The construction conundrum – will skilled European workers qualify for a skilled worker visa after the end of free movement?

Posted onDecember 3, 2020

Problem, what problem? That seems to be the phrase used by those in government over the concerns expressed in the construction industry over the impact of the end of free movement for EU nationals on the 31 December 2020, the introduction of the new points based Immigration system and skilled worker visa in January 2021. Whilst the economic impact of the Covid-19 pandemic will inevitably result in job losses that will increase the available supply of UK and settled workers, in both the short and the long term, construction companies need to recruit from overseas to meet the skills shortage. In this article our sponsor licence solicitors look at the new skilled worker visa for European workers who currently make up nearly thirty percent of the workforce on many construction sites.

UK Sponsor Licence and skilled worker visa solicitors

London based OTS Solicitors specialise in business immigration law and have an expert team of work visa and sponsor licence solicitors with substantial experience in applying for and managing sponsor licences and work visa applications. For advice on how to get your construction business ready for the end of free movement, applying for a Sponsor Licence and the skilled worker visa, call the immigration lawyers at OTS Solicitors on 0203 959 9123 or contact us here. Appointments are available through video conferencing, Skype or by telephone appointment.

The construction industry and the new skilled worker visa

For many years the UK construction industry has been heavily reliant on a readily available pool of European workers filling roles as diverse as general labourers to skilled trades, such as bricklaying, or professionals such as architects, project managers and quantity surveyors. In addition construction firms have been able to enlist the services of a whole host of European national ‘trades’ from plumbers to joiners to roofers.

All of that is about to change with the end of free movement for EU nationals on the 31 December 2020. Whilst it is positive that over four million EU citizens living in the UK have already applied for pre-settled status or settled status under the EU Settlement Scheme, so that they can continue to live and work in the UK without the need for visas, it is of concern that the future pool of talent of European workers will be severely restricted by the rules surrounding the new skilled worker visa. Both non-EEA and EU nationals need to obtain a work visa to work in the UK after the end of free movement for new EU workers on the 31 December 2020.

Some of the construction sector concerns about the new points based Immigration system to be introduced on the 1 January 2021 relate to:

There is no ‘lower’ skilled visa route so the flow of European general labour to the UK will cease as there is no visa category that is applicable to lower skilled job applicants
There is no short term or seasonal worker visa route to enable those who don’t meet the skilled worker visa category eligibility criteria to come to the UK to work at peak periods in the construction industry. There is a seasonal visa category for agricultural workers
There is no specific trade visa or business visa that is tailored for trades (such as plumbers, electricians etc.) as trades aren’t likely to meet the eligibility criteria for a start-up visa or Innovator visa to set up their own UK business but skilled European trades don’t want to come to the UK to take up a job with a construction firm, preferring to be their own boss and sub-contract work for construction firms
Whilst some construction jobs meet the minimum salary threshold (the higher of £25,600 or the going rate for the job) and the skills criteria for the new skilled worker visa, some don’t. That would not be such an issue if more construction jobs were included on the Shortage Occupation List. The list contains the occupations where it is thought that UK employers face a shortage of suitably skilled workers. If a job role is on the Shortage Occupation List then under the new points based Immigration system the main benefit is the 'tradeable points' which a visa applicant acquires by securing a job on the Shortage Occupation List and the ability for the UK employer to sponsor a visa applicant at a salary up to twenty percent lower than would otherwise be required with a lower minimum salary limit of £20,480.

When does the new UK skilled worker visa come into operation?

The skilled worker visa replaces the Tier 2 (General) visa used by non-EEA nationals to come to the UK for work purposes. Under the new points based Immigration system, new non-EEA and EU citizens wanting to enter the UK will be treated equally for Immigration purposes so all new overseas workers will need a skilled worker visa. However, the application entry dates are different depending on whether a job applicant is from a non-EEA country or from the EU. From the 1 December 2020 an application can be submitted for a skilled worker visa for EU citizens starting work on or after the 1 January 2021 and for non-EEA citizens starting work after the 1 December 2020. There are different timescales because free movement for EU citizens doesn’t end until the 31 December 2020.

First steps with the skilled worker visa

An applicant for a skilled worker visa needs a job offer from a UK employer who holds a Home Office issued sponsor licence. As many construction firms have historically recruited from EU countries for their specialist construction workers a large number of firms in the construction sector don’t have existing Tier 2 (General) visa sponsor licences. If your firm is in the fortunate position of already having a Sponsor Licence to employ non-EEA workers on Tier 2 (General) visas then your Sponsor Licence will also cover sponsoring either non-EEA or EU citizens on skilled worker visas.

