How to hire a foreign worker

Want to hire non-EU workers? New laws mean the process is changing

What does this mean for UK businesses seeking to employ non-EU nationals? Leading London employment lawyer Rodney Hylton-Potts explains.

The changes – and their implications:

Previous Tier 1 (General) visas

These have been abolished and replaced by the “Tier 1 (Exceptional) Talent Visa scheme”. Only 1,000 applicants may receive these visas per year. To qualify, they must be internationally recognised as a world leader in the arts and sciences, or possess potential world-leading talent in the arts and sciences.

A score of 75 points must be attained under the new system. All points are scored under only one requirement: the applicant must have an official endorsement by a “Designated Competent Body”.

This is bad news for businesses, since the old Tier 1 General visas were associated with individuals, not jobs. This allowed the visa holder to move into whichever job they liked without their employer having to apply for a new visa.

Previous Tier 2 (General) and Tier 2 (Intra-company transfer) visas

Visas available in this category have been capped at 20,700. Those earning more than £150,000 a year will not be included in the cap. It is now more difficult for the applicant to gain points under prospective earnings and the minimum salary to gain points has been increased to £20,000.

The “established staff’ sub-category of Tier 2 (Intra-company transfer) is now abolished and replaced with two new sub-categories: short-term staff and long-term staff.

All non-EU nationals hired by a UK company will have to come in under a Tier 2 Visa. The number of Tier 2 visas has been increased with the new cap to take account of the reduction in those entering on Tier 1 visas.

However, the increase is not substantial enough. There will be a shortfall of 7,400 visas in total. Additionally, employers seeking to hire non-EU nationals on Tier 2 visas must first prove that the skills couldn’t be found at home. This involves passing the resident labour market test, requiring advertising the job for four weeks.

So what do you have to do to hire non-EU talent?

To employ a non-EU skilled migrant under a Tier 2 visa, employers must ensure the job fulfils the requirements laid out in the relevant code of practice. These codes can be found on the UK Border Agency web site and specify the skill levels and salaries required needed to qualify.

Having established that the job fulfils the skills and salary conditions, employers must then complete the resident labour market test and show that no suitably qualified settled worker can fill the job.

This must be satisfied for any job that is not on the list of shortage occupations, does not have a salary of over £150,000 and is not aimed at existing employees.

To complete a resident labour market test, the employer must ensure that they comply with the advertising methods permitted by the code of practice for the sector/job.

How long can workers stay in the UK?

Non-EU workers coming to the UK under Tier 2 will, initially, be given permission to stay for up to three years, depending on the length of their expected employment in the country. The migrant can then apply to extend their permission to stay if they continue to have a sponsor.

Employers must, essentially, jump through a number of loops and in particular, fulfill the onerous resident labour market test to employ non-EU nationals. But, before they do this, employers will have to apply to be sponsors and then they will be allocated with a number of “restricted” certificates they can then use to sponsor non-EU nationals.

The new laws, designed to protect British interests, may, in fact, result in limited labour choices for businesses already battling with the harsh economic times.