U-turn for health and social care: From clapping to clamping down on border control

Alex Christen, Immigration lawyer at Capital Law, investigates the future employment regulations of overseas workers in health and social care

With the announcement of the new points-based immigration system following hot on the heels of the chaos of the pandemic, there are a lot of questions about the futures of migrant workers who supported the UK sector heavily through the COVID-19 crisis.

The COVID-19 crisis has undoubtedly created a newfound respect and admiration for key workers, from nurses to bus drivers, care home staff to supermarket employees – many of whom are in low paid positions, with many being non-UK nationals.

Clapping for the NHS

During the height of lockdown in the UK, with public appreciation of those operating in the health and social care sectors at an all-time high, many operating within the industry grew hopeful that the UK Government’s gratitude would be reflected in wage increases, greater sector benefits, and a positive review of current immigration policy for those employed in the sector who are not UK citizens.

While wage and benefits matters have yet to be addressed, hopes of a more sympathetic immigration policy were dashed in July when the UK Government confirmed details of its new immigration system that will be put in place effective 1 January 2021 as a result of Britain’s exit of the European Union. Similar to the existing system, the UK’s new immigration system would continue to take a points-based approach, with the aim of attracting only the “brightest and best” from abroad to contribute to the UK’s economy.

However, with many sectors heavily reliant upon overseas nationals, particularly the health and social care sector, fears now abound that the new immigration system will prevent overseas nationals from being able to work in the UK, creating an enormous labour shortage – especially in an already stretched sector.

The new immigration system

So why is that? The new skills-based immigration system requires businesses to pay sponsored employees a minimum of £25,600 a year and the role must be skilled at A-level equivalent or above – this alone causes massive problems for any care business considering becoming a sponsor due to the fact that many jobs across the sector are considered ‘low skilled’ and pay (often considerably) less than £26k a year.

The many European migrants who previously would have been able to enter the UK under the principle of free movement of people, and work in the care sector, will also likely be barred from entry under the points based system from January.

With this being said, a new Health and Care visa came into effect on 4 August 2020, allowing trained health care workers with good English to benefit from:

• Fast-track entry into the UK;
• Support with the application process for themselves and their families;
• Reduced visa fees; and
• Exemption from the Immigration Health Surcharge which is currently £400 per year (increasing to £624 from 1 October 2020). The Immigration Health Surcharge is a mandatory and additional charge to the cost of the visa payable by the individual which grants them use of the NHS. Understandably those working in the health and care sector felt aggrieved about having to pay for a service they actively participate in. Thankfully, the Government decided that those eligible for a Health and Care visa will not have to pay this charge under the new immigration system.

However, and controversially, there are some key issues with this visa. In reality, only a number of roles across the health and social care sector are eligible. These include paramedics, social workers, nurses, midwives, scientists, pharmacists, and medical practitioners, among others.

All are vital roles of course, but they don’t span the full spectrum of the positions required across the health and social care sector. Besides, applicants still have to be sponsored, which means meeting the skills and salary criteria, with minimum salary rates at £30,000 for most roles under the current system. Many feel that the new system will widen the dichotomy with the care sector, deeming only some roles of ‘deserving’ of a visa.

The future of social care?

So, what does this all mean for social care workers? Employers across the sector are actively being encouraged to invest in the care workforce through sponsoring migrant workforces, though this isn’t made easy for any business as the financial and administrative burdens are arduous.

The process of hiring a migrant worker

First, businesses who are eligible must become a licensed sponsor, which currently involves an application process and a fee of either £536 or £1476 depending on the size of the business. If approved, the business must then be satisfied that the employee they want to sponsor satisfies strict eligibility criteria. Additionally, under the current system, most sponsors will have to prove they cannot recruit for the vacancy from the local workforce although this requirement will be removed from January.

Eligible candidates are then issued a certificate from the business (costing the business £199 per certificate) and the worker must then apply for their own visa. The business must also pay an Immigration Skills Charge per sponsored worker, and the amount will depend on how long they want to sponsor the worker for but could be as high as £1000 per year per sponsored worker. The Home Office has said it plans to simplify the process of becoming a sponsor, but details have not yet been released.

It’s also worth considering the severe penalties of non-compliant sponsors, meaning that many employers will simply not go through with the sponsorship process at all. Recruitment agencies have already said that due to the uncertainty surrounding Brexit and the new immigration system, businesses are electing not to hire foreign nationals.

Going beyond the Health and Care visa

Although the Home Office considers the Health and Care visa to be in many ways a symbol of gratitude to those working on the front line during the pandemic, the Government has failed to recognise the vital roles of everyone operating within the sector, from the very top to the very bottom. All are vital cogs in the wheel, and all are needed to make the sector work.

So, what can the Government do to support people who want to work in the care sector in the UK? Hypothetically, there are a few things that could be done.

One option is to lower the wage and skills threshold of the new system. Currently, the wage threshold can be reduced to £20,480 a year for foreign nationals who have specific characteristics, like a PHD. However, most jobs in the care sector do not require this level of education. Lowering the salary and skills threshold would allow for greater opportunities for those who want to work in the care sector in the UK. But based on policy statements, this is unlikely to happen as the Government remains strong in their position to only allow the highest ‘skilled workers’ into the UK.

Alternatively, the Government could create a separate visa route for low skilled, temporary and seasonal workers creating broader and more variable visa lengths. This would give sector employees the flexibility to hire workers as and when they are needed. However again, the Government isn’t (currently) looking to introduce a ‘low skilled’ visa route.

The Government could also place jobs in these sectors on the shortage occupation list. This is a list of job roles within the UK in which the Government believes there is a labour shortage. While the care sector may not be in an acute labour shortage yet, it could well be as soon as the ramifications of the new points based immigration system really kick in. This route also means the Government is much more flexible with the immigration criteria to fill the labour shortage. The benefit of a role being on the shortage occupation list is that migrants will be able to apply for a visa even if a job does not meet the wage threshold of £25,600 a year, although equally the role cannot be earning less than £20,480.

At present, the Government has yet to launch any detail supporting those who wish to work in the care sector. But with a second wave of the pandemic possibly on the rise within months, questions are being asked over the potential risk of losing tens of thousands of health and social care workers when the UK needs them more than ever before.