Preparation is key

As the North Sea resurgence fuels a recruitment drive into the region, Anne Morris warns employers to proceed with caution to avoid scrutiny from Home Office immigration enforcement

Hiring specialist workers from overseas has become a mainstay of workforce planning for energy, oil and gas companies with UK operations.

As activity in the North Sea steps up, employers are bringing more talent into the region. Where vacancies can’t be filled by UK-resident workers, companies are relying on skilled nationals from non-EEA countries to work under the Tier 2 visa route.

While international recruitment offers an immediate workforce solution for energy companies, it also brings a number of practical challenges.

Rigid visa processing
The UK’s immigration regime is far from conducive to the commercial needs of global energy companies, whose recruitment and mobility requirements demand agility, flexibility and pace.

The process of hiring non-EEA nationals under the Tier 2 visa route, however, is protracted and frustrating. Emergency and short-notice recruitment of visa nationals in response to important or urgent needs is simply not supported by Home Office processing.

Tier 2 visa applications for skilled workers are reviewed only once a month by the Home Office, on the first working day after the 10th of every month. To be considered for that month’s allocation, employers have to ensure their Tier 2 application(s) are made by the 5th of that same month.

Applications submitted after the 5th have to wait until the next month’s allocation date for consideration – with no guarantee the application will ultimately be successful.

In practical terms, these timeframes clearly have to be factored into companies’ recruitment and onboarding planning and expectations. All personnel involved in recruiting personnel (HR, operations managers, project managers and others) should be made aware of the process restrictions. Visa documentation preparation and application planning need to be in synch with the Home Office schedule to avoid missing the limited window.

HR compliance risks
Reduced recruitment levels and lower numbers of migrant employees within the sector over recent years have seen employers dedicating fewer resources to compliance and managing immigration risks.

Fall foul of UK immigration rules and employers face Home Office enforcement action and penalties, including fines of up to £20,000 per illegal worker and suspension of the company’s sponsor licence and permission to employ overseas workers.

Employers currently recruiting under Tier 2 should be assessing the status of their organisation’s sponsorship licence to ensure it remains up to date and compliant with Home Office regulations.

Standard working practices could also be exposing organisations to enforcement action.

Sponsor licences are highly prescriptive in specifying what sponsored workers can and cannot do under their Tier 2 visa, covering, for example, working hours, location and duties.

Sponsored employees can only carry out tasks that correspond directly to the job description and the assigned Standard Occupational Classification (SoC) code. In practice, this can render ostensibly reasonable and accepted working practices non-compliant, such as the Tier 2 worker providing temporary relief support at a different site.

Should the Home Office conduct an unannounced inspection of your premises – a commonly used tactic by enforcement officials particularly when considering sponsor licence renewal applications – and find any sponsored employees present and working outside of their permission, this would be considered grounds for enforcement action.

Similarly, working hours must reflect the licence-approved working pattern. Significant and consistent overtime working for example would be considered non-compliant.

Effective record keeping is also a top priority as the Home Office relies heavily on employer documentation for immigration enforcement purposes. This means copying and retaining ‘right to work’ documents in the correct manner and ensuring the information on your Sponsor Management System (SMS) is updated with employee and organisational changes within prescribed timeframes.

The Home Office has the right to request employee documentation for up to two years after an employee has left your employment. Deleting or destroying personnel records before this date will be regarded as a breach of your right to work duties.

The Home Office has the ability to cross-reference the information it holds with individuals’ HMRC records. This is providing unprecedented quality of intelligence, which in turn is leading to more informed immigration investigations into Tier 2 employers.

One particular area of concern relates to Tier 2 worker salary payments. The minimum salary level is a highly contentious requirement of the skilled visa route, and is currently the subject of a government-commissioned review into how it can be better structured to meet industry needs. This could see the introduction of regional weighting, with employers in Scotland for example having to meet a lower salary threshold to reflect local labour market salary levels.

While the salary threshold remains under review, employers should ensure they continue to observe the current salary requirements by paying the full amount as proffered under the initial application. Employers routinely deducting visa costs and other recruitment expenses from employees’ salaries are acting in breach of both immigration rules and employment law legislation.

Preparing for post-Brexit reform
As the Government formulates the detail of a new immigration system timetabled for 2021, employers should be looking now at how their recruitment strategies, budgets and processes will be impacted by the biggest overhaul in the UK immigration rules in recent times,

Preparation will be key. Ensuring your immigration practices are up to date and compliant will position you well to adapt to the changes and take a competitive stance within the talent market.

Anne Morris is the founder and managing director of immigration law firm DavidsonMorris, a leading provider of UK immigration support to the energy and petrochemical sector. From offices in Aberdeen, London, Cambridge, Manchester and Birmingham the firm helps clients ensure their global mobility programmes are both fully compliant with UK immigration requirements and strategically effective in supporting the commercial operations of large, multinational corporates.

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