This article appeared in the magazine section on the Daily Business news platform and can be viewed directly, here.

Every week we hear of employers who are struggling to recruit new employees. Pretty much all sectors seem to be facing this problem, but the leisure, tourism, hospitality, agriculture and food and drink sectors are among the worst affected. The pandemic is partly to blame for the current situation, but directly or indirectly Brexit has been a far more significant factor.

When the points-based system for non-EEA nationals was introduced in 2008 there was to have been a Tier 3 visa category for what were deemed unskilled workers. This was never implemented, and was later abandoned, precisely because it was believed there would be enough workers for such roles from within the EEA.

The new post-Brexit immigration system that came fully into effect on 1 January 2021 makes no distinction between EEA and non-EEA nationals and was supposed to make it easier for employers to recruit the workers they needed.

Certainly, measures such as the abolition of the resident labour market test and the annual cap on the number of work-based visas went some way towards that, as did the reduction in the required skills level for the new Skilled Worker visa from RQF6 to RQF3.

However, not all jobs are eligible for sponsorship under that visa route, and this is particularly the case in the worst affected sectors. Although there is a Seasonal Work route under which temporary visas may be granted, it is limited in its scope and is no substitute for what was envisaged under the old Tier 3 category before it was scrapped.

Many employers who have not previously held a sponsorship licence from the Home Office are left considering whether it is worthwhile applying for one now. Aside from the fee for the licence itself employers must also pay an immigration skills charge, a levy on every worker they sponsor under the Skilled Worker route.

There may be additional costs in record keeping and compliance, including training the staff responsible for recruitment to ensure they are familiar with an employer’s duties under the legislation.

Since they are often competing to employ workers from a limited labour pool, we have seen some employers offering to reimburse the visa fees and the NHS surcharge payable by their employees and/or meet some or all of their relocation costs. Understandably, many employers are concerned that they may incur these costs only to lose their workers later to a higher-paying competitor and to have to re-start the recruitment process again from scratch.

Assuming employers have found suitable candidates there are often delays in the Home Office processing their visa applications. Home Office guidance notes that applications from outside the UK for a Skilled Worker visa are ordinarily processed within 3 weeks, but then advises that it is currently taking an average of 4 weeks. In our experience it can take even longer than that.

This is far from ideal for employers who may have time critical projects or otherwise have a pressing need for staff now. In theory it is possible for applicants to use the Home Office’s priority services to obtain a faster decision, but again delays are common, and we often see cases where decisions are taking weeks instead of days. On occasion the priority services have even been suspended.

It used to be the case that employers could carry out right to work checks themselves but since 6 April 2022 they have been required to use the Home Office’s employer checking service. . While this may take some of the pressure off employers to get things right it does mean they are now entirely reliant on the Home Office responding timeously.

You sometimes hear it suggested that the answer lies with structural changes in the affected sectors, through providing training perhaps or by improving pay and conditions to make such jobs more attractive to the UK workforce. Aside from the possibility of this increasing employers’ costs, which may be passed on to consumers, this is a long-term solution and does nothing to alleviate the problems now.

So, what can employers do in the short-term?

They should consider applying for a sponsorship licence where the jobs they are having problems filling are eligible for sponsorship.

Other employers may need to look to some of the alternative visa routes which do not require employer sponsorship, but which provide a right to work in the UK, such as the Youth Mobility Scheme, UK Ancestry visa, Graduate visa, and the British Nationals (Overseas) visa.

Most of these other visa categories are time-limited and cannot be extended, but they could provide a short-term solution to an employer’s immediate recruitment needs. In time they could even lead to workers being retained in jobs that are eligible for sponsorship, especially in promoted roles.

We recommend that in order to promote recruitment, employers consider building links either in the relevant countries or among their expat communities as well as with the UK universities.

It is also important for employers to seek specialist advice from immigration lawyers to identify the likely options available for their recruitment needs, and to assist them with the process from applying for a licence, recruitment, right to work checks through to providing training and support for their HR staff.

Please see Immigration Law | Vialex for more information on our Immigration Law services.