Sponsorship Licence for Employers
Employers wishing to recruit or retain the services of non-resident skilled workers must be licensed to do so by the Home Office.
Failure to comply with the raft of legislation and guidance can result in significant financial penalties.
To obtain the Tier 2 Sponsorship Licence, an employer must complete an on-line application process and submit documents to the Home Office to demonstrate that the company is an active trading entity.
Employers wishing to transfer existing employees from overseas offices must also show that the companies are linked by common ownership.
Holding a Sponsorship Licence enables an employer to issue Certificates of Sponsorship to suitably qualified or experienced workers for skilled jobs which are assessed as being equivalent to National Qualifications Framework Level 6 (NQF6). Jobs below this skill threshold only qualify for Tier 2 work permission in exceptional circumstances, for example, jobs in the creative sector must be at level NQF4 or above, or if the employee has previously held work permission for a post at NQF3 prior to 6 April 2010.
We strongly recommend that any company seeking to obtain a licence, or intends to issue a Certificate of Sponsorship to a prospective employee, takes legal advice before doing so.
We will guide you through the complex evidence requirements and assist you with sponsorship licence application and its operation.
Requirements:
As an employer wishing to apply for Sponsorship Licence, you will need to provide evidence that:
-
your company is active and trading;
-
you have adequate human resource systems to ensure your non-resident worker/employees have permission to work;
-
the company has not previously incurred civil penalties or criminal convictions for illegal employment; and -the company does not have a history of non-compliance.
A resident worker is a British or EEA national, a settled person or someone who holds appropriate work permission in another category, all others require permission to work.
In general, an employer must be satisfied that there is no suitable and available person settled in the UK or European Economic Area (EEA) who could otherwise fill the post. It may be necessary for the position to be advertised within the UK to be able to prove this.
The Home Office (UKVI) can audit an employer’s files at any time to ensure that the appropriate steps have been undertaken.
Similarly, an Entry Clearance or Immigration Officer can make additional checks when deciding whether to grant permission for an employee to enter or stay in the UK based on a Certificate of Sponsorship. A decision maker can refuse an application under Tier 2 where there are 'reasonable grounds to believe' that the job on offer;
-
is not genuine;
-
has been exaggerated to satisfy the Tier 2 skills threshold;
-
has been tailored to exclude resident workers; or
-
the applicant is not qualified to undertake the job
Once issued a certificate by a licence holding employer, an individual can then apply for leave to enter or remain in the UK (visa permission) as a Sponsored Skilled Worker.
Certificates of Sponsorship can be issued to:
-
Intra-company transferees (ICTs). A common type of application used by multi-national organisations which need to transfer employees from an overseas office, subsidiary or sister company to fill a skilled post in the UK which cannot be filled by a locally recruited employee. ICTs can be transferred for graduate training, skills transfer and short & long term purposes depending on the circumstances. Minimum salary thresholds and prior employment requirements can apply.
-
Shortage occupations. Certain posts identified by the Home Office in conjunction with the Migration Advisory Committee are deemed to be recognised shortage areas, i.e. where there are insufficient suitably qualified resident workers available to meet the UK’s requirements. The shortage occupation list changes periodically depending upon the prevailing circumstances in the UK economy.
-
Individuals that have either already been retained by the company whilst on other immigration permission or who have gone through a graduate recruitment process (for example, Tier 4 Migrants following the completion of a degree or Tier 1 Post Study Work migrants).
New hires where the Home Office will usually expect the UK employer to advertise the position in accordance with specified criteria as evidence that there has been a fair test of the resident labour force. In some limited circumstances it is possible to request that the advertising restrictions be waived. Jobs paying a salary of more than £159,600 do not require advertising.
New hires are subject to an annual quota; these are known as restricted certificates of sponsorship. All other types of certificate are known as unrestricted and are not subject to a quota.
Unrestricted certificates will be issued to:
-
individuals in a shortage occupation;
-
workers in receipt of a salary of £159,600 or more;
-
persons switching from the Tier 4 General category (after completing a degree or PhD); or
-
individuals switching from the Tier 1 Post Study Work category
Once the Certificate of Sponsorship has been issued, a Tier 2 sponsored skilled worker must then apply for a visa to enter the UK, or if already in the UK in a qualifying category, apply to the Home Office to change the basis of their stay in the UK.
Premium and Priority services are available for most applications.
The Home Office can visit the employer’s premises to check documentation procedures as part of the application process.
The employer must provide an Authorising Officer who will have ultimate responsibility for all sponsorship matters. This cannot be a solicitor or representative for legal reasons.
The Authorising Officer must then provide details of:
-
the primary contact for any queries regarding sponsorship;
-
a key contact; and
-
Level 1 Users, i.e. those authorised to issue Certificates of Sponsorship on the employer’s behalf
Both the key contact and Level 1 User roles can be fulfilled by a solicitor or representative.
Once the licence registration is approved, an employer will be supplied with details of how to issue Certificates of Sponsorship.
The shift of emphasis from the Home Office issuing work permits to employers issuing Certificates of Sponsorship places an executive burden on an employer, it means that they become gatekeepers of the UK’s immigration system with significant penalties if they abuse the system, or even just get it wrong.
Employers must keep very detailed records and can be audited by the Home Office at any stage.
Moreover, there are circumstances in which employers and managers are under an obligation to notify the Home Office of any breach of the immigration rules by an employee. Currently fines of up to £10,000 or more can be levied against the corporate body and individual complicit managers for any breach of the regulations.
If you wish to obtain advice or legal assistance in respect of your immigration matter, we offer an affordable and confidential consultation at a fixed fee with and experienced immigration lawyer where we can answer your questions and explain the processes that will apply. Your consultation fees will be set off against your instructions to the firm if you go on to instruct us.
For more information or to book an initial consultation, please contact us.