 employee population is shrinking, and the scope for obtaining this status became more difficult earlier this year. The former Tier 1 (General) sub-category is now closed for new applicants, but people who previously qualified are still in the market. Some students may have Tier 1 (Post Study Work) status, but UKBA proposes to close this route. UKBA recently announced a new Tier 1 (Exceptional Talent) category. A maximum of 1,000 people will be able to qualify for this status this year but only after they have had their “world-leading” achievements or potential vetted by a designated body, such as the Royal Academy of Engineering.
Hiring an international employee can be a challenge for London companies, both large and small. Nevertheless, others are meeting this challenge because the rewards of bringing in talent from outside the UK market make it worthwhile.