To address critical worker shortages experienced during 2021, and in particular to address demands over the holiday season, the UK Government put temporary immigration arrangements in place for poultry workers, pork butchers and HGV food drivers. Shortages in these occupations are however only some of the most extreme examples. In this article, we look at current immigration options and potential developments for addressing skills gaps in the retail and hospitality (R&H) sectors.

To-date, critical shortages have been dealt with as time-limited and numerically capped arrangements under the Seasonal Worker visa.

Do the measures to-date go far enough?

The Government has been clear that these measures were only ever intended to be a stop-gap solution, and that employers should look to the domestic workforce to fill vacancies rather than relying on migration. Alternatively, or in addition, they should invest in technology and machinery as a substitute for human labour.

However, according to the Office for National Statistics (ONS) Labour market overview for December 2021, the UK unemployment rate is low, at 4.2 per cent. Job vacancies are at record levels, at 1,219,000, including record highs in 13 of the 18 industry sectors the ONS categorises.

This labour market picture will put considerable pressure on the Government to find longer-term solutions to labour shortages, and it seems almost inevitable that liberalisation of immigration policy will have to feed into that mix.

The Government’s exhortation to employers to ‘build a high-wage, high-skill economy’ ignores the fact that medium and lower-skilled occupations still exist in the economy and need filling in order for it to function. There is also a limit to what employers can afford to pay in recruitment costs and wage bills, particularly in the R&H sectors, which have been hit hard by Brexit and COVID-19.

Using the Skilled Worker route to address skills shortages

There are occupations under the Skilled Worker route which might be useful for R&H employers who wish to bring medium-skilled workers to the UK, with a view to them settling permanently. These include some (but not all) of the occupations for which temporary measures were implemented.

Although the Skilled Worker route has now been in place for over a year, there may still be some employers who are unaware that the minimum skill level for eligible occupations has dropped from bachelor degree equivalent to A-level equivalent.

Some of the eligible medium-skilled occupations relevant to the R&H sectors are set out here.

The full list of eligible occupations can be accessed here.

Under the Skilled Worker route, an applicant must demonstrate all of the following:

• They have a job offer from a Home Office licensed sponsor;
• The job offer is at the required skill level RQF Level 3 (A-level equivalent) or above;
• They have English language proficiency to intermediate standard (Level B1 on the Common European Framework of Reference for Languages (CEFR); and
• The job offer meets the applicable minimum salary threshold.

Unless an exception applies, the minimum salary threshold is the highest of either:

• The general salary threshold of £25,600; or
• The specific salary rate for their occupation, known as the ‘going rate’.

If the job offer is less than the above thresholds, but not less than £20,480, then the applicant may still be eligible in certain circumstances, e.g. if they have a job offer in a shortage occupation (in which case a minimum salary rate of 80 per cent of the going rate for the occupation will also apply), or if they meet the definition of being a new entrant to the labour market (in which case a minimum salary rate of 70 per cent of the going rate for the occupation will also apply).

One of the major issues for employers of medium-skilled workers in the R&H sectors is that the required salary levels and fees associated with sponsoring Skilled Workers are often above what is commercially viable.

There is scope for employers to make representations for specific occupations to be added to the shortage occupation list when the Migration Advisory Committee (MAC) next reviews this. Its previous recommendation for a minor review to take place in Autumn 2021 is now overdue, so one may be forthcoming in 2022.

It is well-known that unavailability of logistics workers has led to stock shortages for retailers. It is possible for roles lower than A-level equivalent to be included as shortage occupations, so employers should consider making representations on these in the next shortage occupation list review, e.g. for warehouse staff, HGV drivers and van drivers.

The Government has also confirmed in its sponsorship roadmap that the fees for sponsoring a migrant worker are being reviewed in the fourth quarter of 2021, with a view to ensuring fairness as the new sponsorship system is implemented.

A more wide-ranging discussion may also be appropriate to secure flexibility in sponsorship arrangements for workers in these sectors (e.g. where working hours and salary may be affected due to reduced trading) on an ongoing basis.

Using other immigration routes

In some cases, less immediately obvious immigration options may provide a possible and/or more flexible alternative for R&H employers than sponsorship.

Late application under the EU Settlement Scheme

For EEA national/EEA family member candidates who previously lived in the UK, it may be possible to make a late application under the EU Settlement Scheme (EUSS) where the person previously lived in the UK and acquired a right of permanent residence (in most cases this will have happened after they spent a continuous period of five years in line with EU law). They must not have been physically outside the UK for a continuous five-year period since they last left the UK with permanent residence status.

There may also be some candidates who failed to apply under the EUSS by the required deadline. They can still make a late application for settled or pre-settled status.

Application under the EU Settlement Scheme for joining family members, or the Immigration Rules for family members

Individuals who are a close family member (e.g. fiancé(e)/proposed civil partner, spouse/civil partner, durable/unmarried/same-sex partner, child) of a person who is settled in the UK or who has pre-settled status under the EUSS may apply to join them in the UK.

Other routes

Employers may also consider focusing further on recruiting international students, including recent graduates, as well as young people in countries that currently participate in the UK’s Youth Mobility Scheme arrangements.

Possibilities for future reforms

Although political sensitivities around controlling immigration following the end of freedom of movement are still very much front of mind for the Government, there may be scope for more workers to become available to the R&H sectors due to the following possible factors:

• Continued shortages may prompt a further series of short-term, capped measures under the Seasonal Worker visa arrangements;
• Visitor visa arrangements may be reviewed to facilitate short-term work, following the incidental recommendation of the MAC in its recent review of the Intra-Company Transfer route;
• There may be liberalisation of family route requirements as part of a review of this area due to be concluded by Autumn 2022; and
• The UK Government may choose to initiate youth mobility arrangements with the EU and Switzerland Youth Mobility arrangements, as these were not included in the initial trade agreements concluded at the end of 2020.

What seems clear is that in the short to medium-term, the R&H sectors will need to continue to engage strongly with the Government to articulate and address their labour shortages.

By Supinder Sian, Immigration - Lewis Silkin

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