According to recent data, around 300,000 foreign workers are currently employed in the UK care sector, and over the last 12 months the number of overseas recruits has increased, but the number of visas granted has decreased.
Any business wanting to recruit a foreign worker from abroad, needs to first apply to UK Visas and Immigration (UKVI) for a sponsorship license. Only if the licence is approved, will the business be entitled to employ workers from abroad to work for the business in the UK. The same applies when looking to employ a foreign worker who is already in the UK on another route. Employing foreign workers without authority, is a serious offence, liable to huge civil penalty fines.
Impact on care
UKVI recently introduced measures to bring net migration down, and stepped up scrutiny of the visa system, not least in response to the alleged high levels of non-compliance and worker exploitation, as well as unsustainable levels of demand. These measures, including the significant increase on the financial income threshold, have had a particularly harmful impact on the UK health care industry,
One important change to immigration rules took effect on 11 March 2024, when new health care workers were stopped from applying to sponsor partners and dependents as family members joining them. A partner and children now cannot apply to join or stay in the UK as dependants unless the care worker was employed as a care worker or senior care worker in the UK and on a Health and Care Worker visa before 11 March 2024.
The impact of the changes is stark - Home Office data reports 50,591 Health and Care Worker visas granted to main applicants in the year ending September 2024, representing a 65% decrease compared to 2023. Further, the number of grants for ‘Health and Care Worker’ main applicants fell by 84% to 13,131 between April and September 2024, compared with 80,541 grants in the same period in 2023.
Prior to these changes, international applications had been rising steadily, not least because of the care sector’s reliance on international recruitment to help tackle its skills and staff shortages. Not only have the changes had an impact on the number of applications, but they have also impacted the real costs of recruiting overseas workers.
The process of recruiting care workers from overseas
Employing care workers from overseas begins with an application for a sponsorship licence from UKVI. To apply for a licence, which can be a complex process, you need to complete documents with detailed information about your care business.
Only when this licence application is approved, is the business entitled to employ workers from abroad, and for them to enter the country and work for your care business. The same applies when employing a foreign worker already in the UK following a different immigration route.
You can only assign a certificate of sponsorship to the applicant (employee) with an approved licence. In turn, this sponsor licence enables the employee to apply for a skilled worker visa.
Employing foreign workers without authority and a sponsorship licence approved by UKVI is a serious offence that carries huge penalty fines.
UK visas for the care sector
There are many different types of visas enabling foreign nationals to work in the UK, so here we identify the visas most relevant to overseas workers and the UK care sector.
Health Care Worker Visa
The Health Care Worker Visa (HCW) is part of the Skilled Worker Visa route, which is a sponsored working visa route that enables skilled foreign nationals to work in the UK.
The HCW visa is designed for healthcare professionals such as doctors and nurses, and adult social care workers. It’s a work sponsored route and therefore requires the employer to have a sponsorship licence before sponsoring the individual on a health care visa to undertake a role within an eligible standard occupation code.
The HCW visa has certain benefits over the normal skilled worker route, including:
- Fast-track processing for entry into the UK.
- Support of a dedicated team within UKVI for processing the visa.
- Reduced salary thresholds.
- Reduced visa fee.
- Exemption from the immigration health surcharge.
The only exception to the new immigration rules, allowing dependents, is if the care worker was employed as a care worker or senior care worker in the UK and on a Health and Care Worker visa before 11 March 2024, and/or meets one of the following criteria:
- Is currently still on a Health and Care Worker visa.
- Is extending their Health and Care Worker visa with their current employer.
- Is changing to a new job within the same occupation code while on a Health and Care Worker visa.
What are the Spouse Visa requirements?
A UK Spouse Visa is a settlement visa that allows a person to live together with their British partner in the UK for up to 30 months. It is one of the visas under the Family visa category, and can be extended for another 30 months if certain eligibility conditions are met. In certain circumstances, this is a route to settlement and living in the UK upon completion of either the 60 or 120 months in certain circumstances.
Spouse visas can be refused because the applicant fails to satisfy (or prove that they satisfy) the spouse visa eligibility requirements, such as:
- Income from employment.
- Accommodation conditions.
- Lack of evidence to show a genuine and subsisting relationship.
- Insufficient knowledge of the English language.
How can a partner be brought to the UK?
If an applicant is British, has settled status, refugee status and/or humanitarian protection, or is an EU national with settled or pre-settled status, their partner, spouse/civil partner, or fiancé can join the applicant in the UK provided they meet the requirements. There are different requirements for each of these categories.
The Entry Clearance Officer will review the application against the information given and the supporting documents that form part of the online application process.
Earnings below the minimum income requirement
From April 2024, there was an increase in the minimum financial income threshold when applying for a visa. The minimum threshold is dependent on the type of skilled worker visa/visa applied for and so it is best to seek legal advice. .
