On Christmas Eve, the health and social care sector received a much anticipated early Christmas present. The Government announced that care workers, care assistants and home care workers were to become eligible for the Health and Care Worker Visa for 12 months, and that care staff will be added to the Shortage Occupation List. This followed the recommendations of the Migration Advisory Committee.

The Government statement confirmed that the decision was in response to the pressures experienced by the sector throughout the pandemic and acknowledged that it is a significant step to take, given that care workers would be the only occupation on the Shortage Occupation List outside RQF Level 3 to use the points based system.

This announcement could not have come at a more needful time for the sector, with reports of homes being unable to admit new residents and even being forced to close due to staff shortages. Many providers are therefore keen to utilise this new prospective recruitment avenue. The following is a summary of what providers need to know should they wish to pursue foreign recruitment under the Health and Social Care Visa scheme.

Shortage Occupation List

As part of the points-based immigration system, workers applying through the skilled worker route must reach 70 points to be eligible for a work visa. 20 points will be allocated automatically for any position listed on the Shortage Occupation List. The additional 50 points will be met where the potential worker has an acceptable standard of English, an offer from a licensed sponsor and the required skill level.

Health and Care Visa

To employ workers under the expanded scheme, employers will need to be approved for a sponsor licence. The application fee is £536 for small businesses (annual turnover of £10.2 million or less, total assets worth £5.1 million or less, and 50 employees or fewer) and charities, and £1,476 for medium and large organisations. The application process usually takes around 8 weeks.

Eligibility Criteria

To get a licence as an employer, a provider must have appropriate systems in place to monitor sponsored employees and people to manage the sponsorship. UK Visas and Immigration (UKVI) will review the application form and supporting documents, and may choose to visit the business as part of this assessment.

The applicant provider must appoint individuals to certain sponsorship management roles:

• authorising officer – a senior and competent person responsible for the actions of staff and representatives who use the SMS
• key contact – the provider’s main point of contact with UKVI
• level 1 user – the individual responsible for all day-to-day management of the licence

These roles can be filled by the same person or different people.

Suitability checks

As part of the suitability checks, UKVI will check that no one involved in sponsorship has:

• an unspent criminal conviction for an offence listed in the guidance for sponsors
• been fined by UKVI in the past 12 months
• been reported to UKVI
• broken the law
• been a ‘key person’ at a sponsor that had its licence revoked in the last 12 months
• failed to pay VAT or other excise duty

In addition, the provider and their allocated staff must:

• be based in the UK most of the time
• not be a contractor or consultant contracted for a specific project
• not be subject to a bankruptcy restriction order or undertaking, or a debt relief restriction order or undertaking
• not have a history of non-compliance with sponsor requirements

Allocated staff must be paid members of staff or office holders (appointed to a position by a company or organisation but without a contract or in receipt of regular payment).

In addition, a provider can choose to allocate any of the roles to a UK-based legal representative (with the exception of the authorising officer role); though, the legal representative must be qualified to provide immigration advice or services.

Minimum Salary

In addition to the provider having successfully obtained a sponsor licence and the potential employee meeting the criteria for an eligible health or social care job, the applicant will usually need to be paid at least £20,480.

Each occupation code has its own annual going rate, details of which are listed here.

Where the ‘going rate’ for the job advertised is higher than £20,480, the employee will usually need to be paid at least the going rate. However, if a role is on the Shortage Occupation List, employees can be paid 80% of the job’s usual going rate to qualify for a Skilled Worker visa (provided all other requirements are also met). The current guidance advises that the employee must still be paid at least £10.10 per hour.

Skilled Worker Criteria

Applicants for the Health and Care Visa will also need to meet all relevant criteria for a Skilled Worker. These requirements are set out in the Immigration Rules at Appendix Skilled Worker and include a requirement for applicants to be able to speak, read, write and understand English at the required level.

Vaccination Status

It should also be noted that, as with current workers based in the UK, self-exemption for staff vaccinated overseas will end on 1 April 2022. From this time, it will be unlawful for CQC regulated providers in health and social care in England to employ staff who have direct patient contact and who are unvaccinated, except those who are medically exempt. Staff vaccinated overseas will be required to provide evidence that they have been vaccinated or may be required to have a top-up vaccine dose.

If you are a care home provider and would like advice and assistance in relation to these applications and all other matters affecting the running of your service, our specialist teams of care home solicitors are available to assist you.

If you’d to get in touch to discuss your matter further then please feel free to contact us on 01202 786135 or email online.enquires@la-law.com.