Tue, 1 Mar 2011

Non-EU workers cap

Employers of non-EU Tier 2 workers may be forced to make redundancies and face discrimination claims when a new annual limit on visas comes into force, an employment lawyer has warned.

From 6 April, employers will be required to apply for a Certificate of Sponsorship (CoS) from the UK Border Agency for skilled workers who are applying from outside the EU through Tier 2 of the pointsbased system. Capped at 20,700 entries per year, the visas will be allocated monthly and will last for 12 months. Organisations can renew their allocation each year, but if their application is declined and they are short of CoS, existing employees without a certificate will be considered illegally employed.

Helen Farr, partner in the employment team at Pinsent Masons, said her clients were anticipating problems with the changes. Farr said: ‘A number of companies will fall foul of forgetting that someone’s certificate is going to run out. For example, if you have five certificates already allocated and you have a recruitment drive, you must remember to hold back certificates for existing staff.’

Farr recommends HR departments audit staff ahead of April and hold back certificates to ensure they are not forced to let staff go.

She also warned of the potential for prospective employees to bring discrimination claims against recruiters for rejections based on foreign worker limits. ‘If you have four certificates and four brilliant candidates from outside the EU, but you’ve got to hold back one certificate, the choice you make has potential issues in terms of discrimination claims.’

Farr advises employers to draw up detailed employment policies with which to justify decisions and avoid claims.

The Home Office declined to comment on Farr’s points, but issued a statement from Immigration Minister Damian Green, who said: ‘We have worked closely with businesses while designing this system, and made it clear employers should look first to people who are out of work and who are already in this country.’

In 2009, 63,480 Tier 2 Skilled Workers’ visas were issued to non-EU workers. The new restrictions will not apply to employees earning more than £150,000, or those currently employed in the UK.