Category: Articles

1. What is the new minimum salary level for sponsoring workers as Skilled Workers?

It depends on the job role. The minimum salary for a standard Skilled Worker application is rising from £26,200 to £38,700 per annum as a gross base salary. However, each job role also has its own minimum salary level that also needs to be met. For example, the ‘Business Development Manager’ role that is currently under SOC code 3545 currently has a minimum salary of £35,100. This will increase by 50% to £52,500 from 4 April under SOC code 3556.

2. When will this increase commence?

The increase will apply to any new Certificates of Sponsorship (CoS) assigned after 4 April 2024. Once a CoS has been assigned (i.e. paid for), it has to be “used” in an application within 3 months. The start date for the job cannot be more than 3 months from the date of application. The current salary level could be used for anyone starting a new position up to the end of September 2024 if managed correctly by assigning a CoS before 4 April 2024.

The Sponsor Management System will be out off service on 3 April 2024, so all CoS will need to be assigned by 7pm on 2 April 2024.

3. Can the salary include any allowances?

The minimum salary level only includes basic gross pay before income tax and including employee pension and national insurance contributions.

4. Can the salary be pro-rated?

The minimum salary is based upon a 37.5-hour week. Where the weekly hours are higher than 37.5, the salary will be pro-rated. For example, a salary of £38,700 based on a 37.5-hour week would need to be £40,248 if based on a 39-hour week.

Part-time positions would need to earn the minimum salary based on a 37.5-hour week. A 22.5-hour week, for example, would need to earn at least the SOC code minimum or the minimum salary of £38,700, whichever is higher.

5. Does this salary change apply to anyone who is already on a Skilled Worker visa?

The salary change applies to anyone being sponsored using a CoS assigned after 4 April 2024. No changes need to be made to the salaries of anyone currently being sponsored on a CoS issued before this date.

An extension application will require a new CoS, however. If an extension application is happening after 4 April 2024, then the higher minimum salary levels will then apply. If this presents an issue in terms of being able to increase the salary level at that point, it might be worth considering making the extension application before 4 April 2024, even if the employee currently has a visa with an expiry date after then.

Get in touch with Oliver O’Sullivan for any enquiries relating to skilled worker salary increases.

• Oliver.OSullivan@wellerslawgroup.com

Late Applications

The EU settlement scheme, which ran from 28 August 2018 to 30 June 2021, enabled EU nationals and their family members to remain in the UK following the Brexit vote. To date, almost 8 million applications have been made.

Nearly 600,000 applications have been made after the deadline. For scale, this is more than double the number of applications made in the Skilled Worker visa category over the same time.

How can applications be accepted so long after the deadline, and how can employers manage this scenario?

Reasonable delay

There are many reasons why there have been so many delays in applications. Many EU nationals who have been living in the UK were unaware of the need to make an application. The application being accessible via a mobile app made life easier for many people but was also an issue for those who were less comfortable with technology. Others made applications that were refused and delayed in submitting new applications and others were refused without knowing.

The Home Office advises that there remains scope ‘indefinitely’ for a person eligible for status under the EU Settlement Scheme to make an application where ‘in light of all the circumstances and reasons, there are reasonable grounds for their delay in making their application’. This means that if a person qualifies for the scheme by virtue of their residence in the UK before 31 December 2020, an application can still be made if that delay can be reasonable explained.

Where a lot of time has passed since the deadline for applications, the reasonable test becomes more difficult to provide for. Applicants need to provide objective evidence for the reason for delay for the entire period of delay. For example, if a person missed the deadline owing to illness, the evidence of illness needs to cover the entire intervening period, not only part of that period.

Right to work issues

There was no requirement for employers to check their current employees had applied under the EU Settlement Scheme, only to check those joining the company after the scheme had closed. Therefore, many companies could be employing workers who either never made an application, had an application refused, or who did make an application for pre-settled status that then lapsed. In these three scenarios these companies are employing workers who do not have permission to work in the UK.

