Pressure Mounts on Recruitment of Key Overseas Talent

Employers looking overseas to fill vacancies for skilled and senior roles have been facing difficulties over the last few months with restrictions starting to bite on the popular Tier 2 (General) immigration category.

An annual cap of 20,700 new entrants to this category has been in place since 2011 and is managed by a proportion of Certificates of Sponsorship (CoS) being released to sponsors every month.  However, apart from a five-month period in 2015, the cap had never been reached, but that changed in December 2017 and the cap has now been reached every month since.  The increase in demand is thought to come principally from the NHS with hospitals struggling to retain and recruit doctors and nurses from EEA countries, turning to Tier 2 to fill vacancies with non-EEA nationals.

What happens when the monthly cap is reached?

If the monthly cap is reached then CoS are allocated on the basis of a points-scoring matrix (this is the Points-Based System, after all!), with more points awarded for jobs on the Shortage Occupation List, jobs which are at PhD level, jobs which meet requirements for “new graduate jobs or internships”, jobs in a defined “public service occupation”, and finally on the basis of salary.  This means that in most cases the availability of a CoS in months where demand exceeds supply will be based purely on how much the sponsor is prepared to pay.  When the cap was reached in December 2017, a minimum salary of £55,000 was required where the type of job did not qualify for an award of additional points.  In January and February it was £50,000 and in March it was £60,000.

What steps can sponsors take?

Demand is not currently so high that roles on the Shortage Occupation List or at PhD level will be affected by the cap.  Similarly, jobs which score additional points as “new graduate jobs or internships” or “public service occupations” are less likely to be affected.  Sponsors should, therefore, consider whether their vacancies can claim additional points under any of those headings.  However, artificially restructuring a job just to claim additional points is prohibited and would lead to compliance action if the Home Office believe that is what has happened.

Otherwise, sponsors should look at the points their application will be awarded and consider whether an increase in salary might be justified in order to score more points.  Do note though that the salary specified on the restricted CoS request must be in line with the rates specified or indicated in any required advertising exercise.

Sponsoring graduates on Tier 4 visas does not fall under the cap; nor does recruitment of workers who have Tier 2 (General) leave because they are working for another sponsor.  Alternatively, if a sponsor has operations overseas, they may wish to consider sponsorship under the Tier 2 (Intra-Company Transfer) category which is also unaffected by the cap.  Do note though that the requirements for that category must be satisfied and in most cases, intra-company transferees will need to leave after 5 years.

Tom Brett Young is an immigration specialist at VWV, a national law firm with a growing office and presence in Birmingham. Tom and a team of specialist immigration lawyers provide assistance across the full range of immigration issues which affect employers. Tom can be contacted on 0121 227 3759 or at tbrettyoung@vwv.co.uk.

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