Sponsor licence solicitors say that with expert Sponsor Licence application advice construction firms can start the process of recruiting workers needing a skilled worker visa whilst their sponsor licence application is submitted to the Home Office. If your business anticipates needing to recruit construction workers from overseas because of the UK skills gap it is best to submit your Sponsor Licence application as soon as possible to avoid Home Office delays after the introduction of the new points based Immigration system.

Will construction job applicants qualify for a skilled worker visa?

There is no construction industry standard that a job applicant has to meet to qualify for a skilled worker visa. Instead the skill level is set for all skilled worker visa applicants at A level standard, referred to as RQF 3. This is a reduction in the current skill level for a Tier 2 (General) visa of RQF 6 or degree level.

Unfortunately there is no ‘lower skilled’ visa route available for the likes of general labourers or industry specific visa, like the seasonal agricultural visa. The positive is that there is no need for a job applicant to have an A level qualification (or equivalent qualification) or a formal qualification for the job but the job, as assessed by the employer, must need the minimum skill level.

Therefore, an overqualified job candidate educated to the equivalent of A level standard won't be able to secure a skilled worker visa to work as a labourer in the UK. That’s because the Immigration Rules say that the visa applicant must be recruited to do a job which is at a particular level of skill so whilst the job applicant may meet the RQF Level 3 standard they won't get a visa unless the job they are applying for requires skills to RQF Level 3 standard or above.

Alternatively, the job role could be on the Shortage Occupation List. The list is drafted by the Migration Advisory Committee and then considered and approved by the government. The Shortage Occupation List is to be found at appendix K to the Immigration Rules. The Shortage Occupation List was last reviewed by the Migration Advisory Committee in September 2020 and section 60 of their report covers the skilled construction and building trades. Whilst the Migration Advisory Committee recommended the inclusion of bricklayers on the Shortage Occupation List it didn’t recommend the inclusion of plumbers, carpenters, joiners, glaziers, plasterers, floorers, tilers, painters and decorators or building trade supervisors.

Sponsor licence solicitors say that it is disappointing that more trades haven’t been recommended to be added to the Shortage Occupation List as inclusion on the list makes it easier to secure a skilled worker visa. However, it is nonetheless possible for a construction business to recruit a non-EEA or European worker on a skilled worker visa if the job is of RQF 3 standard or above and the applicant meets the other eligibility criteria for the visa.

What are the skilled worker visa eligibility criteria?

The skilled worker visa applicant needs:

A job offer from a UK based employer who has a Home Office issued skilled worker sponsor licence. The visa applicant can't intend to set up their own business in the trade (for example as a plumber) or work freelance or be a subcontractor – they must have a job offer as an employee
To meet the skill (RQF level 3) and minimum income threshold
Meet the English language requirement
A minimum score of seventy points on the Home Office points based Immigration system. To achieve the seventy points required to secure the visa some points are mandatory and others can be traded.

The skilled construction worker salary and the minimum salary threshold

When devising the skilled worker visa the government decided that there would be one national minimum salary threshold. Accordingly, the minimum income threshold isn’t industry specific although there are complicated Immigration Rules on the salary threshold for the skilled worker visa. The job must pay either:

A minimum salary of £25,600 gross per year (unless the job is on the Shortage Occupation List in which case the minimum salary threshold ids £20,480) or
The going rate for the job role.

Whichever is the higher of the two criteria.

However, if a job applicant is a ‘new entrant’ the non-EEA or European construction worker may meet the eligibility criteria for a skilled worker visa even if the salary on offer is only £20,480 or above or seventy percent of the going rate for the role, whichever is the higher. New entrant status applies to those who are:

Under the age of twenty six when applying for the skilled worker visa
Switching from the student visa or graduate visa routes or
Part of some regulated professions and working towards a recognised professional qualification.

How does the skilled worker visa points based system work?

Under the skilled worker visa criteria a visa applicant needs a score of seventy points but some points are mandatory and others tradeable. This can produce some surprising results with some candidates qualifying for example because they are classed as a new entrant. Sponsor licence solicitors say that is why it is best to take specialist Immigration law advice on sponsor licences and skilled worker visa applications to best ensure Sponsor Licence and visa success.

UK work visa and Sponsor Licence solicitors

London based OTS Solicitors specialise in business immigration law and employment law and are recommended in the two leading law directories, The Legal 500 and Chambers Guide to the Legal Profession. The specialist team of work visaand sponsor licence solicitors have construction industry Immigration expertise and substantial experience in applying for visas and sponsor licences. For information on the new skilled worker visa or for answers to Sponsor Licence and associated employment law questions call the work visa and Sponsor Licence immigration lawyers at OTS Solicitors on 0203 959 9123 or contact us here. Appointments are available through video conferencing, Skype or by telephone appointment.