In the case of workers who were already employed, the company is secure with having a statutory excuse against civil penalties. However, in the case of those employed post 30 June 2021, there could be EU employees in the company who do not have the right to work. Penalties for employing illegal workers are now £45k per illegal worker, so what actions can be taken?

Audit the right to work of the whole workforce. It is always a good idea to recheck that you have the right documents for every employee, and it is important not to discriminate in terms of which nationalities are audited. For any EU nationals employed after the scheme deadline, check that no applications are unresolved and check for expiry dates of pre-settled status.

Our team have audited companies small and large, and it is always seen as a positive for the Home Office to be proactively reviewing retrospectively. There is always something to remedy in every audit we have undertaken, so do reach out to us for an initial conversation about how we can support your company remaining compliant.

This article was prepared by Oliver O’Sullivan, our Head of Immigration, who you can contact by email at Oliver.OSullivan@wellerslawgroup.com or by phone at 020 7481 2422.

Huge fines for the food sector:

Between 1 July and 30 September 2023, the government issued £985,000 in illegal worker civil penalties to companies based in London and the South East of England. 47% of these civil penalties were issued to companies in the restaurant and take away sectors who were collectively fined £465,000.

With fines to individual companies as high as £90,000, the impact of employing someone illegally puts a lot of companies out of business. What is it about this sector that makes it so prone to illegal working and companies being penalised?

How civil penalties are issued:

Companies are fined for failing to take the proper steps to prevent hiring someone who does not have permission to work in the UK. Between July and September last year, companies would be issued a penalty of £15,000 per illegal worker for a first breach. This £15,000 penalty could then be reduced in increments if the company have good procedures in place to check a new employer’s right to work.

As of February this year, these first-time breach civil penalties have been increased to £45,000 per illegal worker. That same company that faced a fine of £90,000 would now be fined £270,000 for the same offence.

In some instances, either knowingly employing a person who does not have the right to work or having reasonable cause to believe a person does not have the right to work but hiring them regardless can be criminally prosecuted.

Why the food industry is vulnerable to civil penalties:

The food sector is one that is routinely scrutinised by the Home Office. It is not unusual for immigration officials to arrive at one end of a street lined with restaurants, bars and take-aways and work their way through every building, checking the right to work of all employees as they go. I once even had a client whose food factory was even visited by armed officers supporting an immigration visit.

Restaurants often have a high turnover of staff and branches where the right to work is checked by local managers who aren’t always trained. I’ve worked alongside a major global fast-food restaurant to develop training materials and policies across their branches and helped with double checking right to work for candidates and seen first hand the issues faced by human resources in managing restaurants.

Restaurants are often looking for the best talent for a specific cuisine. One restaurant I represented required a very niche set of skills in their chefs that was only commonplace in a particular region of India. Chefs can be sponsored under the Skilled Worker visa scheme, but the minimum salary threshold is set above the median of the market rate. Currently that minimum salary is £26,200 per annum based upon a 39-hour week but will imminently rise to £38,700 per annum. Hiring chefs will soon become a lot more expensive.

The risks with the restaurant sector centre on policies with regards who is hiring and who is then checking the right to work of new employees, which is where the disconnect often lies.

What can be done to mitigate the risk:

A company can mitigate the risk of civil penalty by having best practice procedures for checking the right to work and assuring that all relevant hiring managers are trained to the same level. The documents then need to be safely stored, either digitally or physically.

Companies should be familiar of what happens in a Home Office inspection and how to be prepared for one. It is always a good idea to take stock and audit your own documents and processes to understand where any remedial actions need to be taken.

Companies should understand who their employees are, which might mean clarifying the position of some members of the workforce.

Our team has great experience with working with restaurants, fast food chains, bars and public houses. We have undertaken mock inspections, reviewed and rewritten policies and procedures and most of all been on hand to provide advice as and when it is needed.

If you have any concerns about your workforce, we would love to hear from you.

This article was prepared by our Head of Immigration, Oliver O’Sullivan who you can reach via email at Oliver.OSulivan@wellerslawgroup.com or by phone 020 7481 2422.