Frequently Asked Questions for Overseas Recruitment in the Social Care Sector Questions 1. What are the primary visa options for overseas recruitment in social care? 2. How do we apply for a Sponsor License? 3. What is a Certificate of Sponsorship (CoS), and how is it used? 4. Are a Sponsor License and Certificate of Sponsorship always required? 5. What are our responsibilities as a sponsor? 6. What are the ethical considerations during international recruitment? 7. What language requirements must overseas recruits meet? 8. What are the costs associated with overseas recruitment? 9. How long does the overseas recruitment process take? 10. How do we ensure the success of our overseas recruitment? 11. Can overseas workers pick up additional work beyond their sponsored role? 12. Are overseas workers entitled to the same sick pay as local employees? 13. What are the rules around overtime for overseas workers? 14. Are overseas workers eligible for maternity/paternity leave? 15. How should we handle contract termination for overseas workers?
16. What are the rules around offering part-time contracts to overseas workers? 17. Can an overseas worker be promoted, and what is the process? 18. What are the rules regarding contract renewal for overseas workers? 19. How do we handle redundancy for an overseas worker? 20. Are overseas workers protected by the same whistleblowing policies as UK workers? 21. What notice period must we provide if terminating an overseas worker’s contract? 22. Can an overseas worker refuse to work overtime? 23. How do we calculate annual leave for overseas workers on short- term contracts? 24. What should we do if an overseas recruit's English proficiency is lower than expected? 25 - What can I do to ensure overseas workers do not overstay their visa? 26. What should we do if an overseas worker loses their visa documentation? 27. How do we report an overseas worker who no longer meets visa conditions? 28. What are employers' obligations under the Modern Day Slavery and Recruitment regulations?
Answers Answer 1 - What are the primary visa options for overseas recruitment in social care? • Skilled Worker Visa: This visa is essential for hiring non-UK residents and requires the employer to hold a sponsor license. • Health and Care Worker Visa (HCWV): Tailored for health and social care roles, offering reduced fees and expedited processing. Answer 2 - How do you apply for a Sponsor License? To hire internationally, your organisation must apply for a sponsor license through UK Visas and Immigration (UKVI). The license is valid for 4 years and can be used to employ an allocated number of international workers. The process includes demonstrating compliance with UK immigration laws, providing supporting documentation, and appointing key personnel to manage the sponsorship process. It typically takes 8 weeks but can be expedited. You can find more information here: (GOVUK) Answer 3 - What is a Certificate of Sponsorship (CoS), and how is it used? A CoS is a digital document that your organisation must issue to each overseas recruit. It confirms the job offer meets visa requirements. A certificate of sponsorship must be assigned to each foreign worker. Each certificate has its own number which a worker can use to apply for a visa. When the certificate is assigned to a worker, they must use it to apply for their visa within 3 months. They must not apply for their visa more than 3 months before the start date of the job listed on the certificate. Before you assign a certificate of sponsorship to your worker, you may need to check whether the worker needs an Academic Technology Approval Scheme (ATAS) certificate. Link here
There are two types: - Undefined CoS: For candidates applying from within the UK. - Defined CoS: For candidates applying from outside the UK.
There is a red list in which no international recruitment can be made as these countries have insufficient doctors, nurses and care workers to support their own
populations. This list is updated annually and should be checked by prospective employers and can be found here. Answer 4 - Are a Sponsor License and Certificate of Sponsorship always required? Workers who present any one of the following visas will not need sponsorship and/or a CoS to work:
Ukraine schemes
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Youth Mobility
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Start-up
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UK Ancestry
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British National (Overseas)
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Overseas Domestic Worker
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Turkish Worker
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Frontier Worker permit
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European Union Settlement Scheme
•
PBS Dependants
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• Students, Graduates and High Potential Individuals
Family routes and Private Life
•
Answer 5 - What are our responsibilities as a sponsor? Sponsors must monitor and report on their sponsored workers, maintain accurate records, and comply with immigration laws. Failure to fulfil these duties can result in penalties, including losing the sponsor license. Employers may be breaking the law if they fail to make all of the correct checks when employing international workers. All employers must undertake employment checks before any licence or certificate is applied for. This includes checking a person’s right to work https://www.gov.uk/view-right-to-work and undertaking pre-employment checks. Employers must apply the same process for staff recruited from abroad as they would for staff recruited in the UK.
