Tarik Elhadidi

The UK government has set an ambitious target of a four-fold increase in offshore renewable energy by 2030, a key pillar in the country’s 2050 net-zero target. Against this backdrop, the significance of the role that offshore wind farms play in the UK’s economy and future energy security cannot be underestimated.

Recognising the importance of wind farms in the region, in 2017 the then Home Secretary, Amber Rudd, introduced a concession to the UK’s Immigration Rules, permitting the employment of non-UK nationals joining vessels engaged in the construction and maintenance of offshore wind projects in UK territorial waters. This is defined as being within 12 nautical miles of the baseline

This concession has since been extended by the Home Office on several occasions, but in June 2022 it was confirmed that the latest extension would be the last, with no plans to extend it beyond the upcoming deadline of 31 October 2022.

As the end of the concession is now fast approaching, employers within this sector must consider how they intend to retain foreign workers currently in the UK under the terms of this concession.

Additionally, the government also confirmed that anyone coming to work in UK waters, including on wind farms, after 31 October 2022 will need the appropriate immigration permission to do so under the Immigration Rules. This means that those employers who are currently relying on the concession need to take the necessary steps to regularise the position of those workers who they intend to employ beyond 31 October, or consider how they will recruit UK nationals as employees.

The renewable energy sector is concerned about the imminent end to the concession, given the projected growth in offshore wind, which is forecast to employ 97,465 people by 2030, according to the Offshore Wind Skills Intelligence Report. The key benefit of the concession is that it has fostered and encouraged growth within this area by enabling those working on offshore wind projects, whether inside or outside UK territorial waters, to do so without necessarily needing any other type of immigration permission. So, with the end of the concession now in sight, what are the alternatives?

For EEA nationals, applying for a Frontier Worker permit is one possible solution. To be eligible for this permit, the applicant must be living outside the UK (i.e., they must not be primarily a resident in the UK, and they must have started working in the UK on or before 31 December 2020). While this will not be available for newer recruits, those who have been working on long-standing projects should certainly look to use this route. A key benefit to this scheme is the fact no government fees (visa application fee, immigration health surcharge and immigration skills charge) apply. Applications are online and biometric submission can also be undertaken remotely in most circumstances.

For non-EEA nationals or those who are ineligible to apply for Frontier Worker status, the alternative (and unfortunately more costly) work authorisation route is likely to be visa sponsorship as a Skilled Worker. To sponsor a worker under this category, the sponsoring company will first require a UK Sponsor Licence.

To become a licensed sponsor, a UK entity is required to demonstrate a genuine trading presence in the UK, appoint key personnel in the UK that can be responsible for the maintenance of the sponsor licence, and have robust HR and compliance processes in place to maintain the licence. The first step in the process is identifying an entity in the UK capable of meeting these requirements. For those within the offshore wind industry, the nature of work means it is not always apparent how these critical personnel roles, that must be assigned as part of the sponsor licence application, will be fulfilled, and therefore time should be taken to carefully consider these factors to prevent future delays with the sponsor licence application process.

Once the licence is in place, it’s important to note that those who have been granted leave under the terms of the concession will not be permitted to switch to the Skilled Worker visa from within the UK, according to the Home Office. As part of their visa application process, the employee will be issued a Certificate of Sponsorship, which is a virtual document that sets out the details of the individual’s proposed role in the UK. In addition to being assigned a Certificate of Sponsorship, to be eligible for the Skilled Worker visa the applicant must also have been offered a role that is on the Home Office’s list of eligible occupations; be paid the minimum salary (£25,600 per annum or the occupation code minimum, whichever is higher); and be able to demonstrate the required level of English.

Home Office processing of a Skilled Worker visa ordinarily takes around 15 business days, subject to government delays, although there are options to expedite and reduce the processing time to around 5-7 working days. Once the Skilled Worker visa is approved, the overseas employee can then relocate to the UK and begin work.

With the end of the concession in sight and the inevitable growth in demand for certain skills within the offshore wind industry as the net-zero transition accelerates, there is much for employers to consider to ensure their workers secure the appropriate permission to commence or continue working lawfully, beyond 31 October 2022.

Tarik Elhadidi is a senior associate at Fragomen