Immigration law update: Expansion of Health and Care Visa Scheme

Government announcement 

On 24 December 2021, it was announced by the government that care workers, care assistants and home care workers would become eligible for a Health and Care Visa for a 12-month period. In their press release, they state ‘this will make it quicker, cheaper and easier for social care employers to recruit eligible workers to fill vital gaps.’ 

They note that this is due to staff shortages within social care sector and pressures on the existing workforce. The announcement follows the recommendation from the Migration Advisory Committee (‘the Committee’) to make care workers and home carers eligible for the Health and Care visa. 

To understand the pressures and issues placed by the social care sector, at GNR Solicitors we have taken a deeper dive to help care providers understand the requirements.

Immigration and adult social care

Due to the UK’s ageing population, the demand for adult social care has increased and is likely to continue to do so. It is also widely reported that recruitment and retention of workers is also problematic within the sector.

The Committee’s report notes that although the ending of free movement is likely to contribute to the recruitment problems experienced by social care, interestingly non-EEA care workers make up a greater share of the sector compared to those from the EEA. 

It also reports that ‘the share of non-UK born care workers has increased over time accounting for 19% of the occupation in the UK in 2012 and 24% in 2020.’ The report also states that ‘the share of non-UK born workers in the adult social care sector is greater than in the wider economy.’

Government proposals and next steps for care providers

The Committee recommendation to the Government stated:

“We therefore recommend that the Government make Care Workers and Home Carers (SOC Code 6145) immediately eligible for the Health and Care Worker Visa and place the occupation on the Shortage Occupation List (SOL).”

The SOL contains those occupations which are thought to be in ‘shortage’, where employers struggle to secure adequate numbers of workers with the required skills for vacancies. 

The government’s press release on 24 December 2021 provides initial insight into their immigration plans. Firstly, care staff are to be added to the Shortage Occupation List. They state that this will be a ‘temporary’ measure coming into effect in early 2022 and will be in place for a minimum of 12 months. It is therefore unclear whether this could be a long-term option for care providers to explore, given the use of the language ‘temporary measure,’ or perhaps a short-term measure to alleviate current difficulties.

By way of background, on 04 August 2020, the Government launched a ‘Health and Care visa’ for eligible health workers, trained to a recognised standard and have good English language skills. The Health and Care visa forms part of the Skilled Worker route. 

Currently, Health and Care visa applicants must meet all the standard immigration requirements of the Skilled Worker route, in addition to the specific Health and Care visa requirements. Currently, only senior care workers fall under an occupation code making them eligible for the Health and Care visa. 

Under the new proposals, care workers, care assistants and home care workers are to become eligible for Health and Care Visa, therefore it will not be limited to just senior care workers. The government announcement also states that care workers and carers would be able to bring their dependents, including partner and children, with the ‘Health and Care visa offering a pathway to settlement should they remain employed and wish to remain in the UK.’

Immigration process

Below, we have provided an overview of the current process and requirements for employers in relation to the sponsorship process, although it should be noted that the process is far more detailed with several additional requirements to be met.

Sponsorship licence:

The employer must have a sponsorship licence if they want to sponsor an oversees national who is not a settled worker and does not have immigration permission to work in the UK. This includes most EU, EEA and Swiss nationals who arrived in the UK after 31 December 2020. The employer must ensure the worker is eligible. 

Currently the employer must meet the immigration requirements for the Skilled Worker route as the Health and Care visa forms part of the Skilled Worker route. The employer will be required to meet the specific requirements for a licence such as salary requirements as well as other factors. The government announced that the inclusion on the Shortage Occupation List will stipulate an annual salary minimum of £20,480 for carers to qualify for the Health and Care visa. 

To apply for a sponsorship licence, this attracts an application fee dependant on the size of your organisation.

Certificate of Sponsorship:  

When an employer is granted a licence, they must assign the worker a valid Certificate of Sponsorship (CoS), once the allocation has been obtained, using their sponsorship management system (SMS) account. However, before doing so, the employer must ensure that the worker meets all the eligibility requirements and be able to explain how the criteria has been met.

The employer is also expected to comply with all their sponsor duties with key personnel allocated roles and responsibilities.

Assigning a CoS does not guarantee the worker will be granted entry clearance or permission. The worker must meet all the immigration requirements of the route in which they are applying. 

There is also a fee payable by the employer per CoS. In addition, the employer is required to pay an Immigration Skills Charge for each year of sponsorship. 

Worker’s immigration application:

To qualify for a Health and Care Worker visa, the applicant worker will need to provide their assigned certificate of sponsorship reference number provided by the employer. This must be an approved UK employer who holds a sponsor licence. The applicant will also be required to submit various supporting documentation and meet various other eligibility requirements. 

Applicants will also be able to bring their dependants, including partner and children. The government state that the ‘Health and Care visa will allow applicants and their dependents to benefit from fast-track processing, dedicated resources in processing application and reduced visa fees.’ Applicants will be required to pay the visa application fee, however they will be exempt from the Immigration Health Surcharge.

It should be noted that the above information is correct as per the latest government announcement of 24 December 2021 but may be subject to change. The precise immigration requirements for care workers, care assistants and home care workers are still due to be published to see if there are any additional or revised requirements. 

The above does not constitute legal advice.

Other employment legal updates within the care sector:

The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (Regulations) 2021 were made on 22 July 2021 and came into force on 11 November 2021.

They amend the safe care and treatment provisions in regulation 12 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 by inserting a new provision requiring staff employed in Care Quality Commission (CQC) regulated cares homes in care homes in England to be fully vaccinated unless they are exempt.

In view of the exemptions such as for clinical reasons, it will be the care homes responsibility to undertake a risk assessment to reduce the risk of transmission. There is also a need to ensure legal risk is appropriately managed to avoid any potential employment claims such as discrimination. 

There are also other requirements to consider such as checking vaccination status, record keeping and complying with data protection laws such as how the employer will use, store and delete vaccination data, in line with UK GDPR. 

The above are just some of the legal obligations required for consideration by care homes. 

It should be noted that the above information is correct as of 10 January 2022 but may be subject to change. The above does not constitute legal advice.