Sponsorship Licenses for Migrant Workers

This note of advice contains information about how a UK Company can employ skilled migrant workers who have been offered jobs in the UK.

Migrants may need to apply for work authorisation under Tier 2 of the United Kingdom’s points- based immigration system before undertaking any employment. Part of this process will require them to demonstrate that they:

1. have a job offer from a licensed sponsor and a valid certificate of sponsorship; and

2. pass a points-based assessment.

Overseas workers do not need to apply under the points-based system if:

  • they are a national of a country in the European Economic Area (EEA) or Switzerland;
  • they are a British Overseas Territories citizen, unless they are from one of the sovereign base areas in Cyprus;
  • they are a Commonwealth citizen with permission to enter or stay in the UK because at least one of their grandparents was born in the UK;
  • their partner has permission to stay in the UK under Tier 2 of the points-based system – they should apply as their dependant; or
  • they have no conditions or time limit attached to their stay.

There are two standard routes to obtain work authorisation under Tier 2.

The Tier 2 (General) visa category is for foreign nationals who have been offered a skilled job to fill a gap in the workforce that cannot be filled by a settled worker.

The Tier 2 (Intra-Company Transfer) visa category is for employees of multinational companies who are being transferred by their overseas employer to a UK branch of the organisation, either on a long-term basis or for frequent short visits. There are 3 sub- categories:

  • long-term staff – for established, skilled employees to be transferred to the UK branch of their organisation for more than 12 months to fill a post that cannot be filled by a new recruit from the resident workforce;
  • short-term staff – for established, skilled employees to be transferred to the UK branch of their organisation for 12 months or less to fill a post that cannot be filled by a new recruit from the resident workforce;
  • graduate trainee – this route allows the transfer of recent graduate employees to a UK branch of the same organisation, as part of a structured graduate training programme which clearly defines progression towards a managerial or specialist role.

All applicants under the Tier 2 (General) and Tier 2 (Intra-Company Transfer) categories need a sponsor. The sponsor must be a UK based organisation who wishes to employ migrant workers in the UK.

The UK Company will need to register as a licensed sponsor with the Home Office (see below) and accept certain responsibilities to help with immigration control. Once it is licensed, the Company will be able to issue migrant workers with Certificates of Sponsorship in order for the migrant workers to apply for the required entry clearance visa and work authorisation.

Applications for a sponsor licence

Applications for a sponsor licence are made through the Home Office’s website.

The relevant form MUST be submitted online by the Company – as a “representative”, IBB are able to assist the Company in the completion of the application but we are not able to submit the application on the Company’s behalf.

1. Key personnel:  The main roles

As a potential sponsor, the Company must allocate some responsibilities to members of its staff. There are four roles:

  • authorising officer;
  • level 1 user;
  • level 2 user; and
  • key contact.

Who can fill the roles?

These roles can all be filled by the same person, or by a combination of different people. The Company will be able to appoint additional level 1 and/or level 2 users later on if necessary. All of these people must be permanently based in the United Kingdom. The Authorising Officer and Level 1 user must be an employee of the business. As a representative, IBB are able to be named by the Company as a level 1 user meaning that we can take over much of the day-to- day handling of visa matters should you wish.

Who has access to the sponsorship management system (SMS)?

Once licensed, the Company can start using the SMS; this is an online tool that allows the Company to carry out its day-to-day duties and report any changes to the UK Border Agency. The SMS will allow the Company to assign Certificates of Sponsorship to migrants who wish to come to, or stay in the UK to work.

Only the level 1 user and level 2 user will have access to the SMS.

The authorising officer is responsible for the staff who use the SMS. For example, the authorising officer is responsible for deciding how many staff will have access to the system and what level of permission they will have. The level 1 user is responsible for setting up accounts for all additional SMS users.

The authorising officer must decide whether they will need to be the level 1 user or if not, which staff member to appoint to the role.

Checks on criminal records

The Home Office make checks on the authorising officer, key contact and level 1 user, and may make checks on the owner(s) or director(s) and any person involved in the day-to-day running of the Company. These include checks against their own records and the police national computer.

The Home Office may make these checks while they are considering the Company’s application for a sponsor licence, or at any time during the lifetime of the licence. They will repeat the checks if new individuals take up any of these roles during the lifetime of the licence.

If any of these people have any unspent criminal convictions or have been issued with a civil penalty by the Home Office in the last 12 months, the Home Office may refuse the application for a sponsor licence or withdraw the sponsor licence if it has already been granted.

2. How are applications considered?

When considering the Company’s licence application, the Home Office will ask themselves three main questions:

1. Is the Company a genuine organisation operating lawfully in the United Kingdom? The Company can prove this by sending in the supporting documentation set out below.

