UK Visa Sponsorship
Firstly, we must clarify the key term. What is a sponsor licence?
A sponsor licence allows companies based in the UK to employ skilled workers from overseas or within the UK. Once the licence has been approved, it is valid for a period of four years. In the end, sponsor licence holders have the option for the renewal process.
What Is a Certificate of Sponsorship (CoS)?
The Certificate of Sponsorship (CoS) is of utmost importance when recruiting skilled workers under UK-sponsored work visa routes.
Before an employer can sponsor a migrant skilled worker, they must create a Certificate of Sponsorship (CoS).
Fundamentally, the CoS is a self-certifying document that a sponsor licence holder issues to a sponsored work visa applicant. The CoS is an electronic record containing a unique reference number; it is not a physical document.
This document confirms that the conditions of the visa have been met. The skilled foreign worker in question then submits the document in their sponsorship visa application.
As hinted, this represents a mandatory prerequisite for a variety of visa applications.
When assigning the CoS, strict conditions and timing follow, and employers must be aware of and comply with them. There are also two different classes of CoS, and employers must ensure that they use the correct type of CoS in each instance.
Employers can sponsor a worker if their job has a suitable pay rate and skill level or meets the other criteria needed for their visa.
Some examples that fit in the “job suitability” category include:
- Skilled workers
- Health or care workers
- Workers on any type of ‘Global Business Mobility’ visa
- Scale-up workers
- Workers on a government-authorised exchange
- Seasonal workers
- Workers on an International Sportsperson visa
- Workers on an international agreement
- Creative workers
- Charity workers
- Ministers of religion or religious workers
This test should be approached as a business case. This is to see the reasons why you require a sponsor licence and a foreign national for the vacancy in the first place.
Presenting convincing reasons as to why you need a licence and a particular role means that you have “passed” the genuineness test.
The test can be carried out at any time during the life of your sponsor licence.
The test looks at the specific role(s) for which you are recruiting foreign workers and how these roles fit within your organisation as a whole.
The main idea is that you demonstrate that the role is a genuine vacancy.
The Home Office policy guidance states that special attention should be paid to ‘high-risk’ sectors. Although these sectors are not defined, any application involving careers or the hospitality industry should expect greater scrutiny.
Additionally, the applicant’s previous immigration history will also be taken into account when considering the ‘genuineness’ of the application.
A sponsor licence holder is required to comply with clearly stated rules regarding the employment of migrant workers. Licence holders are deemed compliant when they follow the rules and regulations clearly set out in the Sponsor Guidance.
The Home Office is entitled to carry out a compliance visit as they see fit (also known as “compliance audits” and “inspection visits“), and there is zero tolerance for non-compliance.
A digital compliance inspection implies checking your information (records, evidence or information you have previously submitted).
Anyone deemed non-compliant may face fines, a civil penalty, or even a suspension/revocation of their Sponsor Licence.
This outcome can damage a business beyond redemption.
There are four areas to sponsor licence compliance. The core duties include:
- Prevention of illegal working and monitoring immigration status
- Record keeping duties
- Reporting duties
- General Duties
Prevention of Illegal Working and Monitoring Immigration Status
A set of rules aimed at preventing illegal employment and monitoring immigrations statuses include:
- Ensuring that all personnel files include proof of the right to work.
- Recording visa expiry dates for any employee with a visa
- Right-to-work documentation can be held electronically
Key Audit Preparation Points include:
- Carrying out regular audits of all employee files
- Maintaining a record of all employees, including name, nationality, work location, dates of employment, job title, current visa type (if applicable), visa expiry date, etc.
- Being able to demonstrate a full understanding of manual right-to-work checks and the new online system
- Maintaining a robust system for tracking visa expiry dates
Record Keeping Duties
Sponsors are obliged to maintain compliance by keeping records for each worker. This implies complying with immigration rules, respecting workers’ requirements, and temporary worker sponsor guidance.
