The End of the Offshore Wind Workers Concession

The Offshore Wind Workers Immigration Rules Concession (“the Concession”) was introduced in 2017. The Concession provides leave to enter to workers essential to the construction and maintenance of wind farms in UK territorial waters. After a series of extensions, the Concession is set to end on 30 April 2023, and it is critical that affected businesses regularise their workforces prior to this date.

From 1 May 2023, foreign nationals currently working under the Concession will be subject to the UK’s immigration rules, and action is required now to prevent illegal working issues. As the Concession sits outside the immigration rules, individuals currently working in the UK under the Concession will need to depart the UK and make an application from a country where they have residency rights; with this in mind there is very little time left to regularise impacted workers’ status prior to the Concession closing at the end of April.

While some of these workers may be able to explore non-sponsored visa options, it is likely that businesses currently relying on the Concession will require a UK sponsor licence. Given the lead time it typically takes to secure a licence (which is in addition to the visa process for sponsored workers), we want to highlight the below considerations.

Sponsor licence process

To become a licensed sponsor, a business must:

1. have an operational and trading UK entity or UK establishment;
2. provide the corporate documents and information required in Appendix A; and
3. have employees or office holders based in the UK, who can fulfil the key personnel roles of Authorising Officer, initial Level 1 User and Key Contact. For a business without onshore operations, it can be difficult to fill these roles and creative solutions may be needed.

The business also needs to determine the visa routes it wants to be licensed in, such as:

• Skilled Worker (SW) – usually for new hires to the business. This route has an English language requirement;
• Global Business Mobility (GBM) - Senior or Specialist Worker – usually for existing employees transferring to the UK. Unlike the SW route, it does not have an English language requirement, and may be preferred by businesses with employees working under the Concession who have not been required to evidence their English language ability; and
• GBM - Service Supplier – usually for employees on temporary assignment in the UK doing contractual work covered by a relevant international trade agreement. This route may be suitable for businesses with no UK presence or qualifying staff who can hold the key personnel roles described above, as it allows employees to be sponsored by the contracting UK entity (who must also hold the licence).

Regardless of the route(s) chosen, it can take weeks to gather the documentation and information required. The sponsor licence application is filed online, and the fee paid at the time of filing. A submission sheet is generated automatically on filing and must be included with the document bundle sent to UK Visas and Immigration (UKVI) within five working days.

The standard processing time is up to eight weeks, but a paid priority service is available (capped at 30 places per day), which reduces the consideration time to 10 working days.

Once the licence is in place, certificates of sponsorship can be assigned, and visa applications filed – both processes are subject to their own preparation and processing times.

Post-Licence considerations

Once a sponsor licence is in place, holders are subject to compliance duties which fall under five key areas:

1. monitoring immigration status and preventing illegal work;
2. maintaining employee contact details;
3. record keeping and recruitment practices;
4. employee tracking and monitoring; and
5. general sponsor duties and professional accreditations.

These requirements are ongoing, and UKVI can visit a sponsor as part of the initial application or at any time during the life of the licence to check compliance. Upkeep is required to ensure that compliance is maintained.

For sponsors with large, sponsored populations, multiple branches, or decentralized HR processes, this can become a complex undertaking. Some of these areas also pose unique challenges to businesses operating in offshore wind, as considered below.

Right to work (RTW) checks

Area 1 includes conducting RTW checks, which all UK businesses must complete before an employee starts work. Failure to do so puts an employer at risk of financial penalties and the loss of their sponsor licence, and, in serious cases, criminal liability. An employer must conduct a valid RTW check in one of three ways: the UKVI online RTW check service, a manual RTW check or via the services of an Identity Service Provider (IDSP) – see our previous blog post on the topic for further detail.

For manual RTW checks, original documents proving an employee’s identity and RTW must be sighted in-person, creating difficulties where employees join a vessel directly. Employers who wish to digitise the process should consider using an IDSP.

Other compliance considerations

UKVI does not mandate specific methods to manage compliance, leaving sponsors with flexibility in designing and implementing their processes. Areas 3 and 4 include requirements to track employee whereabouts, record absences, and report on employee change of circumstances. With some businesses operating on a fly-in fly-out / rotation basis, it is critical to have systems in place to ensure that sponsored employee’s locations are known and can be accounted for in an audit scenario.

Detailed record keeping requirements mean that businesses need robust processes to ensure that correct documents and information are obtained and stored and can be presented upon request.  

If a sponsor is found to have failed to comply with its obligations, the sponsor licence could be downgraded, suspended, or revoked, all of which will affect the sponsored employee population with varying degrees of severity.

Planning ahead

With the scheduled end of the Concession quickly approaching, now is the time to implement a plan to regularise and retain your current workforce and to attract foreign nationals post-Concession. As a solution to the end of the Concession, a sponsor licence is an asset that can provide businesses with that all important business continuity.

Fragomen will host a webinar addressing the end of the Concession as well as highlighting the issues outlined in this blog on Thursday, 30 March 2023 at 11am BST. Interested attendees can register, free of charge, to attend here.

Need to know more?

For further information on the sponsor licence process, please contact Associate Evan Tutton at [email protected], Manager Sian Saunby at [email protected] or Fragomen’s Compliance and Audit team at [email protected].

This blog was published on 21 March 2023, and due to the circumstances, there are frequent changes. To keep up to date with all the latest updates on global immigration, please visit our dedicated COVID-19 site, subscribe to our alerts and follow us on LinkedIn, Twitter, Facebook and Instagram.