UK employers must obtain sponsorship licence (authorisation from the UK Home Office) to be able to employ non-EEA nationals. When the licence is granted there are a number of duties and obligations that the licence holders must comply with.
From our experience, sponsor employers are not always aware of all the immigration obligations/duties, which frequently leads to suspension or revocation of their licence. The Home Office can visit sponsor’s business premises to check if they comply with the immigration requirements. The visits may be announced or unannounced, which gives very little or no time to prepare. It is therefore crucial for sponsors to understand their obligations and ensure compliance at all times. The key sponsor duties are the following:
- Record keeping duties: e.g. Keep records of all employees passports and immigration permits, evidence of labour market test conducted for Tier 2 General. This duties are explained in Home Office guidance called Appendix D.
- Reporting duties: You must update the Home Office via your SMS online account of certain information or events within 10 working days, e.g. if sponsored migrant does not turn up for their first day of work, if migrant’s contract is terminated earlier than indicated on their COS, if you become aware that migrant changed to a different visa type, if migrants work location or salary or job duties change. There is also a duty to keep the Home Office updated on certain information and events relating to the sponsor’s business, e.g. if there is change of ownership, if business location changes, if there are mergers/acquisitions or other restructuring, if the business stops trading or is under administration or similar arrangments.
- Complying with the law: e.g. Only allow the migrant to undertake the specific role set out in their CoS, only assign a CoS to migrants who you believe will meet the requirements of the tier or category and are likely to comply with the conditions (rules) of leave, not assign a CoS where there is no genuine vacancy or role which meets the Tier 2 or 5 criteria, Not employ migrants where they don’t have the experience or permission to do the job in question, and stop employing any migrants who for any reason are no longer entitled to do the job.
- Genuine vacancy: Genuine vacancy is one that requires the jobholder to perform the specific duties and responsibilities for the job and meets all of the requirements of the tier and category and does not include dissimilar and/or lower-skilled duties.
- Co-operating with the Home Office: You must co-operate and allow Home Office staff full access to any premises or site under your control on demand. If any migrants you sponsor work at a third party’s premises, you must also ensure that they are aware of the possibility of visits and checks being conducted at their premises and ensure their full cooperation.
- Tier specific duties for Tier 2 General and Tier 2 Intra Company Transfer (ICT): e.g. You must not assign: a restricted CoS to a migrant for any job other than the one you described in your application for that restricted CoS, a restricted CoS where an unrestricted CoS is needed, an unrestricted CoS where a restricted CoS is needed. When you assign a CoS under Tier 2 (General) you guarantee one of the following: you carried out a genuine resident labour market test in accordance with the rules in force at the time, the job is exempt from the resident labour market test, the job appeared in a UK-wide shortage occupation listed in Appendix K of the Immigration Rules, on the date that you assigned the CoS. If the job is in Scotland, the job appeared in a shortage occupation listed for Scotland in Appendix K of the Immigration Rules, on the date that you assigned the CoS. Where it was a requirement to carry out a resident labour market test, the migrant will be paid in line with the rate you stated when you advertised the job and the migrant will be paid at or above the appropriate rate including specific permitted allowances for that job.
Kasia Janucik (Senior Associate, Carter Lemon Camerons Solicitors), 20 February 2019
Contact our lawyers in Carter Lemon Camerons Solicitors for advice on immigration matters. The specialist team at Carter Lemon Camerons Solicitors can assist you with all immigration and business-related matters. Our years of expertise in these areas mean that we can provide tailored solutions for you. For more details, please contact Kasia Janucik, Senior Associate and Aleksandra Kowalska, Registered European Lawyer in our immigration department at Carter Lemon Camerons or call us on +44(0) 20 7406 1053 (Kasia Janucik) or +44(0) 20 7406 1018 (Aleksandra Kowalska).