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Tier 2 - is the UK's immigration system ready for Brexit?

View profile for Alison Banerjee
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Trying to get a Tier 2 work permit in the UK often results in a tangle of red tape and hoops to jump through. Tier 2 has been described as a logistical ‘fortress’, designed to disincentivise employers and reduce the number of migrant workers taking jobs in the UK. Opposing the relaxation of Tier 2 regulations and the free movement of European Economic Area (EEA) workers across borders was central to the Leave campaign in the 2016 EU referendum. But, with the Brexit process under way, is legislation in place to plug the gap?

Currently, millions of EEA workers side-step the Tier 2 legislation because they are from an EEA country and, while the UK remains in the EU, they have a right to travel to the UK and take a job, providing they pay tax and NI. Currently, they do not require permission from the Home Office to work in the UK but, following Brexit, that may change.

 

What is Tier 2?

UK-based companies wanting to employ a non-EEA worker can apply for a sponsorship licence. To do this, they must demonstrate that their HR systems let them ‘monitor’ employees, including their immigration status. The employer should be able to keep copies of relevant documents, including passport and right to work information; track and record employees’ attendance, keep employee contact details up to date and report to UK Visas and Immigration (UKVI) if there is a problem, for example, if the employee does not come to work once they have entered the country or stops coming to work.  Some view this as a method for outsourcing responsibility for control issues to the employer.

Four types of Tier 2 visas are available – one facilitates inter-company transfers, particularly if the company has offices overseas; and one to allow new non-EEA workers, not already working for the company, entry to the UK to take up a position.  The remaining two apply to sportspeople and ministers of religion.

Once an employer has a sponsorship licence, they can apply for and issue a Certificate of Sponsorship to the employee which allows them to apply for a Tier 2 UK visa. The certificates are restricted (Tier 2 (General)) or unrestricted (Tier 2 (Intra-Company Transfer). The latter allows greater freedom to those already working for the company overseas, whilst workers earning above a set amount also have fewer hurdles to jump.

 

An administrative nightmare

The number of Tier 2 (General) certificates are restricted nationally. A points-based system kicks in if the monthly quota is reached. The skill level required for the job may be considered and whether there is a shortage of UK-based candidates for that particular post.

The administrative challenge is significant and explains why so many companies try to avoid Tier 2 altogether. The British Chambers of Commerce has described the system as ‘riddled with complexity’ and a burden on businesses.

 

The Skills Drain

Following Brexit, businesses will face more red tape if they want to employ foreign workers. The process began in April 2017 with the implementation of a £1,000 Immigration Skills Charge per worker per year of their visa, levied against larger companies, with the fees going towards training British nationals. For businesses reliant on an international workforce, particularly banking and finance, the effect may be to drive them out of the City of London to financial centres in the EU, such as Paris and Frankfurt.

If the Conservative manifesto pledge to double the charge to £2000 goes ahead, the trickle of skilled international workers flowing to Europe could become a flood. A subsequent reduction in immigration figures may have serious long-term implications for the UK economy.

 

Legal tangles

Immigration laws concerning visas and Certificates of Sponsorship are notoriously complex and bureaucratic. Therefore, it is important to take good legal advice as certificates can easily be revoked by the Home Office for any number of reasons. Something as simple as paying a Tier 2 migrant in cash, rather than through a bank transfer or direct payment, could invalidate a licence, as could failure to comply with any sponsor duties.

The future is uncertain. Nobody yet knows what ‘taking back control’ of borders really means, and just how this will affect both EEA workers and non-EEA workers alike. The UK has less than 18 months to resolve these issues or potentially be faced with a workforce in legal limbo.

If you would like to discuss any of the issues raised in this article, please contact our Employment team on 01733 888888 or email enquiries@buckles-law.co.uk

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