Following SESCA’s international recruitment webinar series (September 2023), we’ve compiled the ten most frequently asked questions, together with comprehensive answers from leading immigration specialists at JMW Solicitors.
- I have interviewed a candidate who is under a Skilled Worker Visa and has said that she has not been provided with enough hours by her current employer. She is seeking to work an additional 20 hours a week to make up a shortfall in hours and to supplement her salary. Can I employ her?
ANSWER:
This seems to be a particular issue when employing domiciliary care workers, home care workers and care workers, especially where the salary and hours prescribed on the Certificate of Sponsorship are at the minimum levels permitted by the Home Office; i.e. £20,960 based on a 37.5 hour working week.
For any prospective employer considering employing a candidate seeking supplementary employment to work an additional 20 hours a week and where you are presented with the above scenario, you would need to consider the following:
- Sponsored migrants can do additional paid work on a Health & Care Worker visa as long as they are doing the main job they are being sponsored for and any supplementary work must take place outside of their core working hours.
- If you are aware that the worker is not doing the main job they were sponsored for, they may be working in breach of their conditions of stay.
- Their current employer could face the possibility of a Compliance Audit by the Home Office and the possibility of their Sponsor Licence being revoked for not abiding by the hours/salary they had confirmed when assigning a Certificate of Sponsorship to the potential employee.
- The potential employee also faces the possibility of their visa being curtailed to 60 days within which time they will need to apply for a new Skilled Worker visa, in order to work in the UK.
In light of the above, where you are presented with the above scenario from a prospective candidate you should not employ them for 20 hours a week.
Instead, it would be better to consider employing them on a full-time basis under your Sponsor Licence, rather than run the risk of employing them without the necessary permission or authority to work in the UK. You would however need to ensure their new Skilled Worker visa to work for you is successfully approved before they commence working for you.
- I have conducted a right-to-work check on the employee and it confirms that he has a valid Skilled Worker Visa and is permitted to work an additional 20 hours a week, surely I would be covered if I had followed the right processes to employ them?
ANSWER:
Whilst conducting a right-to-work Check correctly provides you with a statutory excuse from any civil liability; the definition of “illegal working” is, “knowingly employing an illegal worker or having reasonable cause to believe the employee has no right to work”.
Where you are aware that a prospective candidate may be in breach of the conditions of their Skilled Worker visa, you could potentially be employing them illegally and run the risk of a fine for illegal working which is increasing to £60,000 per employee from January 2024.
Furthermore, as highlighted in the previous section there is a risk that their Skilled Worker visa could be curtailed by the Home Office, which could affect their continued ability to remain employed with you.
- I am a home care provider and I recently lost a patient where we had provided 24-hour care. This was a large contract for the company and as a result until I find another patient contract I cannot give as many hours to the team who were previously working with this patient. What should I do?
ANSWER:
When an employer assigns a Certificate of Sponsorship to a candidate applying for a Skilled Worker Visa, they would have confirmed within this document that they will be providing the candidate with a minimum guaranteed salary based on the candidate working a minimum number of hours per week.
In accordance with their Sponsor Licence duties, an employer is duty bound to pay their employees at the salary and hours stipulated in the Certificate of Sponsorship, even where you may have lost a large contract, as per the above scenario.
The only exception permitted by the Sponsor Licence guidance is where there has been a temporary reduction in the worker’s hours, or a phased return to work, for individual health reasons.
For an employer considering a reduction in salary, you must notify the Home Office via your SMS system if a worker’s salary is reduced for a reason not related to a permitted absence after you have assigned a CoS.
- If, because of the deduction in salary and hours, the worker would continue to be eligible for points for salary you can continue to employ the worker under a Skilled Worker Visa.
- If their revised salary no longer meets any salary, hourly or going rate requirement for the job or the route on which they are being sponsored, or the change is otherwise not permitted by the Immigration Rules or sponsor guidance, you must stop sponsoring them.
- You must notify the Home Office you have stopped sponsoring the worker via your SMS account.
NOTE: The Home Office has introduced smart checks with HM Revenue & Customs, which will alert them should an employer not be paying their employee in accordance with the salary/hours stipulated within their Certificate of Sponsorship and could subsequently result in a compliance audit and possible suspension of your Sponsor Licence.
- In order to sponsor a carer does the candidate need to have any experience or formal qualifications?
ANSWER:
Many employers we have spoken to within the healthcare industry state “there are no mandatory qualifications on how to become a carer and typically they will consider whether the prospective candidate has a compassionate, caring personality and good communication skills to deem them suitable for a role as a ‘carer. We then provide comprehensive assessment and instruction when they start employment, and all new employees are directed to complete the industry-recognised Care Certificate ensuring they achieve the required standards. In addition, new carers will shadow existing carers and undertake work-based qualifications to grow their knowledge and skillset”.