The Disclosure and Barring Service (DBS) cannot access criminal records held overseas. But it is still recommended that employers undertake DBS checks, in case a person:
is barred
•
has a criminal record in the UK
•
• comes from a country where the DBS does have information sharing arrangements
If an umbrella company says DBS checks aren't possible until arrival in the UK, consider challenging this or using a different company.
Employers need to contact the relevant overseas embassy to check for criminal records.
Answer 6 - What are the ethical considerations during international recruitment? Adhere to the Code of Practice for International Recruitment, which prohibits active recruitment from red-list countries and mandates fair treatment of recruits to prevent exploitation. Answer 7 - What language requirements must overseas recruits meet? Recruits must demonstrate English proficiency at level B1 on the CEFR, either through an approved English test or by being a national of a majority English-speaking country. Answer 8 - What are the costs associated with overseas recruitment? Overseas recruitment involves various types of costs that employers should consider during the planning process. These may include visa fees, sponsorship license application or renewal fees, and expenses related to relocation, such as travel, accommodation, and initial settlement support for recruits. Employers may also incur additional costs if they engage external recruitment agencies, legal advisors, or other third-party services to support the recruitment process. It's important to carefully evaluate these costs and consider internal resources or collaborative approaches within the sector to manage expenses effectively.
Answer 9 - How long does the overseas recruitment process take? From starting the process to the recruit's first day at work, it can take 4 to 6 months. Once established as a sponsor, subsequent recruitments may be quicker. This is based on recruiting a worker directly from another country.
Answer 10 - How do we ensure the success of our overseas recruitment? Success hinges on ethical recruitment practices, comprehensive pre-arrival preparation, and ongoing support for new recruits. This includes helping them settle into both the workplace and the local community. To protect themselves employers should only use recruiters from the ethical recruiters list. https://www.nhsemployers.org/articles/ethical-recruiters-list Answer 11 - Can overseas workers pick up additional work beyond their sponsored role? Overseas workers can only work full-time for their sponsor. But they can take up supplemental employment (sometimes called a ‘second job’) if they choose. They can work up to 20 hours per week in a ‘second job’, but it must be either: - In the same SoC code as your current job; or - On the Shortage Occupations List If they wish to do more than 20 hours per week, or a job which does not fall within the above, then the employer will have to sponsor you. More info can be found here. In terms of supplementary employment, there is no need to make a new visa application. You can employ a sponsored worker in a role that is skilled enough for sponsorship visa. They can work for 20 hours outside of their normal working hours. You will need to have on file evidence that they are still in their sponsored role and details of their normal contractual hours. You should also check they are not carrying other supplementary work.
It is important to check with the workers visa provider before hiring for additional work.
Answer 12 - Are overseas workers entitled to the same sick pay as local employees? In the UK, overseas workers are entitled to the same statutory sick pay (SSP) as local employees, provided they meet certain eligibility criteria.
General Eligibility for Statutory Sick Pay (SSP):
• Employment Contract: The worker must have an employment contract.
• Minimum Earnings: The worker must earn an average of at least £123 per week (as of the 2023 guidelines). • Sick Period: The worker must be off work for at least four consecutive days (including non-working days).
• Zero-Hour Contracts: Workers on zero-hour contracts are also eligible for SSP if they meet the above criteria. Even if their work hours vary, they are entitled to SSP if their average earnings over the previous eight weeks meet the threshold.
SSP Entitlement:
• Amount: £109.40 per week (as of 2023).
Duration: Payable for up to 28 weeks.
•
Answer 13 - What are the rules around overtime for overseas workers? Overseas workers can do unlimited additional hours for their main sponsor. They will have to be paid appropriately for this time. Some visas may have additional restrictions and therefore you must check the terms of the visa and sponsorship first. Answer 14 - Are overseas workers eligible for maternity/paternity leave? Maternity Leave: Overseas workers are eligible for statutory maternity leave in the UK if they meet the following criteria: 1. Employment Status: The worker must be classified as an employee. This includes those on zero-hour contracts as long as they have an employment contract with their employer. 2. Length of Service: The worker must have been continuously employed by the same employer for at least 26 weeks by the end of the 15th week before the baby is due. 3. Maternity Leave Entitlement: Eligible employees can take up to 52 weeks of maternity leave, consisting of 26 weeks of ordinary maternity leave and 26 weeks of additional maternity leave. 4. Statutory Maternity Pay (SMP): To qualify for SMP, the employee (including those on zero-hour contracts) must have been earning on average at least £123 per week and have been employed continuously for at least 26 weeks up to the 15th week before the expected week of childbirth.
