Are you Satisfying your Duties as a Tier 2 Sponsor?
Sponsors are required to ensure they are complying with immigration law and have the necessary systems in place to retain their Tier 2 Sponsor Licence. As Sponsors are benefiting from migration they are expected to ensure a balanced system. The main purposes of sponsorship duties are to:
- Ensure compliance with the Immigration Rules
- Address weakness within processes
- Capture concerning behaviour from migrants at an early stage
- Prevent the abuse of the immigration system
The Home Office may visit Sponsors to check there is full compliance with their duties before or after making a decision on the licence application. These duties start the day the licence is granted and end when the licence is surrendered or revoked.
Failure to comply with Sponsorship duties may result in the Sponsor’s licence being suspended or downgraded. This could have a negative effect on the business’s reputation and may lead to a loss of skilled staff, inability to sponsor talent etc. In certain cases, the licence can be revoked altogether which could be detrimental on the Migrant whose leave could be curtailed and they may be forced to leave the UK.
The Sponsor Duties are set out below. In all cases, the duties are specific and technical. To ensure your compliance is appropriate to your organisation, you should audit your procedures regularly. An external audit from a specialist immigration lawyer is a good way to test compliance.
1. Record Keeping
Sponsors must keep and have available on request, either a hard copy or electronic file:
- Evidence of migrant’s identity
- Evidence of migrant’s right to work
- Migrant’s contact details
Sponsors must provide, if asked:
- Any documents relating to the migrant or the running of organisation that the Home Office considers relevant to assessing compliance with sponsorship duties
- If the migrant is under 18, a letter from their parents/ legal guardian or one parent if they have sole legal representative
Sponsors must report certain information or situations to the Home Office through the Sponsor Management System (SMS) within a specified time frame. Some events that trigger reporting obligations within 10 working days include:
- If a migrant fails to turn up on their first day.
- There are significant changes in a migrant’s circumstances. For example, the employer stops sponsoring the migrant, their contract is terminated earlier than stated on the Certificate of Sponsorship (CoS), promotions, salary changes, location changes etc.
- Migrant’s employment is affected by TUPE or similar protection.
- There is a change in the size of business (as defined in Part 13 Companies Act 2006)
- Migrant breaches the conditions of their leave
- Migrant is absent for more than 10 consecutive days
A Sponsor must report within 20 days if:
- Significant changes in Sponsor’s circumstances – sells business, stops trading, goes into administration etc.
3. Complying with the Law
Sponsors must ensure they are complying with the law by only employing qualified, registered or experienced Migrants and not Migrants with insufficient experience, permission or those who are no longer entitled to carry out the job. They must not assign a CoS where there is not a genuine vacancy. Sponsors must keep necessary documents to evidence they meet the requirements and must only employ Migrants for positions on the Shortage Occupation List. They must also ensure compliance with UK employment law and any other applicable requirements.
4. Genuine Vacancy
Under the genuineness rules, employers need to demonstrate the position advertised is a genuine vacancy. This is defined as one which requires the migrant to perform specific duties for the position and meets all requirements for the tier and category. In order to assess whether the position is a genuine vacancy, the Home Office may request additional information.
5. Co-operating with the Home Office
Sponsors must co-operate with and allow the Home Office to access any premises on demand. If the licence is downgraded, they will be required to adhere to a Home Office action plan and minimise the risk of immigration abuse by complying with good practice guidance.
Sponsor duties – specific to Tier 2 (General) and (ICT)
As well as the general duties, a Sponsor is required to adhere to specific duties for a Tier 2 (General) and (ICT) visa.
1. CoS duties:
- Employers must ensure they apply for a restricted CoS, if required
- Migrants should not be assigned a restricted CoS for any job other than what is stated on the application for a restricted CoS
- Employers must not assign a restricted CoS where an unrestricted CoS is required and vice versa
2. Once the Sponsor (Tier 2 General) assigns a CoS, they guarantee:
- A genuine Resident Labour Market Test (RLMT) has been carried out
- The job is exempt from the RLMT, if applicable; or
- The job appears on the Shortage Occupation List (UK and Scotland)
3. Employers must also guarantee the:
- Migrant is paid in line with the salary indicated when the position was advertised, if applicable
- Migrant is paid at or above an appropriate level
- Position is a genuine vacancy
Contact Our Business Immigration Barristers
It is important that Sponsors comply with their sponsorship duties in order to ensure they retain their licence and the migrant’s permission to work is not jeopardised.
For advice regarding Sponsorship obligations, contact our immigration barristers and lawyers in London on 0203 617 9173 or via our enquiry form below.