Whilst there is no definitive guidance from the Home Office on the exact qualifications a ‘Carer’ would require in order to work in the UK, from a Home Office perspective, prior training and a background in care demonstrates a candidates capabilities and thus evidences ‘genuine and credible’ employment.
The Home Office essentially want to understand an employer’s thought process when recruiting a new candidate to determine why a prospective candidate was considered suitable for a carer role. Where you may be considering recruiting a candidate with limited experience or little background in healthcare, the Home Office would expect greater justification as to why the prospective candidate was suitable for the role.
- I employ a number of employees under a Skilled Worker Visa. Can I outsource them as workers to another organisation:
ANSWER:
Where an employee is employed under a Skilled Worker Visa, they must remain employed with the organisation that has sponsored their Skilled worker visa application. It is NOT possible to supply ‘labour’ from one organisation to another and employers will need to consider the following:
- You cannot sponsor a worker if you will ‘NOT’ have full responsibility for all the duties, functions and outcomes or outputs of the job they will be doing.
- If the worker will be contracted to undertake an ‘ongoing routine role or to provide an ongoing routine service’ for a third party who is not the sponsor, regardless of the nature or length of any arrangement between you and the third party this will not be permitted.
- If the job amounts to the ‘hiring out’ of the worker to another organisation (third party) who is not the sponsor to fill a position with them, whether temporary or permanent, regardless of any genuine contract between you and the third party this is also not permitted.
If the Home Office suspect you are hiring a worker to a third party as routine labour, they will revoke your licence!
Furthermore if you accept a worker supplied to you from another organisation which falls foul of the above criteria, they would not have a Right to Work for your organisation and thus you could be liable to a civil penalty of up to £20,000 (£60,000 from January 2024)
- I work within the domiciliary sector where we are paid according to the time spent caring for a patient at their premises. I do not pay my staff for travel between patients’ premises because I do not also get paid for this. Does this comply with the Home Office requirements?
ANSWER:
UNISON guidance (the union for care workers) explains that all care workers are entitled to be paid at least the national minimum wage or living wage for the work that they do. This means that time spent caring for clients, travelling to appointments, and waiting to start the appointment should be included in the pay calculation.
Travel distance, travel time and wait time all need to be considered, to ensure carers are being paid either the national minimum wage or national living wage depending on age.
Where carers are employed under a Skilled Worker visa they would need to receive a minimum hourly salary of £10.75 in order to meet the salary thresholds.
It is not unlawful for care workers to have their travel time between appointments unpaid, so long as their total pay averages out at or above the appropriate minimum wage rate once travel time is factored in.
Care workers who receive lower pay rates per hour are more at risk of being underpaid when travel time is factored into the minimum wage pay calculation.
In addition, where a care worker incurs costs in connection with their employment that are not reimbursed by the employer, including expenses for travel between appointments, these reduce the worker’s pay for minimum wage purposes.
For minimum wage purposes, where care workers are using their own cars to travel between clients, ‘costs’ are normally limited to actual petrol expenses rather than including any contribution towards wear and tear or other vehicle-related expenses.
All of this means that, in practice, employers should consider reimbursing fuel costs in full on top of a national minimum wage hourly base rate for workers who are on or around the national minimum wage. This will ensure you do not fall foul of the NMW rules.
Alternatively, employers may need to increase the worker’s hourly base rate so that there is enough ‘head room’ in it, to absorb the fuel costs without taking their average pay below the NMW or the Skilled Worker salary thresholds.
Employers should also be careful they do not fall foul of Working Time regulations and also where they are not paying workers for travel time, the extended hours of work do not contravene modern slavery.
- What are the most common triggers that can lead to a Home Office Audit
ANSWER:
The Home Office can audit organisations that hold sponsor licences at random so you should implement processes and checks to ensure you remain compliant at all times.
The Home Office can carry out either a pre-licence assessment visit prior to an organisation applying for a Sponsor Licence, or a post-licence compliance visit once you have been granted a Sponsor Licence.
The Home Office may be carrying out the visit because:
- They have received intelligence about the organisation
- The sponsor hitting a trigger point for the number of migrants they have sponsored
- A sponsor licence renewal application
- Another unit in the Home Office has requested the visit as part of a joint operation
- The sponsor is B-rated and is therefore subject to an action plan that now requires assessment
- The sponsor has requested the visit
During a post-licence compliance visit, the Home Office will consider the following:
- The sponsor’s HR systems to ensure they are meeting their sponsor duties.
- Whether the sponsor or the sponsor’s activities pose a threat to immigration control
- Whether the original number of CoS requested on the sponsor application or annual request is still justified.
- Whether migrants working with the sponsor are complying with the conditions of their leave to stay in the UK.
