Care home staffing reforms – new immigration rules and restrictions

As with most UK businesses, care homes are now limited by the number of new and existing overseas workers they can employ. This month we caught up with employment law experts, Karl Deakin & Glyn Lloyd to look at the implications for care home employers…

The Government intends to bring into effect a permanent cap on the amount of workers from outside the EEA as of April 2011. This will apply to Scotland as well as the rest of the UK.

Care home managers are therefore strongly advised to assess their staffing needs as a result of the new Immigration Rules and to consider recruitment issues in anticipation of further changes that are due to come into effect next year.

Employing overseas workers

Since 2008, any care home wishing to employ overseas workers in the UK must generally be granted a sponsorship licence by the UK Border Agency. A licence is also mandatory if a care home wishes to employ non-EEA workers who are currently in the country on work permits (that were issued before the system changed in 2008) following the expiry of those permits. Under the sponsorship licence, the UK Border Agency (UKBA) allocates to employers (known as ‘sponsors’) a number of ‘certificates of sponsorship’ – a set of digital reference codes that the sponsor must issue to each and every overseas worker as part of their personal UKBA applications to either enter or remain in the UK.

The new rules

Before 19 July 2010, and as part of their sponsorship licence applications, care homes could request, within reason, any number of certificates of sponsorship. The number would ordinarily be calculated by reference to the number of new overseas workers the care home wished to employ, in addition to those workers who were already in the UK and who wished to continue their employment in the country after their temporary permission ended. In more cases than not, the UKBA granted the sponsors the amount of certificates that they requested. However, under the new regime, employers successfully applying for a sponsorship licence will now automatically be granted no certificates at all unless they follow a new procedure to request an appropriate quota which requires a far more detailed justification of their needs for overseas staff.

Care homes that already employ overseas workers

The UKBA is in the final stages of reviewing the number of certificates that existing sponsorship licence holders should be allocated during the next 12 months.  In many cases, the UKBA has contacted care homes explaining that their pre-19 July quota of certificates has now been reduced to zero.

This means that many sponsors are not able to recruit any new overseas workers and, more importantly, they are not able to renew the leave of their existing overseas workers who are already in the UK, for example, on work permits. If they wish to do so, they should carry out the same request procedure as before in relation to new sponsorship licence applicants, and apply for an increase in their new allocation of certificates. The UKBA does prioritise those requests from sponsors who require a certificate of sponsorship to enable them to continue the recruitment of their existing work permit holders.

In light of these changes, care homes are strongly advised to check their certificate quota as a matter of priority to avoid the current struggle (which many businesses are facing) to renew their employees’ permission to remain working in the country having had their number of certificates reduced by the UKBA to zero. Likewise, overseas workers are urged to liaise with their employers to ensure their employers can in fact sponsor them following the expiry of their leave to remain in the UK. The failure by either party to take these steps may result in the individual overseas carer having to return to their home country, and subsequently re-applying to re-enter the UK.

Skilled overseas carer as a shortage occupation in Scotland and elsewhere

Skilled overseas carers remain in shortage occupation, therefore allowing care homes to recruit suitably qualified and experienced carers without having to comply with many of the onerous conditions that apply to most businesses, before the individual is recruited.
In Scotland and Wales, any new overseas carer must, among other mandatory criteria, be paid at least £7.80 per hour after deductions for accommodation, meals, etc, and they must hold at least a relevant S/NVQ level 3 or equivalent qualification in care.

Overseas carers wishing to work in England must be paid the same rate, but the job role in the UK must include supervisory responsibilities, be at least a relevant S/NVQ level 2 or equivalent qualification in care, and the applicant must have at least two or more years’ relevant experience.

In either instance, the care home must still have a certificate of sponsorship to assign to the individual worker.

‘Highly skilled’ overseas workers

The UKBA categorise ‘highly skilled’ individuals as those who have university qualifications and who can prove higher previous earnings. They are entitled to work in the UK without being sponsored under a licence, and without having to be assigned a certificate of sponsorship. Administratively, it is therefore easier to recruit and continue the employment of these individuals, particularly in light of the complexities surrounding the new rules.
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Highly skilled workers already in the UK wishing to remain in the country are not affected by the changes. However, this is not the case for those wishing to enter the UK for the first time under as a ‘highly skilled’ worker, or for those who are already in the UK under a different immigration category, such as a sponsored employee or a work permit holder, who now wish to ‘switch’ into the ‘highly skilled’ category.

Highly skilled workers entering the UK for the first time

These individuals must now prove that they were paid a higher salary by their previous employer  and/or that they have higher academic qualifications, than was previously the case, in order to be eligible to enter the UK for the first time as a ‘highly skilled’ worker. In addition, the Government has capped the number of applications it will process from this immigration category per month, and this limit will remain in effect until 31 March 2011. Eligible applicants who submit their applications to enter the country after the monthly quota has been reached will now have their forms processed the next month.  In practice, this means there will be uncertainty as to when these individuals will in fact be able to travel to the UK to work.

Workers and university students already in the UK ‘switching’ into the highly skilled category

Most workers already in the UK under a different immigration category, wishing to switch to the ‘highly skilled’ group, will now need to prove either higher previous earnings and/or higher academic qualifications than before. Fortunately, university students already in the UK who intend to ‘switch’ from their student visa category to the highly skilled category are exempt from having to prove these new criteria. Students enrolled on courses that teach qualifications below degree standard are not covered by the exemption.

Employing carers from certain eastern European countries

Carers and their families from  Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia or Slovenia, are not affected by the new rules, and they still require the existing relevant work permissions in order to work in the UK.

Next steps

Care homes employing overseas workers are advised to predict their staffing needs over the next 12 months, taking into account any overseas employees whose leave to remain in the UK expires during this period. We recommend they also confirm as a matter of urgency their new allocation of certificates of sponsorship, in order to ensure there is a sufficient amount to either recruit or extend the employment of their overseas employees. Many employers will need to follow the new procedures to request an increase in their quota of certificates.

The restrictions on overseas workers and highly skilled individuals will be superseded by permanent limits on 1 April 2011, and details of these new caps will be published at the end of the year once the Government has concluded its ongoing consultation.

Fortunately, the rules on permanent residence and British citizenship, both of which grant workers permanent permission to work in the UK, remain unchanged and care homes are encouraged to assess whether their workers are eligible for these rights sooner rather than later. These entitlements avoid the difficulties associated with sponsoring overseas workers. Similarly, carers from a number of the Eastern European countries are not affected by the new regime. Care homes that anticipate higher staffing needs but do not have the resources to invest in recruiting overseas workers should therefore consider nationals from these countries in their workforce forecasts.

Karl Deakin is a Partner at Veale Wasbrough Vizards Employment Team and is qualified to advise on matters arising in both the law of Scotland and the law of England and Wales. Glyn Lloyd is a business immigration solicitor at the firm’s Healthcare Team. Both Karl and Glyn can be contacted on 0117 925 2020 or [email protected] and [email protected].