2. Is the Company trustworthy? The Home Office will look at the history and background of the Company, its key personnel and the people who control the organisation?

3. Is the Company capable of carrying out their duties as a sponsor? This is judged by looking at the Company’s processes and human resource practices, to ensure that it can carry out its duties.

The Home Office is likely to refer the licence application for extensive checks, which may include an on-site visit by their officers.

The Home Office’s visiting officers are trained and equipped to issue civil penalties or refer cases for prosecution if they find evidence of any wrongdoing or criminal activity.

3. Supporting evidence

All documents sent to the Home Office must be originals or certified copies. A certified copy is one that includes a signed statement by a solicitor or a notary (an accountant’s signature will not suffice); IBB would be able to certify copies as necessary.

IBB can provide further guidance on the documents that will need to be submitted at the relevant time once we have a clearer idea of the Company’s circumstances. However, if a sponsor wishes to employ migrants under the Tier 2 (Intra-Company Transfer) visa category the sponsor is required to demonstrate there is a link of common ownership and control between the UK entity and the overseas entity from which it wishes to transfer personnel.

The supporting documentation (and completed submission sheet – see below) must be received by the Home Office within 5 calendar days of submission of the online application form. For this reason, we strongly advise that the Company ensures that it has all its supporting documentation in order prior to submission of the online application form.

The Company will also need to answer specific questions posed by the Home Office in relation to the reasons for the Sponsor Licence application and to identify any migrants that the Company wish to sponsor.

The Home Office will send their decision letter and return the Company’s original documents by recorded delivery to the address given for its authorising officer on the online sponsor application; these documents will not be sent to any other address.

4. The rating system

When the Company applies for a licence to sponsor migrants under the points-based system the Home Office will assess its human resources systems and its compliance with immigration law whilst employing migrants.

The Home Office will use specific standards when assessing whether to give the Company an “A” rating or “B” rating or whether to refuse its licence. They assess:

1. whether the Company has the correct human resource (HR) systems to make sure that it can meet its sponsorship duties; and

2. whether the Company is complying with, or have previously complied with, the work permit arrangements and other immigration law.

3. Whether the Company can offer a genuine vacancy which meets the Tier 2 (General) criteria on skill level and appropriate rates of pay

HR System

Five individual areas of the Company’s HR system will be assessed.

Area 1: Monitoring immigration status and preventing illegal employment

The Company must:

  • keep – and make available to the Home Office, if they ask, – a photocopy or electronic copy of each migrant’s passport or UK immigration status document (and in time, their ID card), showing that they are allowed to work; and
  • not employ a migrant if the conditions on their permission to stay (or lack of permission to stay) mean that they are not allowed to do the job, and stop employing any migrant who stops being allowed to do the job for any reason.

The Company should therefore ensure it has a good record-keeping system for migrant’s documents and have procedures in place so that it does not mistakenly employ or continue to employ any migrant if the conditions on their permission to stay (or lack of) means that they are not allowed to work for the company.

Area 2: Maintaining migrant contact details

The Company must keep each sponsored migrant’s contact details (United Kingdom residential address, telephone number, and mobile telephone number) and make them available to the Home Office if they ask. These details must be updated as necessary; the Company should have a procedure in place to ensure these are updated, such as:

  • an electronic self-service system; or
  • conduct a regular audit; or
  • issue clear instructions to ensure its sponsored migrants are aware that they should notify the Company of any changes and how they should do this.

Area 3: Record-keeping

The Company must be ready to provide any documents for migrants that the Home Office thinks are relevant. To comply with its sponsorship duties, the Company should maintain effective record keeping.

Area 4: Migrant tracking and monitoring

The Company must report the following information or events to the Home Office, within any time limit specified:

  • if a sponsored migrant does not turn up for their first day of work. The report must be provided within 10 working days and must include any reason given by the migrant for their non-attendance or non-enrolment;
  • if a migrant is absent from work for more than 10 working days without the Company’s reasonably granted permission. The report must be provided within 10 working days of the 10th day of absence;
  • if the migrant’s contract of employment or registration is terminated (including where the migrant resigns or is dismissed). This report must be provided within 10 working days of the event in question, and should include the name and address of any new employer or institution that the migrant has joined, if the Company knows it;
  • if the Company stops sponsoring the migrant for any other reason (for example if the migrant moves into an immigration category that does not need a sponsor), the report must be provided within 10 working days;
  • if there are any significant changes in the migrant’s circumstances, for example a change of job or salary (but not job title or annual pay rise);
  • any suspicions the Company may have that a migrant is breaching the conditions of their permission to be in the United Kingdom. The report must be provided within 10 working days;
  • if there are any significant changes in the Company’s circumstances, for example if it stops trading or become insolvent, substantially changes the nature of its business, merges with another company, or is taken over. The report must be provided within 28 working days; and
  • details of any third party or intermediary, whether in the United Kingdom or abroad, that has assisted the Company in the recruitment of migrant employees.

