Can Immigration Address the Labour Shortage in the Agricultural Sector?

Since the UK’s exit from the EU, and the ending of freedom of movement rules for EU citizens, the UK has become subject to more restrictive immigration rules.

Seasonal Worker Visa

The Government has since introduced time-bound visas that have stringent conditions for seasonal agricultural workers. The scheme currently allows for 47,000 places a year, with 45,000 places allocated to the horticulture sector and 2,000 places allocated to the poultry production sector.

Under the scheme employers can sponsor seasonal workers including:

• Horticulture - for a maximum period of 6 months of employment in the UK in any 12-month period.
• Poultry production for a period beginning no earlier than 2 October and ending no later than 31 December each year.

Any business looking to recruit an overseas national under a Seasonal Worker route must first have in place a valid licence to sponsor this category of worker and then they will be able to issue a Certificate of Sponsorship.

Skilled Worker

Although it won’t be an answer to low skilled and low wage occupations, farming and agriculture can look at the skilled worker visa for recruiting overseas workers.

Any business looking to recruit via this route would also need a sponsor licence and the occupation would need to qualify for the skilled worker visa. For example, those looking to recruit:

• Farm Managers
• Stock Managers
• Nursery Managers
• Forest Managers
• Fish Farm Managers
• Racehorse Trainers
• Estate Managers
• Market Gardeners

Right to Work checks

Employers have a duty to prevent illegal working and perform checks to ensure that employees have the right to live and appropriate right to work within the UK. This also applies to those who remain in the UK after Brexit under the EU Settlement scheme.

To comply with their obligation to prevent illegal working, an employer must:

• Carry our “right to work” checks
• Conduct follow up checks on employees who have limited permission to live and work in the UK
• Keep records of all checks carried out
• Not employ anyone who they suspect has reasonable cause to believe is an illegal worker

What is the three-step right to work check?

• Obtain the employee’s original documents
• Check that the employee has the right to work by preforming either:
  • a manual document check;
  • Digital identity document validation technology (IDVT) (available for British and Irish Citizens only); or
  • a Home Office online right to work check (non-British and non-Irish citizens)
• Copy documents which you have manually checked and record the date of the check and the date of subsequent follow-up checks.

It is imperative that the business does these checks and retains a copy of them to obtain a statutory defence.

The checks also needs to be dated and we would advice that the person conducting the check writes a declaration on the documentation showing that they have conducted the relevant checks and signs it.

If an employer becomes aware that an employee may not have the right to work in the UK, then immediate termination may be appropriate under such circumstances, as the employment contract is void and unenforceable by either party there is no obligation on the employer to service notice or pay notice pay.

But if there is any doubt or ambiguity you should take specialist advice before dismissing as it is a complex area and it can give rise to employment tribunal claims for unfair dismissal and discrimination.

For example, if a migrant employee has a pending application with the Home Office, then they may have a legitimate right to work and dismissal in this situation would be high risk.

Updated guidance

In February of this year, the Home Office published updated guidance on right to work checks which applies to right to work undertaken after 13 February and confirms that:

• Confirms the increase to the maximum civil penalty for non-compliance has been raised to £45,000 per illegal worker for a first breach and £60,000 per illegal worker for repeat breaches.
• Removes the 28-day concession to allow late applications to the EU Settlement Scheme for employees who are EEA nationals or non-EEA national family members, who were employed on or before 30 June 2021 and who it transpires (during an internal audit or otherwise) do not hold a lawful immigration status permitting them to work in the UK. The guidance now states that, "if an employer identifies an existing employee who no longer has a right to work, they are required to take the appropriate action. This may include contacting the Home Office for support or taking steps to terminate employment".
• Confirms that employers should secure additional evidence where they are employing someone for "supplementary employment" (they are sponsored by another employer for their "main role") to ensure that the worker is not undertaking more than the permitted 20 hours a week supplementary employment in total. For example, asking for a letter or evidence from the sponsoring firm that they are still working for their sponsor.

Should you require advice in relation to an business immigration matters, please contact Adam Haines, Business Immigration Partner at Aaron & Partners.