Tier 2 Sponsorship Licence/ UK Sponsor Licence Lawyers in London

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Skilled Workers route and sponsorship licence application under new immigration rules

The introduction of new immigration rules revealed the replacement of the Tier 2 (General) visa by the new Skilled Worker route. It will be relevant for EU nationals arriving to the UK from 1 January 2021 or non-EU nationals applying for a visa on or after 1st December 2020. They will have to be sponsored by the employer in the UK. EU nationals granted a status under the EU settlement scheme, and Irish nationals will not need to be sponsored to work in the UK.

Any employing organisation should apply for a sponsorship licence first if they want to hire workers from abroad.

The sponsorship licence can cover all or any of the following:

Skilled workers route;

Intra-company transfer (ICT);

Specific Tier 5 licences for temporary roles in the sports, charities and religious fields.

Sponsor licence eligibility criteria

  1. The organisation is genuine and operating and/or trading lawfully in the UK, for example, registered with Companies House.
  2. The organisation is based in the UK.
  3. A genuine vacancy is offered which meets the skilled worker criteria. The Home Office may request additional information to verify the specific nature of the role and its duties and to confirm that the role actually exists. 
  4. The organisation will comply with the sponsor duties and responsibilities, and evidence that compliance. The Home Office reserves the right to investigate sponsor compliance by conducting a site inspection before (as well as after) the licence is granted.
  5. The organisation and its owners, directors and appointed key personnel do not have any unspent criminal convictions.
  6. It does not represent a threat to immigration control with no evidence of any previous non-compliance by the organisation.

Sponsor licence duties

Compliance with the duties ensures comprehensive and up to date records are maintained by sponsors that must be made available to the Home Office for inspection at any time. Any changes in circumstances should be notified to the Home Office.

Record-keeping

Sponsors must keep records relating to their sponsored workers and their right to work in the UK documentation, NI numbers (where applicable) as well as the history and up-to-date contact details, passport, immigration status documents, biometric residence permit.

Monitoring & reporting

The employer must have in place systems and processes to track and monitor sponsored employees, reporting within ten working days if the sponsored individual:

  • Fails to start work when expected
  • Has ten days of consecutive unauthorised absence
  • Has their contract terminated earlier than expected e.g. resignation
  • Moves into another immigration category, for example, from the skilled worker visa to indefinite leave to remain (regardless that the Home Office should have a record of this fact)

The sponsor also has to notify the Home Office of any reasonable concerns or evidence that a sponsored worker is in breach of the conditions of their stay in the UK.

Absence monitoring

The sponsor has to ensure all sponsored employee absences are authorised and recorded, including sickness, annual leave, study leave and overseas travel. The employer should have in place and follow, an effective sickness absence procedure.

Suitable skill level for sponsored workers

To qualify for the skilled worker (and ICT) visa, the role will, in most cases, need to be at Regulated Qualifications Framework (RQF) level 3 (A level equivalent) or above.

The skill level is lower under the new system; a move intended to ease the transition from the end of EU free movement by allowing a greater number of roles to qualify for the route.

Minimum salary thresholds for skilled workers

One of the key sponsorship requirements is that the salary you pay sponsored workers must be above a certain minimum threshold. Different types of workers will have different minimum salary levels.

In effect, the applicable threshold will depend on the job role and whether the worker is classed as a new entrant or an experienced worker.

The employer has to pay whichever is the higher of the ‘going rate’ or the relevant general minimum salary threshold.

New entrant transition into experienced worker

The guidance states that a sponsored worker can only be considered a ‘new entrant’ for a maximum of three years, regardless of their circumstances. Sponsors should plan for any future increase in the applicable minimum salary should the worker ‘transition’ during the course of their employment.

Calculating minimum salary (pro-rata hours)

The minimum thresholds are set on the basis of a 39-hour week. If the employee works more hours, the minimum salary will be counted on the basis of 39 hour week, and this figure must meet the relevant salary threshold.

Sponsor licence management & compliance

Appointing key personnel. Sponsor licence holders are required to nominate individuals, the key personnel, who will assume specific responsibilities to manage the licence in compliance with Home Office guidance. These roles are:

Authorising officer (AO) should be an individual in a senior position in the organisation with responsibility for recruitment and/or HR. They should preferably have oversight of HR processes, systems and people involved in the management and operation of the licence.

Key contact is the person the Home Office will contact in relation to the organisation’s application and the licence on an ongoing basis. The key contact’s details are to be provided when the licence application is made.

Level 1 user will use the Sponsor Management System (SMS) to administer the licence on a day to day basis. Multiple level 1 users can be appointed at any one time, although it is good practice not to appoint a limited number of people. 

Level 2 user is appointed to carry out administrative tasks on the licence, albeit with fewer permissions than level 2 users.

The key personnel must be nominated within the licence application form. All three roles can be covered by the same person. It is especially important for small companies. At least one employee should be a “settled worker” i.e. not subject to immigration control with no restriction on their stay in the UK.

