UK Visa applications fees are becoming increasingly costly; the visa fees for a Skilled Worker visa for five years can exceed £12,000 for the main applicant. The importance of hiring skilled workers to assist in an entity’s growth and success versus the upfront cost of doing so creates a nexus.
A key decision for employers is consideration of the financial level of support provided to current or prospective employees hired under a skilled worker sponsorship licence.
Overview of fees
For most UK work related visa application, Government fees constitute the majority of the total costs, usually these fees will exceed professional legal fees. Government fees include the visa application fee, the Immigration Health Surcharge (IHS), the Certificate of Sponsorship (CoS) fee, and the Immigration Skills Charge (ISC). Other optional fees include priority services fees to expedite a visa application.
The level of support financial provided by employers
Whilst many employers will have a well-established policy in place to guide them, many employers do not. The extent of support that an employer can offer to provide can range from, the employee covering all of the fees (that they are legally required to pay) to employers paying for all of the fees associated with the visa application.
Many employers adopt an ad-hoc approach and base their decisions upon a variety of factors such as:
- Seniority of the employee
- Their skill-set
- Their shortage in the employment market
- Departmental budgets
- The demand for the employee against business needs
Employers take one of the following approaches generally:
- Covering the full costs associated with the immigration application for the employee. Some employers will also cover the costs of the employee whilst others will not.
- Paying only the professional fees and requiring the employee to cover all of the other costs that can legally be passed on.
- Paying the mandatory fees in order the employee to be employed but not enhanced fees such as priority service to expedite an application.
- Requiring a minimum length of service with clawbacks if the employee leaves prematurely.
Important considerations for employers
- Employers need to consider, socio-economic factors such as labour trends along with inflation rates, shortage of talent, the cost-of-living crisis, employee morale and well-being.
- There have been instances of employees rejecting or withdrawing from job offers over a lack of agreement as to who will pay the visa costs. It is important for relocation packages to balance the cost of visa fees with the ability to attract and retain talent critical to an entity’s success.
- Employers should be duly advised as to the legal options available to them to protect their investments in respect to visa applications. Employers can insert a minimum service length clause. This means, if an employee leaves before reaching the requisite length of service the employer can clawback a percentage of the visa application fees.
- It is important for employers to be consistent with the level of support that they offer. A case-by-case approach can lead to an imbalance in employee morale and give rise to potential discrimination claims.
Clawback clauses
If an employer intends on inserting a clawback/repayment clause into their contract, they will need to consider the following relevant points:
- The rule against penalty clauses in the event of a breach of contract (an individual signs the contract and begins the visa process but does not commence employment);
- The principles surrounding restraint of trade (where there is no breach but the individual leaves within a few weeks or months such that the employer has not had the ‘benefit’ of the financial investment made;
- Discrimination.
To avoid any attack on the enforceability of a repayment clause, the contractual term must be proportionate. A ‘sliding scale’ based upon a greater reimbursement if an employer leaves sooner rather than later will be an important element to increase the prospects of the term of the contract being enforceable.
Conclusion
Hiring highly skilled individuals to grow or enhance your business is a primary aim when employing an individual from abroad. The initial outlay in visa application costs can be daunting. However, in our experience clients with a well-prepared policy or agreement in place, should the intended hire fail to commence work or leaves prematurely mitigate the cost risks associated with sponsorship.
Quastels
Our corporate immigration team can provide holistic legal advice across employment and immigration law. If you require advice or assistance in preparing a clawback or repayment agreement, contact Jayesh Jethwa at corporateimmigration@quastels.com
