UK immigration: What should tech employers consider in 2022? - Part 2

As discussed in the previous blog in this series, the UK tech sector has been resilient despite Brexit and the pandemic, and there is no doubt that during these challenging times, technology has been an enabler for individuals, companies and communities and has facilitated new ways of working.

With the number of tech vacancies continuing to steadily rise, access to talent through a migrant workforce will remain a key topic of discussion for the tech sector in 2022 and beyond.

Last week we focused on remote working here. What else do employers in the sector need to be aware of?

Right to Work Checks

This year will bring more change for UK employers with a migrant workforce, as the Home Office is moving closer to streamlining processes by using online facilities.

Prior to the pandemic, most employers onboarding new recruits carried out manual checks on passports and right to work documents, accompanied by a face-to-face verification of their employees. In response to the pandemic, in March 2020 the Home Office introduced a COVID-19 adjusted right to work process, which allowed employers to carry out virtual checks via video link with their new recruits. This adjusted process will remain in place until 30 September 2022, inclusive.

From 06 April 2022, employers must use the Home Office’s online service when conducting right to work checks on migrant workers who hold a Biometric Residence Permit (BRP), Biometric Residence card (BRC) or a Frontier Worker Permit. While retrospective checks are not required where a valid manual right to work check was completed up to and including 05 April 2022, if employers have used manual checks on a BRP or BRC, they must conduct follow-on checks online before the expiry date on the biometric card. It is, therefore, imperative that robust tracking systems are in place and that employers are familiar with how to use the online checking service.

Traditionally, manual right to work checks have been the only option for employers hiring UK or Irish nationals. To be more aligned with hybrid working practices and to permit employers flexibility, the Home Office are also introducing a new facility that employers can use for these nationalities.

From 6 April 2022, UK employers will also be able to use certified Identity Service Providers (IDSPs) to digitally verify the identity of workers, including UK and Irish nationals. Certified IDSPs are approved companies responsible for validating the identity of a prospective employee on behalf of an employer. This will remove the need for the employer to see original documentation, although they will still need to verify the likeness of the employee. Should businesses wish to utilise this option, they must consider and budget for additional costs for the use of IDSP facilities.

Migration Advisory Committee: Annual report, 2021

The Migration Advisory Committee (MAC), the independent public body that advises the Government on migration, published its annual report in December 2021. The Home Office is not obliged to adopt the MAC’s recommendations but has accepted their recommendations in the past, so the following may inform future developments.

The MAC made three key recommendations relevant to tech employers:

• The first recommendation is to allow Intra-Company transferees access to permanent residence in the UK, a route that currently does not lead to settlement. Employers with Intra-Company transfer migrants may, therefore, need to prepare for employees to approach them regarding whether they would financially support such an application.
• The second recommendation is not allowing jobs on the Shortage Occupation List (SOL) to be paid lower salaries than the ‘going rate’. Many tech roles currently fall into the SOL and under current law, these roles may be paid 80% of the going rate for the occupation code. Based on data from 2021, only 15% of roles on the SOL paid below the going rate, but the MAC note that if there is a shortage in the occupation, lower pay will not necessarily address the issue. In addition, the purpose of the ‘going rate’ is to prevent resident workers being ‘undercut’. They suggest that the salary reduction should instead only apply to the general threshold of £25,600. They also recommend that the lower salary threshold is only used for lower paid occupations on the SOL.
• The third recommendation is to review the ban on employment for asylum seekers. Under the current law, asylum seekers cannot work in the UK while their applications are pending, although there is a provision to apply for permission to work in roles on the SOL: if they are waiting for a decision after a year, they can apply for permission to work. The MAC says a delay in access to the labour market does long-term damage to integration, and notes that there is no evidence that work rights would be a pull factor to the UK.

If the changes are implemented into law, employers would benefit from the flexibility and have more access to overseas workers. The Home Office would need to adopt the MAC’s recommendations into law for them to become effective, and it is currently unclear if or when that might happen. Nevertheless, businesses should be mindful of these recommendations and the potential impacts outlined above.

Need to know more?

Despite the Home Office’s advances in streamlining the UK immigration system, navigating the rules and guidance can be daunting for employers who want to employ global talent—but it doesn’t need to be a painful process.

Fragomen can fully support your business as you navigate immigration requirements surrounding remote working policies and right to work checks. Our highly experienced team can also offer support on applications under the UK Immigration system, including Skilled Worker and Intra-Company transfer applications, plus the raft of new categories expected in 2022—taking away the stress so that you can focus on other areas of your business growth and product development

If you and your business need assistance, please contact Laxmi Limbani at [email protected]

This blog was published on Tuesday, 19 April 2022 and the UK’s Immigration Rules change frequently. 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.