Paternity Leave:
Overseas workers, including those on zero-hour contracts, are eligible for statutory paternity leave if they meet the following criteria: 1. Employment Status: The worker must be an employee, which includes zero-hour contract workers with an employment contract. 2. Length of Service: The worker must have been employed continuously by their employer for at least 26 weeks by the end of the 15th week before the baby is due. 3. Paternity Leave Entitlement: Eligible employees can take one or two consecutive weeks of paternity leave. 4. Statutory Paternity Pay (SPP): To qualify for SPP, the employee (including those on zero-hour contracts) must earn at least £123 per week.
Important Notes:
• Contracted Overseas Workers: These workers are treated similarly to local workers regarding maternity and paternity leave rights, as long as they meet the employment and earnings criteria. Answer 15 - How should we handle contract termination for overseas workers? Any termination should be lawful and fair and legal advice should be sought. Answer 16 - What are the rules around offering part-time contracts to overseas workers? In the UK, you can offer part-time contracts to overseas workers under the same rules that apply to UK workers. Here are the key considerations: - Equal Treatment: Overseas workers on part-time contracts must be treated equally to full-time workers. - Visa and Work Eligibility: Ensure that the worker’s visa allows for part -time work. - Employment Rights: Part-time overseas workers are entitled to the same employment rights as full-time workers, all calculated on a pro-rata basis. - Contract Terms: Clearly outline the terms of the part-time contract. Answer 17 - Can an overseas worker be promoted, and what is the process? Yes, overseas workers in the UK can be promoted, just like UK workers. The process for promoting an overseas worker generally follows the same steps as for any other
employee, but with some additional considerations related to their visa and work authorization. - Visa Conditions: Check whether the worker’s current visa allows for the new role. - Eligibility and Performance: Assess the worker’s performance, skills, and qualifications. - Contract and Job Role Update: Update the worker's employment contract to reflect the new role. Answer 18 - What are the rules regarding contract renewal for overseas workers? In the UK, renewing a contract for an overseas worker involves several key considerations to ensure compliance with both employment and immigration laws.
Here’s a summary of the process: - Review of Performance and Employment Terms. - Visa and Immigration Status.
- Right to Work Checks. - Notice of Non-Renewal.
Answer 19 - How do we handle redundancy for an overseas worker? When making an overseas worker redundant in the UK, it's crucial to follow the same legal procedures as for any UK worker, with additional considerations for their visa status. If this happens it is important to seek legal advice Answer 20 - Are overseas workers protected by the same whistleblowing policies as UK workers? Yes, overseas workers in the UK are protected by the same whistleblowing policies as UK workers. The Public Interest Disclosure Act 1998 (PIDA) provides protections to workers who report certain types of wrongdoing in the workplace, known as "protected disclosures." Answer 21 - What notice period must we provide if terminating an overseas worker’s contract? When terminating the contract of an overseas worker in the UK, the notice period that must be provided is the same as for UK workers. The required notice period depends on the length of service and the terms of the employment contract.