The Home Office’s Appendix D lists the following relevant documents that should be kept on each sponsored employee’s file:
The less obvious documents include the following:
- Historical as well as current contact details
- Record of the date the employee entered the UK if not clear from their visa
- Payslips (or electronic access to)
- History of absences (or electronic access to)
- Evidence of recruitment to demonstrate the genuineness
Key Audit Preparation Points include:
- Knowing what Appendix D is
- Ensuring that you have a system to keep up-to-date and historic contact details for each sponsored employee, including their UK residential address, personal email and mobile phone number
- Keeping a general ‘Sponsor Management’ file including:
- your sponsor licence application and copy of supporting documentation for the application
- Relevant Home Office guidance: Appendix D; Sponsor a Worker – General Information; Sponsor duties and compliance; and Home Office Employer’s Guide to Right to Work Checks
The licence holder is required to report the following information to the Home Office’s Sponsor Management System (SMS), usually within ten working days:
- If the sponsored employee does not arrive on the intended Work Start Date stated on their CoS
- If the sponsored employee is absent from work without permission (more than ten working days)
- If the employer stops sponsoring an employee for any reason
- If the sponsored worker’s contract of employment terminates for any reason
- If there are any significant changes in the sponsored employee’s circumstances
- If the sponsored employee has a period of unpaid leave in excess of 4 weeks in any calendar year
- If you have any information which suggests that a sponsored employee is breaching the conditions of their leave
- If a sponsored employee’s employment is affected by TUPE or their sponsorship is eligible for transfer to another sponsor licence
- If there are any significant changes in the Sponsor’s circumstances
You must also give the police any information that suggests that a sponsored employee may be engaging in any criminal activity
Key Audit Preparation Points include:
- Ensuring your sponsored employees are working and paid in line with the details on their CoS and that appropriate SMS reports are made to reflect any changes
Having an effective system to:
- Monitor sponsored employees’ changes of circumstances, absences and whereabouts
- Ensure that your Level 1 user(s) are made aware of any relevant changes
- Be able to demonstrate to the Home Office that sponsored employees and their line managers are aware of the events that trigger a requirement to notify the Home Office
As for the general duties, the Sponsor should make sure that:
- Sponsor licence key personnel are permanently based in the UK, and any changes to key personnel are reported via SMS
- The Authorizing Officer is in place for the duration of the licences which meet the requirements in the sponsor guidance
- The Authorizing Officer checks the CoS assigned to sponsored employees on a monthly basis
- There is one Level 1 user, who is an employee, to ensure you have full access to the SMS at all times
- Level 1 or 2 users have secure emails and do not share passwords
You must comply with the Home Office’s immigration laws and all parts relating to the Worker Sponsor guidance. In order to do this successfully, the Sponsor must:
- Employ only workers who are qualified, registered or experienced to do the job
- Not employ workers with no experience, qualifications or immigration permission to do the job and who are no longer entitled to perform the job in question
- Not assign a certificate where there is no vacancy or role which meets the Sponsored Worker criteria
- Only allow workers to undertake roles that are permitted by the conditions of their stay
- Only assign a CoS to a worker who you believe will meet the immigration requirements
- Not assign an undefined Skilled Worker Certificate of Sponsorship to a worker who requires a defined one
You have the following duties of cooperation:
- To allow Home Office staff access to any premises, any site under its control, on-demand to adhere to any action plan set by the Home Office
- To seek to minimise the risk of immigration abuse by complying with any good practice guidance that the Home Office or any sector body may produce for sponsors
Sponsor Licence Ratings
Essentially, there are two sponsor licence ratings:
Provided that you are successful in your application, you will be awarded an A-rating. Locally, sponsors must carefully maintain their system and policy in order to maintain their rating.
On the other hand, if the Home Office comes to a conclusion that the business is not complying with its sponsor duties, you will be awarded a B-rating instead. Sponsors with a B-rating will need to regain their A-rating over a period of time. Provided they fail to do that, the licence will be revoked.
Important: Home Office can suspend a licence without taking the preliminary step of downgrading.
Common Pitfalls: Organisation, Employees & Other Issues
Adhering to Home Office compliance responsibilities is vital to a sponsor licence holder.
However, certain common issues may arise.
Here are some common pitfalls relating to the organisation:
- The organisation address has changed and has not been notified to the Home Office
- Key personnel is no longer working for the business but are still listed on the licence
- Sponsor entities and sites where sponsored employees are working are not listed on the licence
- Failure to report a change of organisation ownership
- The Sponsor is supplying sponsored foreign workers to fill roles with third parties or does not have full responsibility for all of the duties, functions and outcomes of the job
Some common pitfalls that concern the sponsored worker’s employment:
- Paying sponsored workers below the general/going rate threshold or wage stated on CoS
- Working longer hours than stated on the CoS
- Failure to report changes in circumstance
- A sponsored worker role changes to a different SOC code without a change of employment application
- The role stated on the employment contract does not match that stated on the CoS, which raises doubts as to the genuine vacancy
- Appendix D documents are missing, not kept in order, or are accessible
- Resident Labour Market Test was not satisfied where applicable under the previous Tier 2 General route (or appropriate evidence was not retained)
Other issues that may arise include:
- The organisation is not registered with a relevant regulatory body
- Sponsor has been issued with two or more civil penalties for employing illegal foreign workers
- A CoS is assigned to a close relative/partner of the level 1 user
- Sponsor has required employees to contribute to the Immigration Skills Charge or has a clawback agreement in place to recoup the ISC
This is why sponsor licence compliance training is considered useful, as it can help employers become familiar with the employment law and understand why sponsor licence duties are crucial.
Our team of experienced lawyers at IAS is ready to work with you through the immigration process, helping you maximise your chances of a successful outcome. Clients will be assigned a dedicated immigration lawyer who perfectly matches their individual and professional needs.
Our team provides expert advice and professional representation to guide them through the application and decision-making process from start to finish.
To learn more about our services, get in touch with us.
Last modified on March 20th, 2023 at 3:05 pm
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No. Having an office is not necessary. If you do not have a separate office, you can just set aside space at home for the business. You could also find a cheap virtual office.
Unless the person has a visa that allows them to work, as an employer, you are not permitted to employ a non-settled migrant worker without obtaining a sponsorship licence in the first place.
If you do, you are in danger of facing potential civil penalties as well as criminal convictions.
This is a unique reference number which is assigned to a Sponsor Licence holding employer. If you happen to be a worker or temporary worker, you should go and check your company’s number on your Certificate of Sponsorship.
Firstly, the Sponsor should gain access to their SMS. There, they will find the “Renew your Sponsor Licence” and pay the fee.
When renewing the licence, you should also have an internal audit of your HR systems. This is to ensure that you continue to meet your duties.