New skilled worker route more restrictive than it seems, warn experts

Despite a removal of the resident labour market test and relaxation of the cap on this type of employee, ambiguous criteria and high minimum salary thresholds could work against firms  

New skilled worker route more restrictive than it seems, warn experts

The government’s skilled worker route for employing staff from overseas once the UK leaves the EU at the end of this year, could be “more restrictive than it might appear on the surface”, according to experts responding to the publication yesterday (13 July) of further details on key immigration routes post Brexit.

Home secretary Priti Patel gave details in a ministerial address and a 130-page document on the UK’s points-based immigration system, which confirmed that workers will need to have a job offer from a licensed sponsor and set out the minimum salary threshold for each occupation within the skilled worker route. 

According to the document, people who want to live and work in the UK will be able to apply for a visa under the skilled worker, global talent or start-up and innovator routes. 

The document revealed that the government has removed the resident labour market test, which previously required employers to advertise any job not on the shortage occupation list – with at least two adverts placed – to ensure there were no suitable workers already living permanently in the UK. 

But sponsors will still need to prove they’re filling a genuine vacancy, with no detail on how this will be assessed or how employers will be assessed, which could be problematic, warned Gary McIndoe, managing director and solicitor at Latitude Law.  

“I anticipate the government will introduce certain rules, which will exist for a while, then there will be a perception that things are misused or abused and the government will clamp down or introduce subjective tests to assess genuineness,” McIndoe said. 

Get more HR and employment law news like this delivered straight to your inbox every day – sign up to People Management’s PM Daily newsletter

He said this ambiguity around how to demonstrate a ‘genuine vacancy’ could particularly disadvantage smaller organisations. “This is dangerous because it’s always going to discriminate against smaller employers, which find it harder to justify than larger employers,” he said.

“My concern is that SMEs will probably suffer if things are tightened up in the future – the first half of 2021 will be fine, but after that I don’t know how things will pan out.”

The document also revealed a suspension of the cap on the number of people who could come to the UK on the skilled worker route, but reserved the right to reimpose it. This again left employers in a potentially precarious position, said McIndoe.

“From a political standpoint this is all about perception,” he said. “When the government publishes migration figures and suddenly they’ve gone through the roof because of a much more accessible system, you might get certain commentators saying too many people are coming into the UK, so the government reserves the right to reintroduce the cap in those circumstances.”

The document also set out the minimum salary threshold for each occupation within the skilled worker route for the first time. When the Home Office previously revealed the core principles behind the forthcoming points-based system earlier this year, the requirements stipulated were an A-level equivalent education and a minimum earnings threshold of £26,500. But yesterday’s document showed this threshold would in reality be higher for most occupations.

“What that table shows is that the minimum salary threshold is for the majority of occupations higher, and in some case much higher, than the £25,600 minimum salary threshold, which shows the system is more restrictive than it appears on the surface,” said Gerwyn Davies, senior labour market adviser at the CIPD.

“It shows the degree of restriction many employers will face in relation to some of those skilled worker routes.”

Some experts sounded a more hopeful note on the detail revealed, however, particularly in relation to the suspension of the cap on the number of people who could come to the UK on the skilled worker route.

Having no cap and no need to advertise the vacancy in the UK first, meant sponsors should find it quicker to recruit from overseas, said Jonathan Beech, managing director of Migrate UK. But employers should still apply for sponsor licences as soon as possible, he added.

“There is no mention in this document of the licence application process having changed, and employers are still being encouraged to apply as soon as possible if they need to employ medium and high-skilled workers for next year,” he said.  

“Considering less than 3 per cent of UK employers currently have a licence, this is going to be a huge task for employers and the Home Office to undertake.”

The government’s removal of some of the bureaucracy surrounding the skilled worker route would speed up the process of bringing workers to the UK and alleviate the administrative burden faced by sponsors, agreed Chetal Patel, partner in the immigration department at Bates Wells. 

However, she added that “employers [were] still going to have to pay for the privilege of sponsoring workers and it’s not cheap”.

“This is a timely reminder of the huge cost for employers,” said Davies. “The fee structure [set out] shows the range of costs and the scale of costs... of bringing a family of four over, for example.”

The document also unveiled a fast-track health and care visa that reduces the fees and provides fast-track entry for doctors, nurses, paramedics, social workers and other healthcare professionals coming to work in the UK. However, it excludes frontline care home workers and contractors.

“It’s a disappointment to see lower-skilled workers, such as care workers and care assistants who have played a vital role in our society over the last few months, are not catered for under the new system,” said Patel. 

Also absent from yesterday’s announcement was more detail on visas for partners and children joining settled persons in the UK. Beech said he hoped there would be further announcements from the government regarding this. 

There was also no mention of the UK continuing to participate in the Youth Mobility Scheme after leaving the EU – a reciprocal system that allows 18 to 30-year-olds to live and work in the UK for a period of up to two years without the need for a skilled worker visa.

“This would allow employers to recruit workers from outside the EU for two years without a job offer, which would have been a useful substitute for organisations and a safety valve for employers with recruitment difficulties, especially in some of the most labour-intensive sectors, such as recruitment, hospitality and retail,” said Davies.

Yesterday’s document set out plans for after freedom of movement with the EU ends in January 2021. It is expected the bill will receive Royal Assent in autumn, after going through the House of Lords.