Employers must review recruitment as visa pressure continues

Home secretary Sajid Javid has recently indicated that the government is reviewing the impact of the monthly limit on the Tier 2 (General) restricted certificate of sponsorship (COS) allocation process, as demand has exceeded the limit every month since December. Reports suggest that certain, or all, NHS roles may now be moved to the 'shortage occupation' list as part of this review.

However, a review on these terms would be of no benefit to employers of non-NHS migrant workers, as shortage occupation roles remain subject to being counted as part of the monthly limit. If the government truly wishes to ease the pressure on employers who are struggling to recruit from the EU as a result of the Brexit vote, the number of restricted COS that can be used each month has to increase.

The number of refused restricted COS applications is increasing. The latest figures show almost twice the number of applications was refused in April as in January, when we last reviewed the data. Furthermore, figures released by the Home Office under a freedom of information request show that there is now almost one refusal per accepted application. We can therefore assume that many of the refused applications from each month are being rolled over to the following month, putting further strain on the cap.

From a forecasting perspective, employers must now factor in that it will take longer to employ a migrant worker who needs to go through the restricted COS process than was previously the case, if they are even able to employ that worker at all. In addition, employers must take into account that the shortage of restricted COS available is driving up the minimum salary. Higher salaries are awarded more points under the points-based system on which a restricted COS application is assessed. Only roles with a salary of around £55,000 were granted certificates in May, and this figure has been around the £50,000 mark since December. Unless and until the backlog of applications is cleared or there is a change in policy, it is hard to see this figure coming down.

This is bad news for employers seeking to fill certain key IT roles, whether in a specialist IT firm or in a related role in sectors such as construction or education. It should also be borne in mind that there is no adjustment permitted for regional variations in salary rates. There is a worry, therefore, that the restricted COS process could become limited largely to roles based within the City of London and south east of England, with their higher than average national pay rates.

So what should affected employers be doing? Clearly, an immediate or short-term option for some employers will be to increase the salary for the role. This might both help to produce a resident worker who does not need to be sponsored or, if not, put the employer in a better position to get a restricted certificate of sponsorship by increasing the points awarded to the candidate.

We are also aware that employers who have identified potential workers in IT-related roles are now seeking to fill this type of role with an employee working remotely, at least in the short term. However, both of these options are only really available in the short term, and for a limited number of roles.

Without any change in policy, or pending any action by the government, employers must review their recruitment strategies to see where limits on the number of restricted COS available are likely to impact them. They will need to consider how they can mitigate these impacts in their recruitment policies, processes and staff training programmes.

Shuabe Shabudin is an employment law expert at Pinsent Masons, the law firm behind Out-Law.com.