Cooling-Off Periods in Sponsor Licence Applications
UK-based companies that hold a sponsor licence can sponsor foreign employees to live and work in the UK under the Skilled Worker or Global Business Mobility immigration routes. In its published guidance, however, the Home Office makes clear that the ability to sponsor migrant workers is “a privilege, not a right”. A company is only permitted to hold a sponsor licence if the Home Office is satisfied that it is complying, or will comply, with the many duties and responsibilities that come with having one.
When applying for a sponsor licence, therefore, it is imperative that a company demonstrates that it is capable of complying with its sponsor duties, and if the application is granted, will indeed do so. This is doubly important if the company has previously had an application for a sponsor licence refused, and still more so if it previously held a licence but had it revoked. In these scenarios, the Home Office will look at any fresh application with a particularly watchful eye, and there are additional considerations that the company will need to bear in mind, including the possibility of a cooling-off period.
What Is a Sponsor Licence Cooling-off Period?
Companies are not necessarily free to apply for a sponsor licence at any time. In certain circumstances, they may be subject to a “cooling-off period” – a window of time during which they will not be able to make a successful application. Applying during a cooling-off period will lead to an automatic refusal, with no opportunity for discretion.
A cooling-off period may be imposed in the following circumstances:
- A previous application for a sponsor licence has been refused
- A sponsor licence that was held previously has been revoked (or surrendered whilst compliance action was taking place with the intention of avoiding revocation)
- You have been issued with a civil penalty from a specified list
- You have been convicted of a criminal offence from a specified list
Who Does a Cooling-off Period Apply To?
It is important to note that a cooling-off period does not just apply to the company, individual or legal entity that was the subject of the refusal, revocation, civil penalty or conviction. Rather, it can apply to a wide range of people connected with the business, including any:
- Key Personnel or proposed Key Personnel (i.e. any Authorising Officer, Key Contact, Level 1 User)
- Person involved in the day-to-day running of the business
It is therefore very important to check that no person who is linked to the business in any of those ways is subject to a cooling-off period. If they are, this would lead to the licence application being refused.
How Long Is a Sponsor Licence Application Cooling-off Period?
The length of a cooling-off period depends on the reasons for which it is imposed.
If you previously had a sponsor licence application refused, there will be no cooling-off period if:
- your application was sent by a representative;
- you did not provide documents or information we requested by a specific deadline for reasons outside your control; or
- you applied to be licensed on the Scaleup route and your application was refused solely because you do not meet the definition of a ‘qualifying Scale-up sponsor’
If you previously had a sponsor licence refused and none of the above apply, you will be subject to a cooling-off period of 6 months.
Where you have previously held a sponsor licence that has been revoked (or you surrendered it whilst compliance action was taking place to avoid revocation), you will ordinarily be subject to a cooling-off period of 12 months. A 12 month cooling-off period also applies when you have been issued with a civil penalty for employing an illegal worker, or more than one civil penalty for letting residential premises to an adult without a right to rent. Any civil penalties will need to be paid off in full before a fresh application can be made.
More numerous civil penalties and charges can lead to a cooling-off period of up to 5 years. Factors that will determine the length of the cooling-off period include the number of penalties imposed, the number of illegal workers/disqualified adults involved, the amount of the penalties, the extent of cooperation with the Home Office or relevant authorities, and the speed with which any fines were paid, or the extent of compliance with any agreement to pay fines in instalments. Again, any civil penalties will need to be paid off in full before a fresh application can be made.
Penalties or charges for carrying clandestine entrants, carrying passengers without proper documents, or bringing passengers to the UK in breach of an authority to carry scheme will lead to an automatic 5 year cooling-off period.
Where more than one of the circumstances above is applicable, the longest of the relevant cooling-off periods will apply.
Submitting a New Sponsor Licence Application
If you are satisfied that your business is not subject to a cooling-off period, or any relevant cooling-off period has expired, you can at that stage make a fresh sponsor licence application.
Of course, the fact you are permitted to apply is no guarantee that your application will be successful. On the contrary, an application will need to be particularly thorough in showing that the requirements for sponsorship are met.
A key part of this will be to show that the reasons for the previous refusal or revocation no longer apply. If, for example, the Home Office was not satisfied that your business had suitable HR systems in place to monitor the activities of migrant workers, you would need to demonstrate the specific changes you had implemented to address this. There is a strong possibility that the Home Office will conduct a compliance visit as part of the application process.
The worst case scenario is that the fresh application is also refused, and the business is subject to a further cooling-off period. However, so long as you submit a detailed and careful application that demonstrates that the requirements for a sponsor licence are met, this can be avoided.
Contact our Immigration Barristers
A sponsor licence revocation or refusal can be seriously damaging to a business in the short or long term, and very often submitting a fresh application as soon as possible will be a matter of urgency. However, it is important to take every precaution to ensure that the new application has the greatest possible chances of success. For expert advice and assistance in relation to a sponsor licence application, or advice following a revocation or refusal, contact our Immigration Barristers on 0203 617 9173 or complete our enquiry form below.