Advice

Hiring a chef from outside the UK post-Brexit

By Chris Harber, head of immigration, at law firm Boyes Turner

The double whammy of Covid-19 and Brexit have created a recruitment crisis in the hospitality sector, with some businesses reducing their operating hours or closing altogether. 

Brexit has had a big impact on the ability of UK restaurants and hotels to recruit chefs from overseas. EU nationals can no longer travel to the UK to work under freedom of movement, however, new immigration rules mean the sponsorship of chefs from overseas has been opened up with a significant reduction in the minimum pay rate.

Key changes to the immigration rules

Under the pre-Brexit immigration rules, businesses could only sponsor a chef from overseas to work in the UK if the role met the strict definition of a ‘skilled chef’. This meant a head chef, executive chef or a similar senior role. The individual needed to have five years’ prior experience at that level and would need to be paid at least £30,000 for their role in the UK. Other types of lower skilled chefs were simply prevented from being sponsored, as chefs were not considered to be a high enough skill level.

The rules around sponsorship changed in December last year. As a result of the introduction of the new Skilled Worker category the minimum salary level has been reduced and the minimum skill level at which migrant workers can be sponsored has dropped to RQF Level 3, which now means that all chefs are eligible for sponsorship under the Skilled Worker category. In addition, previous restrictions on ‘fast food’ or ‘standard fare’ outlets sponsoring chefs have also been lifted. However, the guidance specifically rules out ‘cooks’ from being sponsored.

Do I need a Sponsor Licence?

One aspect which hasn’t changed is that employers must hold a Sponsor Licence before being able to offer sponsorship to migrant workers who don’t hold a visa in another category (such as the EU Settlement Scheme or as the dependant of a migrant worker). 

There is a lot to consider before applying for a licence. You will need to ensure you are able to comply with your sponsor licence duties; restaurants are a high priority of the Home Office, in terms of inspection. Therefore, you would be well advised to prepare for an inspection before the Home Office will grant a licence. 

There are also administrative costs to consider. The cost of a sponsor licence is £536 for a small business or £1,476 for a medium/large business. You will need to pay £199 for a certificate of sponsorship, to sponsor one individual. If you are recruiting from overseas you will need to pay something called the Immigration Skills Charge. This is £364 per year per sponsored individual, for a small business, or £1,000 for a medium/large business. 

How much do I have to pay my chef?

Normally, you will need to pay your chef at least £25,600 based on a 39-hour working week, however, with the Skilled Worker category there are options to pay less than this depending on the migrant worker’s personal circumstances. 

If the migrant worker is classed as a ‘new entrant’, then you can pay considerably less – just £20,480. New entrants include individuals under the age of 26, as well as ‘recent graduates from UK universities, meaning the individual was most recently granted a Tier 4/Student visa, which expired not less than two years before they apply for their skilled worker visa. They must have completed a degree at bachelor’s level or above. 

If you are going to rely on the new entrant rate it’s important to highlight that you can only rely on this rate for four years, after this the Home Office will expect the migrant worker’s salary to have increased to at least £25,600.

Do I need to advertise the role first?

There is no requirement for employers to advertise the role in the UK before offering the role to a migrant worker. However, the Home Office still requires employers to retain evidence of any recruitment activity that you have undertaken. 

If you did not advertise the role, you must be able to explain how you recruited the migrant worker. For example, if the migrant worker made a speculative application, was referred to you or worked for you previously these could all be reasonable reasons why you did not advertise the role.

The end of freedom of movement certainly makes recruiting chefs from the EU more challenging. However, the sponsorship under the new Skilled Worker category, with its lower salary and qualifications threshold, is worth consideration for businesses who are hoping to address their recruitment issues by considering candidates from overseas.

Byline by Chris Harber, head of immigration, at law firm Boyes Turner.

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