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Now more than ever, UK manufacturers with a non-EU workforce must be up to speed on immigration regulations.

The UK’s immigration policy remains a politically controversial topic. Complying with UK immigration law is a convoluted process for businesses who are increasingly finding themselves subject to civil penalties and the suspension or revocation of their sponsorship licences for non-compliance with the current immigration policy. The manufacturing industry relies heavily on a non-EU workforce, and businesses simply cannot afford to make any error that may result in the loss of their sponsorship licence.

In 2017, £39.5 million in civil penalties was issued to sponsors, over 750 tier two sponsorship licences were suspended and 605 tier two sponsorship licences were revoked altogether. It is therefore now more important than ever to ensure that businesses are fully aware of the UK immigration regulations on employing and sponsoring non–EU nationals, to prevent unduly harsh civil penalties and delays in processing applications, as well as avoiding unnecessary stress.

There are two main ways that a business can sponsor non–EU nationals to enter or remain in the UK as their employee:

  1. If the prospective employee’s position does not appear on the Home Office’s “Shortage Occupation List”, businesses must initially complete the Resident Labour Market Test (RLMT). The RLMT includes advertising the position for 28 days, interviewing candidates that meet the advert requirements, and then applying for a “Restricted Certificate of Sponsorship” (RCoS). Once the RLMT has been completed, and if it is established that the best candidate for the position is a non-EU national, the sponsor must apply for an RCoS.
  2. If the prospective employee’s position is listed on the Home Office’s “Shortage Occupation List”, businesses do not have to carry out the RLMT. Examples of positions in the manufacturing industry which currently appear on the “Shortage Occupation List” include electronic engineers in automotive manufacturing and design; aerospace production and process engineers; and design and development engineers. 

From 6 April to 5 April of the following year, there are 20w,700 RCoSs available for employers to sponsor non–EU skilled workers. The RCoS’s are split into unequal monthly allocations. For example, from April to September 2017 there were 2,200 monthly allocations, but from October 2017 to February 2018 there were only 1,500, and in March 2018 the monthly allocation was just 1,000.

Employers who wish to assign a RCoS to a skilled non-EU national must first apply to the Home Office for a RCoS as part of the monthly allocation cycle. The request must be submitted by the 5th of the month. The Home Office panel meet on the 11th of the same month to decide who will be granted the RCoS.

Applications for occupations that are currently on the “Shortage Occupations List” and PhD occupations are given priority. The rest of the applications are then assessed on the basis of their salary. In essence, the higher the salary the more likely an RCoS will be granted.

Unfortunately, from December 2017 to March 2018, the monthly allocations have already been reached. As a result, hundreds of organisations have not been provided with the RCoS they need in order to employ the non–EU national. In March 2018, RCoSs were not granted if the salary was below £60,000 unless the application was for a PhD level position, a position that was on the “Shortage Occupations List”, or where the RCoS application was prioritised for other reasons.

A possible solution to this problem was to increase the prospective employee’s salary so that an application for an RCoS may have a higher prospect of being granted. However, if the employer is considering this option, it is vital that they check that the salary offered falls within the range stated in the adverts that were posted. If the new salary is higher than the salary offered on the advert, the RLMT must be completed again to show the increased salary.

One of the requirements that must be met under the RLMT is that the vacancy is advertised (for at least 28 days) within 6 months before the RCoS is assigned to the non-EU national.

As mentioned above due to the delays in granting RCoSs, applications run the risk of being granted after their RLMT has expired. As a result of this, if an employer assigns an RCoS to a non-EU national after the expiration of that six month period, the employer would not be compliant with the current Home Office guidance regarding sponsoring non-EU nationals. As a result of this, their sponsorship licence would be revoked.

It is likely this that this issue would not be picked up on at the time of the RCoS being granted, but instead at the time of an unannounced post licence compliance visit when the non-EU employee has been employed by the company for perhaps several months, and has become an integral part of the business.

It is apparent that the immigration process involved in employing non–EU nationals is convoluted. Despite this many businesses rely on non-EU nationals to develop and grow varying aspects of their businesses, as clearly indicated by the number of RCoSs that have been applied for since December 2017 to present.

Employers must remain compliant at all times, as it is inevitable that businesses will be subject to unannounced Home Office compliance audits. Businesses must be aware of all the responsibilities applicable to them as sponsors, or risk high fines and the complete loss of a non-EU workforce that figures show is indispensable to the manufacturing industry.

Published: April 2018

Focus on Manufacturing - Edition 7

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Mandeep Khroud