Immigration: filling the skills gap in the pharmaceutical industry

Jayne Sinclair

Manches

Given the increase in spend on science and technology in Asia, UK pharma could well be soon looking to recruit talent from this region. Given this, Jayne Sinclair enlightens us on the UK immigrations laws that have relevance to the pharmaceutical industry.

Graduates in science, technology, engineering and maths are vital for the UK’s future prosperity but are in short supply because there are challenges in recruiting ‘home-grown’ students onto degree courses in many core disciplines such as clinical pharmacology, experimental medicine and pharmacokinetics1.

In contrast to the US and European Union, spending on Science and Technology in Asia is growing at a far more rapid rate. According to a recent article in the journal Science, China’s research publications output is likely to surpass America’s by 20132. Therefore, unless the trend changes, it is likely that the UK’s pharmaceutical industry will be looking more and more to recruit the best and the brightest from Asia to work in the UK.

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“In contrast to the US and European Union, spending on Science and Technology in Asia is growing at a far more rapid rate.”

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To employ an overseas individual, employers need to be mindful of immigration restrictions. There are barriers that need to be overcome for individuals wanting to gain entry to work in the UK. This problem is compounded because a number of immigration routes have recently closed.

Employers need to ensure they keep abreast of the latest developments in the UK immigration system and carry out the necessary checks in order to comply with their obligations to prevent illegal working. If an employer employs an individual without checking their documentation and they have no right to work in the UK, they will face tough sanctions in the form of a civil penalty amounting to up to £10,000 per illegal worker. If an employer knowingly employs such an individual they may face a criminal conviction of up to two years imprisonment or an unlimited fine. The following information provides a brief overview of the elements of the immigration system that are most applicable to the pharmaceutical industry.

What is the points-based immigration system?

This is the system introduced in the UK in 2008 whereby many individuals wanting to work in the UK are required to score points based on various attributes, such as their level of qualification, age or English language skills. If they score sufficient points they go on to the next stage in the process. If they do not, they cannot enter the UK to work. The points-based system is set up in five tiers depending on the category of individual. For example, Tier 1 relates to individual applicants without a job offer, Tier 2 relates to skilled workers with a job offer and Tier 4 is for students. These are the main Tiers relevant to the pharmaceutical industry.

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“…it is likely that the UK’s pharmaceutical industry will be looking more and more to recruit the best and the brightest from Asia to work in the UK.”

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Tier-2 – skilled workers with a job offer

This category applies to foreign nationals who have been offered a skilled job to fill a gap in the workforce that cannot be filled by a settled worker. It applies to general job offers and intra-company transfers where an international company wants to move staff from an overseas office to a UK office. For general jobs, if a vacancy cannot be filled by a settled worker after having been advertised for at least four weeks or if the job is on the ‘shortage occupation list’ drawn up by the independent Migration Advisory Committee, an employer can consider ‘sponsoring’ an overseas individual to work in the UK via this route. There is no need to advertise a vacancy for an intra-company transfer but an individual will need to have worked for the company for 12 months before they can transfer to the UK.

What is a Tier 2 sponsor?

A sponsor is a UK based organisation (registered with the UK Border Agency as a Licensed Sponsor) that wishes to employ a national of a country outside the European Economic Area and Switzerland. For registration as a sponsor to be accepted, the employer will need to meet certain requirements and accept certain responsibilities to help with immigration control.

Once registered, a sponsor receives a sponsorship licence. This enables them to sponsor an overseas individual to work for them in the UK.

Once a sponsor decides to employ an overseas individual it will need to assign a certificate of sponsorship to that person. This enables the individual to apply for leave to enter or remain in the UK under the Tier 2 scheme. This certificate acts as an assurance that the applicant is able to undertake a particular job and intends to do so.

What about individuals without a job offer?

The Tier 1 (exceptional talent) category applies to those who are internationally recognised as world leaders or potential world-leading talent in the fields of science and the arts. Those holding this visa do not require a sponsor to work in the UK.

Every application must be endorsed by one of four designated competent bodies. The endorsements available are divided between each of the designated competent bodies in that field, as agreed between the Home Secretary and those bodies.

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“…many individuals wanting to work in the UK are required to score points based on various attributes, such as their level of qualification, age or English language skills.”

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Successful applicants can stay in the UK for 3 years and 4 months. They can apply to extend their stay, and if successful, will be able to stay for another 2 years.

They will not be allowed to enter or stay in the UK if the designated competent body that endorsed their application withdraws its endorsement.

If an employer wishes to recruit someone with Tier 1 (exceptional talent) permission to work in the UK, they do not need to do anything further relating to immigration rules except check, copy and retain, on a yearly basis, the individual’s documents recording their valid permission to work.

Adult students – Tier 4 (general)

Students can work up to 20 hours per week during term time as long as:

• The course they are studying is at degree level or above and they are being sponsored by a Higher Education Institution (HEI), or

• They are on a short-term study abroad programme in the UK and are being sponsored by an overseas HEI.

They can work up to 10 hours per week during term-time if:

• They are on a course below degree level and are being sponsored by a HEI, or

• They are studying at any academic level and are being sponsored by a publicly funded further education college.

All students on this visa can work full-time during vacations or do a work placement as part of their course. However, the work they do must not fill a full-time permanent vacancy.

Students attending a course lasting 12 months or more are allowed to stay for an additional 4 months after their course has ended. After this they are required to leave the UK or can apply to switch to a Tier-2 category as long as they have lawfully obtained a UK degree, postgraduate certificate in education or professional graduate diploma of education. A PhD student does not need to have completed their course, but must have completed at least 12 months’ study towards it in the UK.

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“Students attending a course lasting 12 months or more are allowed to stay for an additional 4 months after their course has ended.”

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Students who have completed their course and apply to remain in the UK under the points-based system before their existing permission to stay expires, can work full-time (within the above limits) until their application is decided.

Student Visitor

This visa applies to someone who wants to study in the UK for up to 6 months (or up to 11 months to take an English Language course) and doesn’t want to work while they are in the UK. This visa cannot be ‘switched’ to extend their stay as a Tier 4 (General) student. If they do want to apply for a Tier 4 visa they will need to return to their own country and apply from there. This visa doesn’t give any entitlement to work in the UK. It is important for employers to remember this as employing an individual on a student visitor visa is illegal and the aforementioned hefty penalties will apply.

References

1. ABPI (2008) “Skills needs for Biomedical Research”

2. Surging research in Asia is an opportunity for us – FierceBiotech Research http://www.fiercebiotechresearch.com/story/surging-research-asia-opportunity-us/2012-04-16#ixzz20VpgSgyC

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DISCLAIMER: This note is intended merely to provide a summary of the law in this area and is not a comprehensive guide. It is not intended to provide legal advice for specific cases. The law and practice in this note is stated as at July 2012.

About the author:

For more information please contact Jayne Sinclair on telephone: 01865 813655 or email: jayne.sinclair@manches.com.

Jayne specialises in providing immigration and employment advice to a wide range of organisations and individuals. She can help individuals gain entry to the UK, apply to settle here and become British citizens.

Will UK pharma be recruiting more talent from Asia?