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Business Immigration Solicitors

Are you failing to comply with your Tier 2 sponsorship duties? (19 February 2019)

Date: 19/02/2019
Duncan Lewis, Business Immigration Solicitors, Are you failing to comply with your Tier 2 sponsorship duties?

As a sponsor you must comply with certain duties under the Immigration Rules and have the required systems and procedures in place to retain your Tier 2 Sponsorship Licence.

The main purpose of sponsorship duties are to:

  • Monitor and ensure compliance with the Immigration Rules

  • Stop the abuse of the immigration system and assessment procedures

  • Identify and detect concerning behaviour at an early stage

  • Examine and action weaknesses in the process

Your Tier 2 sponsorship duties start the day the sponsorship licence is granted and comes to an end when the licence is surrendered or revoked. The Home Office are visiting sponsors more frequently to check for full compliance with the sponsorship duties before and/or after making a decision on the sponsorship licence application.

If you fail to comply with the sponsorship duties, as outlined in the Immigration Rules, your sponsorship licence may be suspended or downgraded. This would have a detrimental effect on your business and reputation which may lead to a loss of staff since you would be unable to sponsor workers/talent. In some circumstances, the licence may be revoked causing the Migrant’s leave to be curtailed and they may be forced to leave the UK.

Sponsorship Duties

In order to ensure compliance with your sponsorship duties within your organisation you should audit your procedures regularly. If you would like assistance with your procedures Business Immigration Director and Solicitor Ayan Yalchin, who is a specialist in sponsorship licences, sponsorship duties and compliance, can assist with compliance checks and mock audits.

  1. Record keeping duties

  2. You must keep and make available upon request, either an electronic file or hard copy of the following:

    • Evidence of migrants identity by keeping a copy of the relevant page or pages, including their passport or UK immigration status documentation and biometric residence permit (if available) – this should show their right to work and their period of leave to remain in the UK.

    • Contact details and up to date address, telephone number of sponsored workers.

    You must provide the Home Office, if requested, any documents relating to your migrants or the running/operation of your organisation that is considered relevant to your sponsorship duties in terms of compliance. As an example, the Home office might ask for the particulars of your recruitment process so they can ensure the resident labour market test is compliant. If you fail to provide the relevant documents within a given deadline, they will take action against you. If a migrant is under-18 you would be required to have a letter of consent from their parent(s) / guardian. This letter of consent should explain the travel, reception and care arrangements. Where the migrant has a biometric residence permit (document containing immigration status, fingerprints, and facial image) you must keep a copy.

  3. Reporting duties

  4. You have a duty to report certain information and events to the Home Office via the Sponsorship Management System (SMS) within a set deadline. Information you report on a migrant not turning up to work or demonstrating non- compliance will be used to take enforcement action against them by the Home Office.

    You must report the following within 10 working days:

    • If a migrant fails to turn up for their first day to work – you must provide reasons for failing to turn up, for example a missed flight or illness. You must also include last known address and contact details including telephone number(s) and email address.

    • If there are any changes in the migrant’s circumstances, such as their contract being terminated earlier than stipulated on their certificate of sponsorship (CoS), you must report the same. You must also report the name and address of any new employer if known. You must also include the last known address and contact details including telephone number(s) and email address.

    • You must report any changes such as promotions, changes in job titles, salary changes (from the level shown on the CoS, other than increments or bonuses, or due to maternity/paternity/adoption or long term sick leave over 1 month), core duties, location (other than those which need a change of employment application), migrant switching into an immigration route that does not need a sponsor, any absences from work without pay for 4 weeks and where this absence is not covered by the given exceptions such as unpaid leave, and reductions in salary. You must also include last known address and contact details including telephone number(s) and email address.

    • If you are involved in a merger or demerger, you must report if a migrant’s employment is affected by TUPE or similar protection.

    • You must report any information which would breach the conditions of the migrant’s leave.

    • You must report if the migrant is absent for more than 10 consecutive days without permission. This must be reported to the Home office within 10 working days from the 10th day of absence.

    • You must report if the size of your business changes from small to large or vice versa, as well as any significant changes in your own circumstances, or if you sell all or part of your business, stop trading, change the nature of your business, are involved in a merger or are taken over, or go into administration. You must report any of these within 20 days.

  5. Complying with the law

  6. You are required to ensure compliance with the immigration law and as such:

    • You must employ appropriately qualified, registered or experienced migrants to undertake the necessary job. If working as a doctor they must have the necessary registration that allows them to practice in the UK.

    • You must not employ migrants where they do not have the experience or permission to undertake the job, and immediately stop employing migrants who are no longer entitled to undertake the job.

