Offshore wind worker notification requirements now operative

As we reported on Friday last week, the Home Office has confirmed the offshore wind workers concession will end on Sunday, 30 April, with no further extension being granted. It means workers will need to leave the UK by this date or, if they want to work in the UK, they will need to apply for entry clearance before they start work. 

They made that announcement on 21 March and at the same time they also announced that from 12 April 2023 businesses would need to notify the Home Office of arrival and leaving dates for offshore workers. The details are set out in regulations which have just been published, but in summary they say:

- Offshore workers, or their sponsor if they have one, need to notify the Home Office when they arrive in UK waters for the purpose of undertaking work in those waters, and notify when they leave.

- The sponsor of an offshore worker will be responsible for fulfilling the notification requirement; and

- The notification must be made no earlier than the day of arrival/leaving and no later than 10 working days after arrival/leaving. 

So, that’s the new notification requirement but how tricky will that be comply with and who, exactly, is caught by it? They are questions I put to immigration specialist Maria Gravelle. 

Maria Gravelle: “It applies to seafarers and offshore workers who enter via vessels, so it won't apply to those who are entering the UK via an airport or another land port and then subsequently joining a vessel and heading out to sea from a UK port. So, it only applies to those who are actually entering the UK from open waters. The requirement is quite simply to email the Home Office when that individual enters and leaves the UK. It sounds straightforward enough but, practically, it is going to be quite a burden for some employers, particularly those who have a number of employees entering on vessels every day, and there is going to need to be some communication between vessels, and the staff who are required to make these reports, to ensure that that reporting requirement is executed in a compliant manner.”

Joe Glavina: “Of course, the sea is the sea, and it doesn’t have any obvious boundary lines, so how do know the point at which your vessel becomes subject to the rules and who is responsible for spotting that?” 

Maria Gravelle: “Well, it's certainly going to be a learning curve, I think, for many vessels and the employers who are, perhaps, sitting on UK land who are making these requests. I think identifying who is going to be responsible for this reporting obligation would be the first step. Is it going to be the staff who are actually working on the vessel and who have first-hand sight of which point the vessel is entering the UK and which point it is leaving? Or is it going to be, for example, the HR team who may be based in the UK on land and who would then rely on communication from the vessel to know exactly when that report needs to be made? So, depending on which approach you take, I think communication is going to be key, and understanding that this is a compliance obligation, particularly if you are a sponsor, it is something that you have to do, and nominating somebody who understands the importance of this. Beyond that, it will also be quite important to make sure that that is maintained. So, while this requirement is a new thing, it is it's certainly not going to go away anytime soon, and making sure that everyone is aware of that. So, if you're entering the UK on a regular basis, if you're out at sea and you enter the UK to do a piece of work, whether you're sponsored or whether you're not sponsored, making sure that, for the foreseeable future, that requirement is going to be complied with. The difficulty is that in this sector there are last minute changes to scheduled routes. There are requirements, projects, that come up in the UK at relatively short notice, it may not always be clear at which point the vessel has entered UK waters and at which point has left due to scheduling changes or other changes to the project. So, whoever has oversight of those aspects of the tour, should be aware of that requirement as well and making sure that they are communicating with whoever is responsible for doing the reporting.”

Joe Glavina: “Given those challenges and the fact this notification requirement is new and has come in with little notice, how rigorously do you think these laws will be enforced by the Home Office do you think? Sponsors might expect some leeway.”
Maria Gravelle: “It’s a very good point. It's certainly a requirement that has been built into the Home Office online guidance for sponsors, so it now features with the other compliance duties that sponsors have to adhere to. So, it has the same importance as complying with your reporting obligations in terms of notifying when a sponsored worker has left their employment. All of these things, this is in the same guidance as all of that. So, it's very important, certainly, if you are a UKVI sponsor licence holder, to always comply with all of your compliance obligations and this should be given the same weight as any other obligation. In terms of the Home Office’s approach, it’s difficult to say what approach they would take if there would be, perhaps, a period at the beginning where they might give some leeway. But the actual fact of having to do the reporting is just an email, it doesn't involve accessing the sponsor management system, it doesn't require a level one user, so it is practically quite an easy thing to physically make the report. So, I wonder if, because of that, there may be relatively few excuses that they would accept as to why you weren’t able to do that. So, certainly if there is a report that is ever missed it's important to justify that and then make the report as soon as you can, as soon as you realise the error.”

Last week Maria talked to this programme about the implications of fast-approaching end to the Offshore Wind Workers Concession – it’s in a few days’ time on 30 April. If you would like to catch up on that the programme is available for viewing now on the Out-Law website. It’s called ‘UK’s offshore wind workers concession to end on 30 April 2023’ and we have put a link to it in the transcript of this programme.

LINKS
- Link to guidance on notification requirements
- Link to HRNews programme: ‘UK’s offshore wind workers concession to end on 30 April 2023’
- Link to Offshore Wind Workers Concession