The UK offshore wind workers’ concession offers a practical solution for employment in the highly specialist area of offshore wind working.
When employing a migrant worker in the UK, or even on an offshore installation located close to the UK, the individual must usually have permission to undertake the job offered to them in the form of a work visa.
However, a concession is currently in place, outside of the UK’s Immigration Rules, to allow the employment of foreign workers who are joining vessels engaged in either the construction and maintenance of offshore wind projects in UK territorial waters.
This concession is, however, time-limited and leave to enter under the terms of the concession has been extended to 1 July 2022.
The Home Office has stated the concession will not be extended beyond this date and firms involved in the construction or maintenance of wind farms within territorial waters should look to regularise the position of their workers during this time.
The following guide for wind farm operators and employers of foreign nationals, including both EEA and non-EEA workers, examines the basis of the UK offshore wind workers concession, including the latest update on when this time-limited concession is due to expire.
What is the UK offshore wind workers concession?
In 2017, a temporary concession was granted by the Home Secretary to foreign workers essential to the construction and maintenance of wind farms within UK territorial waters (UKTW).
The UKTW is a 12 nautical mile zone from the mainland or an island that determines whether or not a worker is subject to UK immigration laws from a right to work perspective. The concession allows foreign national workers leave to enter the UK for the purpose of joining a vessel engaged in a UK offshore wind project, without the need for a visa.
Absent this concession, the rules relating to foreign nationals working on offshore vessels are complex, and can vary depending on the circumstances involved. To determine whether a migrant worker will require a UK work visa – typically, a sponsored visa under the points based system – employers would usually need to consider whether work is undertaken wholly or mainly within UKTW, or beyond on the UK Continental Shelf (UKCS). The employer would also need to consider whether any migrant worker forms part of any seafaring crew.
Determining whether sufficient time is being spent in UK territorial waters so as to require a UK work visa is rarely straight forward, and there is little Home Office guidance in this area. Even where a work visa is required, the individual and job role in question will not necessarily qualify, as such, narrowing the range of roles which may be filled by foreign nationals.
The UK offshore wind workers concession, for as long as it remains in place, removes the uncertainty over whether or not sponsored work visas are required or available for the relevant job roles. It also removes the associated costs, compliance and process aspects of sponsoring foreign nationals to work on an offshore installation located close to the UK.
Given that the demand for offshore wind staff is expected to triple by the end of this decade, from around 300,000 to 900,000, where wind farm operators are typically heavily reliant on foreign national talent, the UK offshore wind workers concession is providing the industry with a much-needed relaxation of the otherwise strict UK rules.
What are the terms of the temporary concession?
Under the terms of the temporary concession for wind workers, a migrant worker will not usually be required to produce a visa on arrival in the UK, but can instead apply for leave to enter at the border. However, for border security purposes they must still produce:
- A valid passport
- A seaman’s book compliant with ILO Convention 108 that has been issued by a country which has ratified that Convention or, alternatively, compliant with ILO Convention 185 and issued by a country that has ratified that Convention having previously ratified ILO 108, and
- A letter from their employer explaining that they’re to be employed in the construction or maintenance of a wind farm located within UK territorial waters.
If a wind worker is a ‘visa national’ and they do not hold an ILO compliant seaman’s book, they will not be able to utilise the concession to seek leave to enter at the border. Instead they must apply for entry clearance prior to entering the UK. EEA nationsl, for example, are not classed as visa nationals.
What type of visa will a visa national need?
For as long as the UK offshore wind workers concession remains current, visa nationals who do not have an ILO compliant seaman’s book will only need a ‘visitor in transit’ visa to enter the UK.
Any migrant wind worker who requires a visa should apply online from a country in which they have a right to reside. An application for a visa can be made on the UK government website. The applicant will need to select the option, when prompted, “to start work on a ship or aircraft”.
The application form will need to be completed in English. The applicant will also need to pay for the visa fee online and provide their biometric information.
Extension of temporary concession until July 2022
The UK offshore wind workers concession has already been extended several times by the UK government since its introduction in 2017. Most recently, the concession was set to expire on 1 July 2021, where a further extension seemed improbable due to the move to a new point based immigration system in recent months. However, on 2 July, the day after expiry of the concession, the Home Office issued a notice extending this for a further 12 months, in what is thought to be a last minute decision to deal with an acute shortage of workers.
The decision by the UK government to extend the concession follows concerns by the industry that offshore wind farm operators would struggle to maintain operational continuity due to a shortage of skilled and qualified staff. This means that, at least until 1 July 2022, wind farm operators and any migrant wind workers will continue to benefit from this relief.