The financial threshold is on usually above the annual salary of most care workers, and so this move presents another barrier to overseas recruitment. However, there are other ways to meet the financial requirement. In the case of skilled workers, a salary can be reduced if the applicant is eligible as a new entrant, or if the role in the UK is on the Immigration Salary List (previously called the Shortage Occupation List) . For a spouse visa, there are some circumstances where meeting the income threshold is not required, instead showing adequate maintenance, such as receipt of certain types of benefits, will suffice.
There may be times when there are exceptional circumstances where a refusal will cause a breach of human rights, and it may therefore be possible to rely on credible third party support or future job offers.
Illustration
This fictional scenario explains how an application may help those on work sponsorship visas, such as nurses and other health care workers.
The sponsor, a qualified nurse, was sponsored by the NHS and came to the UK as a skilled worker, with her husband as a dependent. They were both were given poor advice in relation to their son, who entered on a visit visa valid for six months, meaning he subsequently became an illegal overstayer.
If her son had been required to leave the UK when the visit visa expired, in order to make an application from abroad, there was no family left in their home country, so sending him back was not an option.
Nor could the sponsor or her husband, who also worked for the NHS as a Clinical Support Worker, take leave of absence from their jobs and return to their home country with their child, in order to make a Visa application.
The normal immigration rules could not apply because the child was already in the UK and the sponsoring parents were not deemed as settled or British.
An application was made based on Article 8 Right to Family Life (ECHR). This is an unusual route outside of the rules, but because of the compelling compassionate circumstances, this was used to enable the argument it was in the son’s best interests and welfare, and important to avoid disrupting his education.
Both the UK Supreme Court and the European Court of Justice case law confirms that a child is entitled to family life with parents, and that the rights of children are of paramount importance, as stated in Article 8 of the ECHR.
The application was successful and acknowledged that a refusal in these circumstances would be a severe breach of the son’s right to a family life, and the child was granted leave to remain with his parents in the UK.
Other options
Businesses wanting to recruit a foreign worker or workers from abroad have several visa options
that allow people from abroad to work in the UK. These include employer-sponsored visas, unsponsored visas, charity worker visas, and temporary visas, which are available for seasonal workers and allows people to stay in the UK for up to six months.
As previously explained, any care sector business looking to hire from abroad must first apply for and have approved a UKVI sponsorship license, and select the specific Health Care Worker Visa. The same applies when employing foreign workers already in the UK. Only if the license is approved, will the business be entitled to employ workers from abroad.
Digital switch
Last year, UKVI announced the plan to move to eVisas. In preparation, all immigrants currently holding some form of status in the UK but not yet British Citizens, or those granted status under the EU Settlement Scheme who should already have an E-Visa, need to switch to an E-Visa as proof of their status.
Everyone currently having a Biometric Resident Permit, or BRP, card, wet ink stamp in a passport, or another form of proof that is not an E-Visa, must create an E-Visa as soon as possible.
The digital switch was originally set for midnight on 31 December 2024. However, on 4 December, UKVI seemingly bowed to pressure and issued a statement advising that as an additional safeguard, BRP and BRC holders should keep their old cards that expire on or after 31 December 20024 and continue to carry these when travelling internationally. The E-Visa digital switch is due to be reviewed again on the 31 March 2025.
As well as individuals, there are implications for organisations employing foreign workers. For the past few years, employers have had to carry out a ‘right to work’ check using the UKVI online employers checking service. Employers must understand that their workers will no longer have a physical card or other hard copy evidence of their right to live and work in the UK and that all proof of status will be online.
Once an E-Visa is created, it remains the responsibility of the individual to check their details are up to date, including updating any new passport details before travelling. As an additional safeguard, UKVI has advised BRP and BRC holders to keep and continue to travel internationally with their old BRP/BRC cards until 31 March 2025.
Currently, people granted entry clearance will still get a vignette sticker in their passports to allow travel to the UK within a certain time-window, after which they must create an E-Visa either immediately or when they arrive in the UK. Those granted status under the EU Settlement Scheme should already have an E-Visa, but it is advisable for EU nationals to access their online account to check their status.”
As with the roll-out of any large digital scheme, there may be teething issues. It is the responsibility of each individual to report any errors encountered during their own e-Visa application process. This is easy to do using to the dedicated page on the UKVI website - www.gov.uk/report-error-evisa.
As a result of the planned switch to digital, UKVI has ceased the issue of new BRPs since October 2024 to new customers in anticipation of the move because of the limited value to customers of providing a physical document valid for a very short period of time.
Right to appeal
Many visa applications do give a right to appeal if they are refused.
However, some applications, such as the visitor visa route, offer no right of appeal, and the only way of challenging it is by a Judicial Review.
Points-based visa applications, including skilled worker visas and health care worker visas, only have a right to administrative review where the application is looked at again to determine if the application was refused due to an error by the decision maker. No new documents or supporting statements can be used for this, unlike in an appeal.
Written by Andre Minnaar , Head of the Immigration team at Sydney Mitchell.
A version of this article was first published in the May issue of The Care Home Environment Magazine
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