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There has long been a fair bit of ambiguity around the immigration rules applicable to migrant crew on vessels operating in UK territorial waters (being the sea extending 12nm from the baseline), with limited Home Office guidance. The impact of that ambiguity has extended further post-Brexit, given the end of free movement for EEA nationals.
For those wholly working in UK territorial waters (as opposed to on the UK Continental Shelf) it is clear that they are caught by UK immigration control and so would require an appropriate work visa to do so unless any specific carve out has been provided for them by the Home Office. The question becomes more vexed when a vessel operates partly in UK territorial waters and partly in international waters – which is commonly the case. How much time in UK waters is too much and so triggers a work visa requirement? What if the exact timescales for a project are not pinned down at the outset?
Historically, provided an immigration officer is satisfied:
the vessel isn’t spending all or the majority of its time in UK territorial waters;
the crew will leave with the vessel within a reasonable timescale; and
the vessel won’t operate wholly or mainly in UK territorial waters thereafter;
crew tended to be permitted entry without requiring a UK work visa. Depending upon the particular facts, nationality of the individual and paperwork held by them, at most they may have to obtain entry clearance to join the vessel. Weighing up the above issues can sometimes be easier said than done though and getting it wrong carries obvious legal, operational and reputational risks.
One sector significantly impacted by the above ambiguity has been offshore windfarm construction. In response to specific challenges, in 2017 the Government introduced the Offshore Wind Workers Immigration Rules concession 2017. Since its introduction, and multiple extensions since, this has enabled migrant crew joining vessels engaged in the construction and maintenance of offshore wind projects in UK territorial waters to avoid the need for work visas, providing a period of certainty for those in the sector. However, that concession is due expire on 30 April 2023 and states “the concession will not be renewed beyond this date”.
A similar concession was introduced in 2022 for well boat vessels operated by certain approved companies in UK territorial waters (that concession to expires on 8 February 2024).
As noted above, the offshore wind worker concession is set to expire soon. It remains to be seen if it will be further extended (as it has on several previous occasions), notwithstanding previous confirmation it won’t. Alongside that we anticipate s43 of the Nationality and Borders Act 2022 (the 2022 Act) coming into force this spring. The provision was due to be implemented in November 2022 but was delayed until the Spring of this year following stakeholder feedback. We expect the offshore wind concession expiry to align with the introduction of that provision and so not to be further extended.
Currently the law states that a person arriving by ship or aircraft is deemed not to enter the UK unless and until they disembark. The 2022 Act closes that loophole, making the position more stark. When implemented, this will mean individuals arriving in UK waters for the purposes of working in those waters will be deemed to have entered the UK when they start working, despite not having disembarked at landmass. Those working in UK waters will need permission to do so, irrespective of duration – in the same way those working on the UK landmass do. It will be an offence to employ migrants in UK territorial waters where they do not have permission to work.
Separate regulations also come into force on 12 April, requiring individual crew or, where they have one, their sponsor, to provide notification of their date of arrival into the UK and date of departure.
Where this is a sponsor notification, they need only provide notification of the date an individual first arrives at the beginning of the job for which they are sponsored and the date they leave at the end of that job (avoiding, presumably, the need for notifications on each occasion they leave the UK when off-rotation and re-enter). Notification must be made on or within 10 working days of arrival/departure.
It is anticipated that sponsor notifications under the regulations may be made in writing to firstname.lastname@example.org. It remains to be seen if such reports must take a specific form and whether they will alternatively be submissible under the sponsorship management system.
As of yet, no detailed commentary or guidance has been issued by the Home Office on the implementation or application of these requirements. This will be a significant change for the maritime industry – removing ambiguity but in turn creating a more extreme immigration position than previously in place and impacting a wide range of maritime employers.
If they have not already done so, employers must now consider whether their operations will involve work in UK territorial waters and, if so, review their current crew – any non-British/Irish nationals will require a UK work visa to continue working in UK waters (unless otherwise entitled). They should consider how they plan to retain their crew and, in turn, the established technical experience and safety-critical knowledge for their operations. Alongside that, many will have to consider how they will recruit settled UK workers as employees, who will not require UK work visas, bearing in mind the extensive training often required for maritime roles.
Whilst the ideal solution would be a sector-specific scheme or building some flexibility for certain circumstances within the visitor rules, our understanding is the Government is not inclined to do so. Alternative immigration options employers can consider include UK employer sponsored work visas, such as the skilled worker visa, or frontier worker permits.
The maritime sector and the sponsorship system are not always a clean fit. Key challenges include:
There must be a UK entity licensed to sponsor and employ migrants in the UK (which will require appropriate UK-based personnel to take on key compliance roles on the licence);
That sponsor should have oversight and control over the individuals’ roles and outputs (an expected employment structure which is often overly simplistic for the sector);
Sponsored visas are only an option where the individual and role meet the requirements (including strict skill, salary and English language criteria – there are roles within the industry which don’t currently qualify for visas based upon skill alone);
These visas can only be sought from outside the UK if those seeking them are currently in the UK under the offshore wind worker concession or as a visitor, for example (switching is not always possible, creating challenges for crew already in the UK);
The key visa will likely be the skilled worker visa, which does not cater for multiple or lengthy unpaid periods while crew are off-rotation;
Sponsored visas bring added cost and processing timescales, making short-notice crew changes (e.g. for illness or injury) logistically and financially problematic;
Sponsorship attracts ongoing compliance duties and, therefore, robust HR processes and procedures. Employers should go into it with their eyes open.
It is also worth noting that the Migration Advisory Committee is currently conducting a review of the UK’s shortage occupation list (those roles deemed to be in short supply) (SOL) – that consultation closes on 26 May 2023 Shortage Occupation List: call for evidence 2023 - GOV.UK (www.gov.uk). If a role is added to the SOL, it can lower some of the costs of securing sponsored skilled worker visas. Whilst it is extremely rare, there is precedent for roles otherwise ineligible for skilled worker visas based on skill level to be added to the SOL and so become eligible for those visas. Failing that, there is precedent for roles to not be put on the SOL but classified as eligible for such visas (i.e. without the associated cost savings). Affected employers should consider participating in the consultation – roles will only be considered for inclusion on the SOL if evidence is received in respect of them.
Frontier worker permits will only be an option for certain EEA nationals living outside the UK but who began working in the UK by the end of December 2020. Whilst these are a more cost-effective, flexible, solution for employers it will increasingly be a fairly narrow pool of workers that can benefit from this route.
Identifying the most appropriate immigration solution for crew is very fact-specific. Our business immigration team has been working with affected employers, particularly in the offshore wind sector, to prepare for the above changes and ensure they are ready and able to secure the required work visas to ensure safe operational continuity when the above changes take effect.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at March 2023. Specific advice should be sought for specific cases. For more information see our terms & conditions.
27 March 2023