The employer has to ensure those appointed as key personnel meet the suitability requirements, as prescribed under the sponsor guidance. Each of the key personnel must:

  • Be permanently based in the UK throughout the duration of their role.
  • Be a paid staff member or engaged by the UK organisation as an officeholder, with some exemptions which, for example, allow legal representatives to be appointed to certain key personnel roles.
  • Not have an unspent criminal conviction for a relevant immigration offence.

SMS users cannot sponsor close relatives such as their spouse, partner, brother, sister, father, mother, etc.

Sponsored employers cannot act as Level 1 users with the ability to assign Certificates of Sponsorship to sponsored employees.

Each individual key personnel will be subject to criminal background checks to verify if they have been associated with immigration offending or with sponsor licence enforcement.

Certificates of Sponsorship

The Certificate of Sponsorship (CoS) is a reference number issued by a sponsoring employer via the SMS to their prospective sponsored worker. The CoS is used to verify to the Home Office that the requirements under the visa route have all been met. It is given to each sponsored employer for visa application.

From 1st December 2020, restricted and unrestricted CoSs are changed into defined and undefined Certificates of Sponsorship:

If the prospective employee is outside the UK and will be applying for entry clearance, they will need to be assigned a defined CoS. The sponsor will need to apply for the defined CoS via the SMS by providing details of the specific job and salary.

If the individual is applying for a skilled worker visa to remain in the UK, the sponsor will assign them an undefined CoS out of their annual allocation. 

Failure to assign the correct type of CoS is in breach of the guidelines and can result in penalties. For example, sponsors are not permitted to assign an undefined CoS where a defined CoS is required, or a defined CoS to a worker for any job other than the one detailed in the CoS application. The CoS is valid for 3 months, after which the visa may be rejected.

When applying for Certificates of Sponsorship the UK organisation will need to state how many undefined CoS it will require until the 5th of April (the end of the CoS allocation year). The CoS will be issued at the same time, when the licence is granted, they can be assigned to the prospective employees straight away to make their Home Office visa application.

Sponsor licence supporting documents

A minimum of four mandatory documents must be submitted to demonstrate that the organisation meets the eligibility requirements, i.e. it is genuine and operating lawfully in the UK.

The guidance comprises a list of acceptable documents which must accompany the application. They very depending on the type of organisation and how long it has been operating in the UK. It is definitely better to provide more documents in support of the application.

In addition to this the organisation will also need to provide specific information relating to the role(s) to be sponsored. This includes:

  • The job title and Standard Occupational Classification (SOC) Code for the role.
  • A job description detailing the duties of the role.
  • Details of the skills, experience and qualifications required to perform the role.
  • The guaranteed salary if the job were vacant at the date of the sponsor licence application.
  • Details of where the role sits on the organisational hierarchy chart. The organisation must indicate which jobs are currently vacant and for which it intends to assign a Certificate of Sponsorship.

The documents have to be provided to the Home Office within five days of the application being submitted on the SMS, hence, employers are advised to prepare their supporting documentation pack in advance of completing the form to be ready before the deadline.

The online sponsor licence application form should only be submitted once the AO is satisfied that the UK organisation has the necessary systems in place to comply with its sponsor duties and obligations and all of the supporting documents are in order and ready to be submitted.

It can only be submitted by the Authorising Officer (AO). Legal representatives may assist the AO in completing the draft online application form but must not submit it.

The AO should save a copy of the submission sheet that is generated once the application is submitted as it is not possible to obtain a further copy of it once it has been closed.

A copy of the completed and submitted online sponsor licence application should be retained for the UK organisation’s sponsor records.

Processing time of the application for a sponsor licence?

If you are applying for your first licence, it will take for up to 8 weeks for the application to be processed and generally not earlier than 4-6 weeks.

Sponsorship licence application fees

Type of licence

Fee for small or charitable sponsors

Fee for medium or large sponsors

Worker

£536

£1,476

Temporary Worker

£536

£536

Worker and Temporary Worker

£536

£ 1,476

Add a Worker licence to an existing Temporary Worker licence

No fee

£940

Add a Temporary Worker licence to an existing Worker licence

No fee

No fee

Additional expenses include: 

  • Assigning the CoS – £199 per certificate
  • Immigration Skills Charge – £1000 per year, per worker, or a reduced rate of £364 for smaller companies & charities
  • Fees for the sponsored worker’s visa application

The Home Office will email the organisation with their decision. If successful, the employer will be added to the UK’s register of licensed sponsors.

Once granted, a sponsor licence is valid for a period of four years. The organisation is required to reapply in advance of their old licence expiring, as licences do not automatically renew, to avoid any issues with their sponsored workers’ visa validity.

The Home Office will have four years of information on the SMS and documentation to assess, to verify compliance with the licence duties.

If the sponsor licence application is refused or rejected

First, consider what is the reason for refusal. It can be if incomplete or incorrect supporting documentation was provided. If the application has been refused, you may be subject to a cooling-off period of at least six months before you can apply again.

Refusal means that any of the sponsorship licence requirements were not met.