Although the concession has faced heavy criticism in the past, particularly from unions, which argue that it takes away jobs from British seafarers whilst allowing wind farm operators to recruit cheap foreign labour, it has been welcomed by the industry. WindEurope — the organisation that advocates wind energy policies for Europe on behalf of more than 400 member companies — said it welcomed the recent extension on the basis that “It gives businesses breathing space to adjust to post-Brexit realities”. It was also said that it “ensures a reliable energy supply and an orderly expansion of wind energy in UK waters”.
What contingency plans must now be put in place?
Despite the fact that the offshore wind workers concession has already been extended several times in its relatively short existence, the Home Office continues to warn of its intention to end the scheme, putting employers on alert to review the immigration status of their foreign wind farm workers.
Further down the line, it may be that the UK government will extend the concession again or even introduce a more permanent solution for the wind energy industry but, as it currently stands, the UK offshore wind workers concession remains time-limited.
For all those whose business is involved in the construction or maintenance of wind farms within UK territorial waters, they must now use this latest extension to regularise the position of their migrant workers and to put in place contingency plans in order to ensure continued access to suitably skilled workers from 1 July 2022. This will involve factoring into project planning and contractual arrangements the potential costs, timescales, uncertainties and interruptions surrounding immigration permissions that may be required in due course.
If the concession does come to an end in the summer of 2022, and no replacement scheme is put in place, those workers who require leave to enter the UK will need the appropriate permission to do so under the UK’s Immigration Rules. This means that if you plan to employ or continue to employ foreign nationals after 1 July 2022, you will now need to take the following steps in contemplation of tougher visa rules coming into play:
Review the nationalities of all wind farm workers: without the concession, any non-EEA nationals will most likely need either an Intra-Company Transfer (ICT) visa or a Skilled Worker visa. These are a sponsored work visas where strict eligibility requirements must be met under the rules. Following the introduction of the UK’s new points based system post-Brexit, any EEA wind farm workers may also need to apply for a sponsored work visa, unless they were living or working in the UK prior to 31 December 2020 and have already been granted a Frontier Worker permit or immigration status under the EU Settlement Scheme.
Review the relevant job roles: an assessment should be undertaken to identify those roles that will qualify for a sponsored work visa. This will require consideration of the role skill level, salary package and even the English language capabilities of a particular applicant. The main visas for these roles will again be under the ICT or Skilled Worker routes. For any job roles that will not qualify for visas, contingency plans should now be made to ensure you have appropriately skilled workers available who do not require visas for ongoing projects.
Consider and, where necessary, apply for a sponsor licence: consideration should be given to securing a sponsor licence from the UK Home Office, if not already held, so that you’re ready to sponsor any foreign nationals if and when required from 1 July 2022. Once secured, individuals can be sponsored to work on wind farms, allowing them to then apply for the appropriate UK work visas with a valid certificate of sponsorship.
If you are considering applying for a sponsor licence and sponsoring migrant wind workers moving forward, take specialist advice as the application process can quickly become complex when compiling the required documents and evidence. It can also take some time to complete, so if existing wind farm workers qualify for the offshore wind worker concession, the licence will need to be in place to be able to actively sponsor those workers under an appropriate visa before expiration of the deadline.
Although many wind farm operators have already invested time, resources and money to ensure that they were fully prepared for the new UK points based immigration system — only to be informed the day after the concession was due to expire that a further period of reprieve would be granted — it’s still possible, if not probable, that the scheme will end next year leading to a shortage of suitably skilled workers for those without a contingency plan.
For wind farm operators who fail to make alternative arrangements to meet their staffing needs next year, they’re likely to pay the price if stricter immigration requirements are duly enforced. In contrast, for companies which adopt a proactive approach in advance of the latest concession deadline, operational continuity will be protected. With a sponsor licence in place for suitable roles, wind farm operators and employers will not be forced to bring the contracts of migrant wind workers to an end, and they will be able to safely navigate their way around any new immigration regime for the employment of foreign nationals in UK territorial waters.
DavidsonMorris are experienced advisers to businesses in the energy sector. We support with all aspects of corporate immigration, global mobility and Home Office applications, and advise on the use of the offshore wind worker concession. We can also guide you through the application for a sponsor licence in order to sponsor workers under the Skilled Worker or ICT visa routes. Contact us for expert advice.
Wind farm workers concession FAQs
What are the UK territorial waters?
UK territorial waters, or UKTW, are a 12 nautical mile zone that determine whether or not a wind worker is subject to UK immigration laws. The waters beyond the UKTW are known as the UK Continental Shelf (UKCS).
Do wind workers need a visa to work offshore in the UK?
Under a government concession, foreign national wind workers are currently exempt from needing a visa to work offshore in the UK. However, visa nationals who do not hold an ILO compliant seaman’s book will need a ‘visitor in transit’ visa.
Last updated: 6 July 2021