    • You must keep a copy of any registration document, certificate or reference that confirms the requirements for the job are met. The Home Office may request further information/documents from you regarding this requirement.

    • You must only assign a CoS to those that meet the requirements and will comply with the conditions of leave.

    • You must only allow the migrant to undertake the specific role set out in their CoS. You must be satisfied they are able to fill said role.

    • You must not assign a CoS where there is no genuine vacancy or position which meets the relevant criteria. If you assign a CoS and the Home Office do not believe that it is for a genuine position, they may suspend your licence.

    • You must comply with UK employment law requirements, such as paid holiday leave and minimum wage requirements.

    • If you are in the catering or food business, you must be registered with or approved by the relevant authority.

    • You must hold the required permission or consent to run your type of business at your trading address (where there is a local authority requirement).

    • You must, where relevant, only assign a CoS for a role which is at or above the minimum skill level as set out in the guidance. In addition, a migrant must be paid at or above the stipulated rate.

    • You must disclose if you assign a CoS to a family member of anyone within the business, if it is classed as a small or medium sized organisation. If you are a large business and are aware that you are assigning a CoS to a family member of anyone within the organisation – this should be done via the ‘notes’ field on the CoS.

    • Where relevant, you must only employ for positions if they are listed on the shortage occupation list.

  7. Genuine vacancy

  8. You must demonstrate that there is a genuine vacancy where the migrant undertakes the specific responsibilities and duties for the job and satisfies all of the requirements of the tier and category, which must not include dissimilar and/or lower skilled duties.

    Where a CoS is assigned, the vacancy must be for the period stipulated on the CoS. Where applicable for the role, you must only employ a migrant who has passed the necessary DBS checks.

  9. Co–operating with the Home Office

  10. You must co-operate with the Home Office at all times and, if necessary, allow Home Office officials full access to any premises and documents/systems. If the licence has been downgraded, an action plan for B – rated sponsors may set out extra duties which you must follow.

  11. Your duties specific to Tier 2 General and Intra Company Transfers (ICTs)

  12. These duties stipulate that you must:

    • Ensure, where required, to apply for a ‘restricted certificate of sponsorship’ (CoS).

    • Not assign a ‘restricted CoS’ for any job offer other than the one stipulated on the application for a restricted CoS.

    • Not assign a ‘restricted CoS’ where an unrestricted CoS is needed.

    • Not assign an ‘unrestricted CoS’ where a restricted CoS is needed.

    When you assign a CoS (Tier 2 General) you guarantee:

    • You exercised a genuine resident labour market test complying with the rules; or

    • The job is exempt from the resident labour market test; or

    • The job appeared on the shortage occupation list.

    You must also guarantee where a resident labour market test is carried out that you will pay in line with the amount advertised. The job must be a genuine vacancy and you will pay the migrant at or above the appropriate rate including specific permitted allowances for that job.

    It is important to ensure that you are not failing to comply with your Tier 2 sponsorship duties, as failure to comply puts you at risk of having your sponsorship licence suspended, downgraded or revoked outright.

    For specialist advice regarding obtaining a sponsorship licence, compliance and advice on your sponsorship duties, please contact author, Immigration Director Ayan Yalchin, on ayany@duncanlewis.com or 020 7275 2011. He has more than 18 years’ post-qualification experience acting on behalf of individuals in a variety of immigration related proceedings.

    Ayan Yalchin heads our business immigration team and continues to be recommended by Legal 500 2019 for his immigration work in London. Ayan specialises in Tier 1, Tier 2, and sponsorship licences for companies including renewals and advising on processes and compliance, Tier 4 (students) and Tier 5 (temporary workers), as well as all types of entry clearance, FLR, settlement, EEA and ECAA applications.

    Ayan has a strong practice representing high net worth individuals and has extensive experience providing bespoke Immigration solutions to a wide range of industries including fashion, food and beverage, precious stones, finance, insurance, media, IT, energy and healthcare.

    Duncan Lewis Business Immigration Solicitors

    Our Immigration department is ranked as a top-tier practice in Immigration: human rights, appeals and overstay matters in The Legal 500 2019. As leading immigration specialists we advise on business immigration, right to work in the UK, Tier 2 visa applications, student/graduate visas, spousal visas and visa overstays.

    Our broad practice provides a full service to SME business clients across the UK in relation to the Points Based System (PBS); Sponsorship license applications and immigration strategy/compliance advice. Our specialist solicitors are also able to advise businesses and individuals on any changes to UK immigration law during Brexit negotiations and after 29 March 2019, post-Brexit.

    For expert legal advice call Duncan Lewis immigration solicitors on 033 3772 0409.

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