Action needed to protect offshore wind crew by 1 July

Out-Law News | 20 May 2021 | 10:32 am |

Jo Hennessy tells HRNews how employers need to plan for the end of the offshore wind workers’ concession
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  • Transcript

    Time is short if you are a business with offshore wind facilities in UK territorial waters. The key date is 1 July which, as Energy Voice reports, is when the offshore wind workers’ concession expires. This is the concession dating back to 2017 which exempts foreign nationals engaged in the construction and maintenance of offshore wind projects in UK territorial waters from the need to get a UK work visa. The message is, if you are one of those businesses, you need to review the immigration status of your workforce now, ahead of that 1 July deadline. 

    This has been flagged by immigration specialist Jo Hennessy in her article for Outlaw. She says the 2017 concession has been extended several times by the UK government, but it is unclear if it will do so again given the move to the new points-based immigration system. She says the ending of the concession is all the more concerning post-Brexit, as most EEA nationals will now require permission to work in the UK. So, assuming the concession will end on 1 July with no more extensions, what should employers with ongoing projects be doing about it, if anything? I phoned Jo Hennessy to find out. I started by asking her to give some context to this issue:

    Jo Hennessy: “So, the issue here is we've got ongoing uncertainty generally around the immigration rules in the UK that apply to seafarers and the crew working on vessels who are involved in the construction and maintenance of wind farms tend to be seafaring crew. The general position is that most crew that come into the UK, either on a vessel or to join a vessel, where they are under engagement to leave UK territorial waters on that boat shouldn't require UK visas. But the difficulty is that there's really wide discretion for immigration officers to scrutinise that and in doing so they would typically look at when is that vessel leaving UK waters and is that within a reasonable time and if they think that they're spending all, or the majority, of their time working in UK territorial waters that's when they're tripped into requiring a work visa in order to work in the UK. So, there's a bit of ongoing uncertainty and quite wide discretion for immigration officers in how they look at that which can lead to some inconsistent approaches. For the wind farm sector that uncertainty was taken away when this offshore wind farm concession was introduced and it essentially exempts those crew members from that requirement to have a UK work visa, regardless of the amount of time that they're spending in UK waters. The concern that we have now is that concession was introduced in 2017 and it has been extended several times since then. The current extension runs until 1 July but we don't yet know whether that will be extended further, or if there will be a more permanent solution put in place for the sector or, failing that, we're back to that position of having to weigh up and run the risk of these workers being told that actually they need to have a work visa in order to work in the UK, which is obviously creating quite a bit of concern for employers in the sector when they're planning future projects include changes for these projects in UK waters.”

    Joe Glavina: “In your Outlaw piece you say it would be a good idea now for employers to review their crew nationalities. What do you mean by that?”

    Jo Hennessy: “Yes, well, the hope would be obviously if the concessions were extended or replaced with something, then we will not have to think about this, but employers are coming to us now and saying, well, we need to make contingency plans, we have projects straddling this time-scale and so we need to know how we get the crew that we require into the UK. One aspect to look at the moment is the nationalities of the crew. If any of the crew members are EEA nationals it is worth exploring whether they have any other options under the Withdrawal Agreement following Brexit. They will not all necessarily have options. The key routes that you would look at would be the EU settlement scheme or frontier worker permits, both of which will be dependent upon those individuals having been in the UK during 2020. So that's worth exploring as an alternative to costly work visas and also concerns about whether particular rules will even qualify for those visas but it will not be an option for everybody and it is worth noting that the EU settlement scheme applications have to be in by the 30 June so there isn't a huge amount of time and frontier worker permits have to be held if people want to enter the UK as a frontier worker from 1 July onwards and that is likely to be the most appropriate route, actually, because frontier worker permits are aimed at European nationals who live primarily outside the UK but commute in to undertake work which a visitor, for example, wouldn't typically be permitted to carry out. So, it could remove some of the ambiguity around when a work visa is required and when it isn't and provide some comfort for the employer in the UK.”

    Joe Glavina: “You are advising employers to carry out an assessment to identify those roles which qualify for sponsored work visas. Why is that necessary?”

    Jo Hennessy: “Well, there will potentially be some crew where work visas will be required maybe due to their nationality, or obviously, if the concession falls away, and typically will then be looking at having to get sponsored work visas under the points-based system. So, the two routes there would be skilled workers or intra-company transfers and both of those rates have various eligibility criteria. So, that would include for example, looking at the skill level of the role, the salary package, the English language capabilities of the individual, to map out which route is feasible and it may be even though some of the skill and salary thresholds have been lowered with the rule changes at the end of last year for skilled workers, some of these positions still may not qualify for work visas in the UK and it is probably worth employers identifying that as early as possible so they can have contingency plans and think well that rules out, potentially, nationalities that require work visas in the UK so how else will we source those skills, how will we crew these vessels to undertake these projects going forward if we have to look elsewhere?”

    Joe Glavina: “Finally, Jo, as a back-up, is it worth perhaps considering a sponsor licence if you haven’t already got one of those?”

    Jo Hennessy: “Yes, so if there are individuals that would qualify for work visas in the UK under the points-based system, and a few employers have to secure those to be able to create the vessels with appropriate skills for safety, etcetera on these projects, that will require them to get a sponsorship licence if they don't already have one. That involves applying to the Home Office for a sponsor licence and they then essentially carry out a bit of a vetting process to make sure that the companies are suitable to hold a licence and various documents will have to be provided to show that it's a genuine organisation trading in the UK, and they also should have really robust HR processes in place to be able to comply with their ongoing sponsor duties, but that is a key piece of the puzzle before you can actually sponsor individuals and before they can apply for visas, that licence would have to be secured first. That generally can take about eight weeks to process, although there is now a fast-track process for an additional fee for that to be processed quickly but given that we are now into May it’s worth thinking in advance and we do have a number of clients who are now, as a backup option, securing sponsorship licences in case, come July, they find themselves having to rely upon that for particular projects.”

    If you would like to read more detail around that issue, then you can. Jo’s article on this is called ‘UK offshore wind: review workers’ immigration status now’ and it is available on the Outlaw website, along with all the latest developments.