Answer 22 - Can an overseas worker refuse to work overtime? Yes, an overseas worker in the UK can generally refuse to work overtime under certain conditions, like UK workers. The right to refuse overtime depends on the terms of their employment contract and UK employment law. Answer 23 - How do we calculate annual leave for overseas workers on short-term contracts? Annual leave for overseas workers on short-term contracts in the UK is calculated in the same way as for UK workers. The calculation is based on the terms and length of the contract and the hours worked and statutory rights. Answer 24 - What should we do if an overseas recruit's English proficiency is lower than expected? Overseas recruits, particularly those coming to the UK on a Skilled Worker visa, are required to demonstrate a sufficient level of English proficiency as part of the visa application process. Here are the key points to consider: - Immediate Action: If you discover that an overseas recruit’s English proficiency is lower than expected after they start working, it’s crucial to take immediate action. - Reporting to the Home Office: If the worker’s English proficiency genuinely does not meet the visa requirements, the employer might need to report this to the Home Office. Answer 25 - What can I do to ensure overseas workers do not overstay their visa? The key to ensuring that your overseas workers do not become overstayers is putting in place people, processes, and systems that manage this risk. We recommend taking the following steps: • Keep copies of your sponsored worker’s passport, visa page, and biometric residence permit – these should be centrally available and easily accessible to anyone in your organisation who may require them. For this reason, we recommend scanning each of these documents and storing them electronically in a secure manner. • Record the expiry date of your sponsored worker’s current visa on your personnel system – a centralised database or personnel management system is ideal for this purpose
• Nominate key personnel whose role it is to check on the visa status of sponsored workers – this should ensure that if one person is sick or on holiday, another person is available to take over this role. • Put in place a diary system to remind your key personnel to follow up with any sponsored workers whose visa is due to expire. We recommend having a diary entry reminder set up for six months, three months, one month, and one week prior to expiry. Alternatively, you may have a task list system within your organisation that can be set up to automatically remind or alert key personnel to make enquiries at set intervals. Two of these follow-ups should be in the form of a face-to-face meeting to allow you to speak to the individual directly and to see their original documents. At each interval, you should ascertain the intentions of the worker – i.e. whether they intend to extend their visa, switch to another visa, move to another employer, or leave the country. Notes should be kept centrally to ensure that these intentions are visible to all relevant staff. At later intervals, checks should be carried out to ensure that the original intention is still valid and whether they have put in place the necessary action • Where a sponsored member of staff intends to extend their visa, ask them for confirmation that the Home Office has received their application. • Where sponsored staff intend to leave your employment at the end of their visa, they should be formally notified that you will no longer employ them after this date. • If the member of staff leaves before their certificate of sponsorship expires, update the Home Office Sponsor Management System (SMS) advising them that the member of staff has left your employment early – this needs to be done within 20 days.
The Home Office’s Employer Checking Service
The Home Office provides an employer checking service that employers can use to verify the immigration status of a new or existing member of staff. This can only be used, however, if the member of staff is unable to provide the necessary right to work documents, and/or including where: • they cannot show you their documents because of an outstanding appeal, review or application with the Home Office
• they have an Application Registration Card
• they have a Certificate of Application that’s less than six months old
• they’re a Commonwealth citizen who started living in the UK before 1988 Answer 26 - What should we do if an overseas worker loses their visa documentation? If an overseas worker loses their visa documentation, it's important to act quickly to ensure that they can continue working legally in the UK and avoid potential complications. Here’s what to do: - Report the Loss Immediately. - Apply for a Replacement. - Notify the Employer. - Provide Evidence of Application. Answer 27 - How do we report an overseas worker who no longer meets visa conditions? If you discover that an overseas worker in your organisation no longer meets the conditions of their visa, it’s crucial to report this to the Home Office promptly to ensure compliance with UK immigration laws. Answer 28 - What are employers' obligations under the Modern-Day Slavery and Recruitment regulations? Employers involved in recruitment activities must comply with the Modern Day Slavery Act 2015 and adhere to best practices to prevent exploitation. This includes ensuring all staff involved in recruitment are aware of their obligations and responsibilities to conduct thorough checks. Key steps include: • Providing training to recruitment staff on identifying signs of modern slavery and understanding legal obligations. • Conducting due diligence when engaging third-party recruitment agencies to ensure they adhere to ethical recruitment standards. • Following recruitment checks as outlined by the Care Inspectorate Wales, such as verifying the candidate's right to work and ensuring no fees are charged to the recruit for their employment. • Implementing robust policies and procedures to prevent modern slavery, which should be regularly reviewed and communicated to all relevant staff.
More information can be found at Care Inspectorate Wales.
This document is reviewed on a regular basis. Whilst we try to keep information timely and accurate we make no guarantees. We shall endeavour to correct any errors brought to our attention. This information does not constitute legal advice and is not a substitute for independent legal advice.
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