UK immigration options for the construction industry

Article by Jennifer Stevens – Senior Associate Solicitor and Practice Manager and Mercedes Moya – Paralegal both of Laura Devine Attorneys LLC

With 2014 being a boom year for housing and commercial development, and with continued growth in 2015, the construction industry is creating a demand for specialist and skilled workers. The Royal Academy of Engineering acknowledged that the UK will need over one million new engineers and technicians over the next five years and the UK Government recognises that there is a skills gap in the resident labour market. This suggests that the UK is not able to keep up with this demand, requiring employers to hire workers from outside the UK.

Tier 2 (General)

For construction companies looking to hire migrant workers to fill skilled positions within the UK that cannot be filled by resident workers, the most appropriate category is likely to be Tier 2 of the UK’s Points Based System. Employers must first obtain a licence from UK Visas & Immigration (UKVI) before they can sponsor migrant workers in the UK. In addition, unless the position is an intra company transfer, is on the shortage occupation list or the annual salary is at least £155,300, the position must be advertised to the resident labour market for a 28 day period in two mediums and provided no suitable resident worker applies for the role, the employer can then request a restricted Tier 2 (General) Certificate of Sponsorship (COS) from UKVI. There are only 20,700 of these restricted COS available per year, divided into 12 monthly allocations. Restricted COS are allocated on a points basis, with roles on the shortage occupation list, PhD level positions and those with high salaries obtaining the highest points.

The Migration Advisory Committee (MAC) is an independent non-departmental public body which was set up to advise the UK government, for example on where there are shortages of skilled labour in the UK. Based on this advice, the UK Government created and updates a shortage occupation list. The good news for the construction industry is that several relevant specialist roles are on this list including certain technicians, quality control and planning engineers in specific industries and environmental professionals in the construction related ground engineering industry. If a position is on the shortage occupation list it means that advertising is not required and that it is likely to be granted a restricted COS. In addition, positions under Tier 2 are also usually required to be at NQF Level 6, but this does not apply to those positions on the shortage occupation list.

A migrant may work in the UK under the Tier 2 (General) category for an initial period of up to five years, with a maximum period of stay of six years. However, this category can lead to indefinite leave to remain in the UK (ILR).

Tier 2 (Intra-Company Transfer (ICT))

A further option for multi-national construction companies is to transfer current employees who have gained the specialist skills and experience required by the company, to their UK based branch under Tier 2. For transfers of 12 months or more (up to a maximum period of five years or nine years if earning at least £155,300 a year) the employee must have been working for the organisation outside the UK for at least 12 months directly prior to the transfer and must be filling a skilled job in the UK which cannot be filled by a settled worker. The employer is not however required to advertise the position.

Current employees can also be transferred to a UK branch of the same organisation for a maximum six month period to acquire the skills and knowledge needed to perform their role overseas, or to impart their specialist skills to the UK workforce, provided the role in the UK is supernumerary. The employee just needs to be employed by the overseas company at the point of applying. Alternatively, if a UK company has a structured graduate training programme, clearly defining progression towards a managerial or specialist role, they could use the Graduate Trainee sub category of Tier 2 (ICT). Migrants must be recent graduate recruits of multi-national companies who are being transferred to the UK branch of the same organisation as part of the graduate training programme. 

The Tier 2 (ICT) category does not lead to ILR however therefore an employer should consider applying under Tier 2 (General) if they require a long term or permanent transfer of an employee.

Tier 2 also covers migrants who are working in the UK on a contract basis and are being supplied to one organisation by another. The sponsor in these circumstances must be whoever has full responsibilities for the migrants duties, functions and outcomes or outputs of the job.

Employers sponsoring migrants under Tier 2 must also ensure that they are paid the minimum required salary, which is dependent on the category and the applicable Standard Occupational Classification code. They must also be aware that if the sponsoring migrant leaves the UK at the conclusion of their sponsorship they will be unable to re-enter the UK under the Tier 2 category for a period of 12 months (unless an exemption applies, for example they were previously in the UK in the Short Term staff, Skills Transfer or Graduate Trainee sub categories of Tier 2 and they are returning under the Long Term staff route). Employers must therefore take this exclusion period into consideration when transferring staff.

Tier 1 (Exceptional Talent)

This is an alternative immigration option that does not require a sponsor and enables successful applicants to take any employment in the UK. This category is relevant for migrants who are world leaders, or emerging world leaders, in their field and covers the field of engineering. However the bar for this category is set very high and there are only 1000 places available each year, with 150 places allocated to the engineering industry. The application process initially involves the applicant obtaining an endorsement from a relevant designated body, such as the Royal Academy of Engineering.

Tier 1 (Entrepreneur)

The Tier 1 (Entrepreneur) category is open to those who wish to join, take over or establish a business in the UK. In order to be successful, applicants have to demonstrate that they have access to £200,000 for investment in the UK. This category could also therefore be applicable to those wanting to invest in a construction company within the UK.

There are therefore several options available to enable companies within the construction industry to hire and transfer skilled workers to fill the skills gap which currently exists within the UK, at least until any education or training programmes prove successful in upskilling the UK resident labour market.

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