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Pharma Firms Feeling the Pinch When It Comes to Recruitment of Overseas Talent

on Wednesday, 14 March 2018.

Businesses are struggling to attract and retain key talent from overseas as a result of uncertainty over Brexit.

Recent reports have confirmed that Pharma and Life Sciences businesses are struggling to attract and retain key talent from overseas as a result of uncertainty over Brexit. And although there is now more clarity over the position of citizens of European Economic Area ('EEA') and Swiss nationals (as we reported previously), the uncertainty is set to continue while the position of EEA and Swiss nationals arriving in the UK during the post-Brexit transition period remains unclear, as well as what arrangements will be in place after the transition.

In addition to the uncertainty facing EEA and Swiss nationals and their employers in the sector, there is now a great deal of uncertainty for employers seeking to fill key vacancies with Tier 2 sponsored workers with the monthly cap on Tier 2 (General) Certificates of Sponsorship (CoS') having been reached every month since December.

Background to the Tier (General) Limit

Restrictions on the number of CoS which are available to Tier 2 sponsors were first introduced in July 2010 after the Conservative-Lib Dem coalition government came to power. Currently, these restrictions apply to Tier 2 CoS which are to be assigned to all new hires in the Tier 2 (General) category, except those assigned to workers already in the UK, those who will be paid a salary in excess of a high earner threshold (currently £159,600), or those who are being sponsored in connection with the relocation of a high value business to the UK or a significant new inward investment project. A maximum of 20,700 Tier 2 (General) CoS where those criteria are not satisfied are available each year, with a proportion released each month in order to spread demand and any unused CoS carried over to the following month. Apart from a five-month period in 2015, the cap had never been reached until December 2017 following several months of high demand by sponsors.

Recent Demand

The 20,700 annual limit equates to an average of 1,725 CoS per month. Because demand is often higher earlier on in the yearly cycle (which starts in April), more CoS are made available in those early months, with fewer available later in the year. In previous years, a surplus has built up in the early months, but that has not happened this year. It is thought that the increase in demand has come principally from the NHS with hospitals struggling to retain and recruit doctors and nurses from EEA countries and so therefore turning to Tier 2 sponsorship of migrants from outside the EEA as a method of filling vacancies.

What Happens When the Monthly Cap is Reached?

If the monthly cap is reached then CoS are allocated on the basis of a points-scoring matrix (this is the Points-Based System, after all!) with more points awarded for jobs on the Shortage Occupation List, jobs in occupation codes which are at PhD level, jobs which meet the provisions in the Immigration Rules for 'new graduate jobs or internships', jobs which are one of a small number of defined key 'public service occupations' and finally on the basis of salary. This means that for the vast majority of jobs the availability of a CoS in months where demand exceeds supply will be based purely on how much the sponsor is prepared to pay the sponsored worker. When the cap was reached in December, where the type of job did not qualify for an award of additional points, the minimum salary required to meet the points threshold was £55,000.

What Steps Can Sponsors Take?

Currently, demand is not so high that roles on the Shortage Occupation List or which are at PhD level are unlikely to be affected by the cap. For the Pharma and Life Sciences sector, 'Chemical Scientists' and 'Biological Scientists and Biochemists' are classified as being at PhD level and 'Chemical Engineers' might meet the requirements of the Shortage Occupation List. However, pharmacist roles do not meet either of those definitions and do not meet the requirements to score additional points as a named public service occupation.

Sponsors who regularly recruit graduates may want to consider whether they are able to comply with the rules for "new graduate jobs or internships" so that CoS requested to fill those positions are granted more points. Otherwise, sponsors should look at the points their restricted CoS application will be awarded and consider whether an increase in salary might be justified in order to score more points. Please note, though, that the salary specified on the restricted CoS request must be in line with the rates specified or indicated in adverts placed as part of the Resident Labour Market Test exercise.

If a sponsor has operations overseas, they may wish to consider sponsorship under the Tier 2 (Intra-Company Transfer) category as an alternative as that is not affected by the cap. Another point to note is that the requirements for that category must be satisfied and in most cases employees transferred to the UK under this category will need to leave after 5 years.

Additionally, sponsors should take extra care to ensure that the relevant Tier 2 requirements have been complied with prior to submitting the request for a restricted CoS. The Home Office can ask for documents relating to the Resident Labour Market Test and other requirements and will reject restricted CoS requests if those requirements have not been satisfied. It would be very frustrating to have a request rejected for those reasons in a month when the points threshold would have been satisfied, only to then to have the request rejected again once the relevant requirements had been satisfied, this time because the points threshold had increased.

Hear More About This in Person

There is no bigger issue facing pharma in the UK at the moment than Brexit. We will be holding our annual PING (Pharmaceutical Industry Network Group) event on 5 June 2018 dedicated to how Brexit is going to affect the pharma industry. Among a wide ranging speakers covering regulation, trade, people and funding and a Bank of England forecast, there will be: MHRA Chief Executive, Dr Ian Hudson, who will address the future relationship between the MHRA and the EMA; and Dr Pete Gough, Executive Director at NSF Pharma Biotech, who will offer some practical steps on how to prepare for the new regulatory environment.

I will also be speaking at the Brexit event, with further thoughts into what Brexit means for movement of talent. If you want to attend, please contact us. Places are subject to availability.


VWV's team of specialist immigration lawyers provide assistance the full range of immigration issues which affect pharma and life sciences business. For more information, please contact Tom Brett Young on 0121 227 3759.

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