If you are in
business, there may be many reasons why you would seek to, or even need to,
employ a person from overseas, particularly in the globalised economy in which
we all now live. This could be for any number of purposes, including:
- For a job
requiring specialist skill (for example, technical or language skills) that is
not available in the local labour market;
- To fill vacancies
for jobs in a designated ‘shortage occupation’. This has been applied to
nursing care in recent years in Northern Ireland, and there have been a number
of visas granted to overseas nurses;
- To facilitate
secondments or transfers from an overseas branch of the same company. US and
other foreign companies operating in Northern Ireland will be familiar in
particular with seeking overseas staff for this purpose;
- To fill temporary
vacancies requiring a pre-existing skill set, or to fill unskilled or
low-skilled vacancies due to labour shortages.
After Brexit, the
talk is that the UK will move entirely to a points-based system of immigration
control. The UK already operates a points-based system for migrants coming to
the UK from outside of the EU. This has been in place since 2008. Under this
present points-based system, there are five tiers:
Tier 1 Highly-skilled
individuals, entrepreneurs and high net-worth individuals
Tier 2 Skilled
workers in a shortage occupation who have a job offer
Tier 3 Low
skilled workers for temporary labour shortages (although this Tier has never
been used because of the strong labour supply from EU/EEA countries)
Tier 4 Students
Tier 5 Youth
mobility and temporary workers: people allowed to work in the UK for a limited
period of time to satisfy primarily non-economic objectives.
As its name implies,
migrant workers are required to score a certain number of points under the
system in order to obtain permission to enter, or remain, in the UK and the
points criteria differ for each tier.
Post-Brexit, it is
likely that the vast majority of EU nationals who wish to come to work in the
UK, would fall within Tiers 2-5 of the points-based system. Thus it will be
important for any business who might wish to employ such individuals, post-Brexit,
to realise that they may require to apply for a licence to employ them, from
the UK Home Office, as such employees will likely require sponsorship by the
employer.
At present, only
employers registered with and licensed by the Home Office are permitted to issue
Certificates of Sponsorship (CoS) to a named individual, who must then apply
for permission to enter the UK. The employer must have undertaken a strict
verification exercise in order to issue a CoS.
However, in Northern
Ireland we may be in a peculiar legal position depending upon whether an
agreement is reached with the EU on the terms of the UK’s withdrawal and if it
is, what those terms will be. It is interesting in this context that the UK
government is presently proposing an amendment to the proposed ‘backstop’,
which would involve Northern Ireland remaining within the Single Market, but being
outside of the Customs Union with the rest of the UK. This is interesting
because under the European Economic Area Agreement, Norway, Iceland and
Liechtenstein are all part of the single market but these countries are not
members of the EU. However, this arrangement involves these countries accepting
rules set by the EU. In particular, apart from Liechtenstein, EEA (single
market) membership includes accepting free movement of people from other EU/EEA
countries. Is it therefore still possible that free movement of people (from
other EU/EEA countries) would still apply to Northern Ireland, but not to the
rest of the UK?
In any case, going
into the post-Brexit landscape, all businesses who may wish or have need to
employ migrant workers from within the EU (or even outside of it, if they are
seeking to do so for the first time) would be best advised to seek legal advice
from a skilled immigration law adviser, about what licence might be required.
Worthingtons can offer such a service to all business clients.
Brian Moss is a solicitor in Worthingtons Solicitors,
Belfast who specialises in immigration law. For legal advice please telephone
028 9043 4015 or email [email protected].
028 9043 4015 