To comply with its sponsorship duties, the Company should:

  • make sure that migrants are monitored sufficiently, for example with regular contact if the migrant works at client sites or from home; and
  • establish a suitable procedure to make sure that a designated person(s) is informed of any circumstances which should be reported to the Home Office, and then does so.

Area 5: Professional registrations and accreditations

The Company must make sure that a sponsored migrant who is coming to work for the Company is legally entitled to do the job in question and has the appropriate registration or professional accreditation where this is legally needed.

To comply with its sponsorship duties, the Company should:

  • make sure any professional accreditations are checked before the sponsored migrant starts work;
  • keep copies of professional accreditations;
  • monitor any expiry dates and complete subsequent checks to ensure that any accreditations have been renewed as appropriate; and
  • make sure that copies of these documents are readily available to the Home Office.

The Company must mostly achieve a rating of 1 (see below) in each of the five areas set out above in order to get the top rating for its HR systems overall.

Compliance with immigration law

The Home Office may decide that the Company is fully compliant if there is no historical record of any non-compliance and they find the Company to be fully compliant during a pre-licensing visit.

Genuine Vacancy

The Company must demonstrate there is a genuine need to sponsor a migrant worker – i.e. the Company is unable to identify a worker within the local work force who would be able to fill in the role. The vacancy will need to require the migrant worker to perform the specific duties and responsibilities for the job and meets all of the requirements of the Tier 2 category. The Company will be required to submit evidence of the recruitment process conducted in order to identify a local worker for the job prior.

The Company’s HR systems and compliance will be graded from 1 to 3 as follows:

1. the Company meets all of the criteria or is fully compliant.

2. the Company only meets some of the criteria or is partially compliant.

3. the Company does not meet any of the criteria or is non-compliant.

Following this assessment, the Home Office will usually give an “A” rating when the organisation poses little or no risk and the organisation has been awarded the top rating for both its HR systems and compliance.

A “B” rating will be given when the Home Office has awarded an organisation a rating of 2 for its HR systems or compliance, or both of these.

An application will probably be refused when the Home Office has given an organisation a rating of 3 for either its HR systems or compliance.

5. Submission of online form

After the online form has been submitted and the application fee has been paid, you will be taken to the ‘submission sheet’ page. The submission sheet must be printed and signed by the authorising officer. The completed submission sheet will then need to be sent to the Home Office at the same time as the Company’s supporting documentation.

Time Scales

The Home Office aim to process all sponsor licence applications in 4 to 6 weeks. We would anticipate that the entire process, including gathering together the necessary documentation and completing the online application form, will take in the region of 8 weeks.

Once the sponsor licence has been obtained, the process of acquiring the work authorisation visas for individuals can begin. The length of time that this can take will vary according to personal circumstances and which particular visa the individual is applying for. We can give an estimate of likely time scales for visa acquisition at the relevant time.

Fees

We wish to provide our clients with fee structures that are suitable for their needs. We will therefore collaborate with you to agree a pricing strategy which is most appropriate for your requirements. Our goal is to ensure that however the matter plays out, you feel that you have had good value for money and no surprises.

The current Home Office fees are as follows:

Sponsor licence application – £1,476 for medium or large businesses and £536 for small businesses. Small businesses are defined as businesses with an annual UK turnover of £10.2 million or less and 50 employees or fewer.

Assigning a certificate of sponsorship – £199 each.

Visa application – £437 – £1,828 depending on the visa category.

Most migrant workers and their dependant family members applying to enter or remain in the UK for a period of more than 6 months will be liable to pay a Healthcare Surcharge. Currently, the surcharge is set at £200 per year for each year of the validity of visa. From December 2018 this will increase to £400 per year, subject to Parliamentary approval.

The Company will have to pay an additional charge for each foreign worker it employs under either Tier 2 General or Tier 2 ICT visa categories. This is called the immigration skills charge.

For medium to large sponsors, the immigration skills charge will be £1,000 for the first 12 months and then £500 for each additional 6 months. For small businesses this will be £364 for the first 12 months and then £182 for each additional 6 months.

Contact our UK immigration law experts today

Contact our immigration solicitors today on immigrationteam@ibblaw.co.uk or 03456 381381 to see how we can help you with your immigration matter.

CONTACT OUR IMMIGRATION LAW EXPERTS TODAY


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