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Tier 2 Sponsor Licence Rules Relaxed for Restaurants

For a number of years, restaurants in Leeds and the surrounding Yorkshire area have faced a crisis around the recruitment and retention of experienced chefs due to the Tier 2 Sponsor Licence rules.

This issue has threatened the expansion and, in some cases, the existence of much-loved local establishments.

However, imminent changes to the Immigration Rules will make it easier for restaurants to sponsor skilled chefs under a Tier 2 General Sponsor Licence.

Immigration policy developments in recent years, have often seemed a relentless conveyer belt of doom. It’s therefore a relief to bring more positive news, with the Home Office set to abandon the ‘take-away’ clause with regards to sponsoring experienced chefs under Tier 2.

The Shortage Occupation List

Since its inception in 2007, the Migration Advisory Committee (MAC) has been responsible for periodically reviewing national job shortages and recommending which jobs should be included on the Shortage Occupation List.

Normally only jobs recognised to be at Regulated Qualification Framework Level 6 (which equates to a bachelor’s degree) can be sponsored under the Tier 2 General category. Skilled chefs are only classified at RQF Level 3 which, at first glance, might suggest that they can’t be sponsored.

However, since September 2008 skilled chefs have been included on the Shortage Occupation List which means that they are exempt from the minimum skill level requirement. Good news? Not so!

The Home Office placed another major barrier in the way of restaurants: a restaurant which has any kind of take-away function is prevented from sponsoring a chef.

The rationale for the ‘take-away’ clause was that a take-away service would have less need for genuinely skilled chefs.

However, as everyone knows this rule doesn’t accurately reflect the reality of the modern restaurant industry today (with the rise of services such as Deliveroo) and a number of high-end restaurants in both Leeds and Yorkshire now provide a delivery service in addition to their normal sit-down offering.

The take-away restriction is interpreted strictly by the Home Office and Courts alike. In a 2018 Case, the High Court recognised that the restriction would catch out many restaurants which had a legitimate need for skilled chefs, but still upheld the rule.

The end of the ‘take-away’ restriction

In its review of the Shortage Occupation List in May this year, the MAC finally recommended the removal of the take-away clause and in July 2019 the Home Secretary agreed to implement all of their recommendations in respect of the List (including the removal of the Clause).

The change will take effect this autumn, with the precise date not yet known.

What is a Skilled Chef?

It’s worth bearing in mind that despite this relaxation in the rules, only ‘Skilled Chefs’ as defined by the Home Office are capable of being sponsored under a Tier 2 Sponsor Licence.  This includes:

  • Executive chefs – limited to one per establishment
  • Head chefs – limited to one per establishment
  • Sous chefs – limited to one for every four kitchen staff per establishment
  • Specialist chefs – limited to one per speciality per establishment

In addition to this, the role must be remunerated at £29,570 per year ‘after deductions for accommodation, meals, etc’. Furthermore, applicants must have at least five years’ experience of equivalent status to the skilled chef position they are looking to enter.

Finally, although the take-away clause will be dropped, it remains the case that restaurants must not be a fast food or ‘standard fare outlet’. A standard fare outlet is one where the menu is designed centrally for outlets in a chain or franchise rather than in the individual restaurant.

For example, a business such as Wagamama has a standard menu across all branches and so would be unable to sponsor. On the other hand, Fuji Hiro Leeds (an independent Japanese restaurant) would be fine in this respect.

What else do I need to do to sponsor a chef?

The above all relate to the specific requirements around sponsoring a chef. However, you will also need to meet the general requirements for applying for a Sponsor Licence.

Additional benefits

There are various benefits which attach to shortage occupation jobs, such as skilled chefs.

Firstly, there is no requirement for the employer to do a Resident Labour Market Test (RLMT); the cumbersome process of proving that no suitable settled worker can do the job.

Secondly, Visa fees for the migrant are cheaper if the sponsored job is on the Shortage Occupation List. For example, a three year Visa applied for from abroad is currently £464 for a shortage occupation job, as opposed to £610 for other Tier 2 General jobs.

Finally, sponsored Tier 2 migrants can apply for settlement after five years if they meet a general annual minimum earnings threshold for settlement (which will be £40,100 by 2024).

However, Shortage Occupation List jobs are exempt from this requirement making the path to long-term settlement in the UK somewhat more achievable. In addition, from the employer’s perspective, once the migrant has settlement then they will no longer have to sponsor the individual.

 

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Louis MacWilliam

Associate and Head of Immigration
Business Immigration
LMacWilliam@LawBlacks.com
0113 322 2842
@LouisLawBlacks
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Louis MacWilliam Blacks Solicitors LLP