- Whether the sponsor continues to have a trading presence
- Whether sponsored Skilled Worker migrants were recruited to fill genuine vacancies which meet the requirements of the relevant immigration route in respect of skill level and pay all aspects of the tasking referral.
- I have received an application from a candidate in Nigeria. Would I fall found of the WHO Ethical Recruitment guidelines by employing this candidate?
ANSWER:
Whilst the WHO Global Code of Practice on the International Recruitment of Health Personnel is voluntary, healthcare organisations are strongly encouraged to use the Code.
The Code is global in scope and is intended as a guide for all persons concerned with the international recruitment of health personnel.
The Code provides ethical principles applicable to the international recruitment of health personnel in a manner that strengthens the health systems of developing countries, countries with economies in transition and small island states.
Active international recruitment’ is defined as the process by which UK health and social care employers (including local authorities), contracting bodies, recruitment organisations, agencies, collaborations and sub-contractors target individuals to market UK employment opportunities, with the intention of recruiting to a role in the UK health or social care sector. It includes both physical or virtual targeting, and whether or not these actions lead to substantive employment.
This can include (but is not limited to):
- advertising to candidates through any medium
- incentivisation activities such as referral bonus schemes
- referring candidates to specific vacancies in the UK in return for a fee from the employing organisation
The only exception to this definition is where a candidate has already been appointed by a UK employer following an independent direct application and selection without the support of a recruitment organisation, agency or collaboration.
In this case, if required, these organisations can support and facilitate the employee’s passage to the UK.
In such cases, it is the responsibility of the recruitment organisation, agency or collaboration, if challenged, to provide evidence that the services they are providing are permitted under this exception.
For the purpose of this code of practice, a ‘direct application’ is when an individual makes an application directly and on their own behalf to an employing organising. Direct applications do not use a third party, such as a recruitment organisation, agency or collaboration.
Individual health and social care employers may consider direct applications from individuals who are resident in countries on the WHO Health Workforce Support and Safeguards List 2023, such as Nigeria, if they have made a direct application to a vacancy at their organisation.
A direct application can only be made in response to a vacancy that is hosted by, and recruited to, the same sponsoring organisation.
There can be ‘no active recruitment’ of health and social care personnel from countries on the ‘red list’ by:
- UK health or social care employing organisations
- recruitment organisations
- agencies
- collaborations
- contracting bodies
- any international agency sub-contracted to that organisation in the UK
- The Recruitment company I used in the UK do not charge candidates. I have however conducted my own due diligence and have discovered that the agent they use overseas has charged candidates a work placement fee
ANSWER:
It is illegal under section 6(1) of the Employment Agencies Act 1973 for any recruitment organisation, agency or collaboration based in Great Britain to charge a fee for providing a work-finding service to any person seeking a job.
Any such organisation charging fees to an individual for a work-finding service should be reported to the Employment Agency Standards Inspectorate (EAS). Whilst the EAS has a Great Britain-wide remit any concerns relating to fees or conduct of non-Great Britain-based agencies can also be reported to the EAS.
Any costs incurred by a recruitment organisation, agency or collaboration should be incorporated into the negotiated fee charged to employers and contracting bodies. At their discretion, employers may also meet the visa fees a candidate may incur to exit their home country or enter the UK or any professional registration fees.
Employers and contracting bodies should not contract recruitment organisations, agencies or collaborations that charge fees to candidates wishing to be considered for recruitment to the UK.
Any recruiting organisation that sub-contract to agencies outside the UK must not use non-UK agencies that charge applicants fees.
One concern from the Home Office where an agency has charged applicants fees as a work placement fee is that candidates maybe of poor quality as often the agent may have prioritised candidates who are able to afford their fee.
In addition we have seen examples of applicants being charged exorbitant fees by agencies and forced to work in exploitative conditions to pay off their debts. Often, the breakdown of fees or full amount is not fully disclosed until the worker has reached the UK, by which time they have already paid for flights and relocation.
Some have become trapped in “debt bondage” – a form of modern day slavery – as a result of the fees. Suspected victims described how agents had deducted money from their salaries and withheld their passport or residence permit until they repaid the sum owed.
Others claim to have been subject to abuse and threats or paid less than the minimum wage with many applicants feeling they cannot speak up because the sponsorship system for care workers means their visa is tied to their employer.
- What costs can I recover from an employee who wants to leave?
ANSWER:
This in part depends on how long an employee has worked for your organisation prior to leaving. If they have worked for your organisation under a Health & Care visa for less than 12-months then no costs are recoverable if they leave your organisation.
If they have worked for your organisation for more than 12-months then you would be entitled to any portion of the Immigration Skills surcharge that is unspent at the point you have notified the Home Office via your SMS system that the employee has left your organisation.