Sponsor Licence Holders - Latest Changes to Sponsor Duties
Sponsor licence holders have a number of duties and responsibilities that they must comply with to maintain their licence. It is very important that sponsor licence holders understand the duties that come with holding a licence, and have adequate systems in place to ensure compliance. A failure to comply can have serious consequences for the business and the migrant workers that it employs. If the Home Office finds that the licence holder has failed to comply, it can decide to suspend, downgrade, or revoke the licence. Please see our previous post on the potential implications of non-compliance here.
This blog looks at the changes to the sponsor duties recently published on 09 November 2022.
ISC Exemption
The Immigration Skills Charge (“ISC”) is payable when a sponsor assigns a Certificate of Sponsorship (“CoS”) to a migrant. It applies to the Skilled Worker Route and the Global Business Mobility – Senior or Specialist Worker route. This charge cannot be passed on to the sponsored worker.
The amount payable depends on the size of the organisation sponsoring the workers, and the length of employment stated on the CoS. Large organisations must be £1,000 per year while small or charitable organisations must pay £364 per year of the sponsorship. When making sponsor licence applications, organisations are required to specify the size of the organisation. It should be noted that changes to an organisation’s size should be reported within 10 working days.
There are some exemptions to paying the ISC fee, including:
- Workers applying for entry clearance for a period of less than 6 months
- Workers sponsored in the following occupations – 2111, 2112, 2113, 2114, 2150, 2444, 3441, and 3442;
- Workers already sponsored by the sponsor and the new CoS will not exceed their current permission;
- Student and Graduate switchers; and
- Workers assigned a CoS under the Tier 2 (General) or Tier 2 (ICT) route before 06 April 2017 (where certain conditions apply).
A new exemption has been added to the above list for Senior or specialist workers who:
- Have been assigned a CoS on or after 01 January 2023;
- Are a national of of an EU country or a Latvian non-citizen (does not apply to nationals of Iceland, Norway, Liechtenstein or Switzerland; and
- Have been assigned to the UK by a business established in the EU and forms part of the same sponsor Group.
In order to meet the new above exemption, the end date of the assignment, as specified on the CoS, must not be more than 36 months (3 years) after the start date. If the UK company is not already linked as part of the sponsor group, this will need to take place before they can sponsor a migrant in this category to take advantage of the exemption. This can take up to 18 weeks.
It should be noted that the above new exemption is subject to Parliamentary approval.
Salary payments
Salary payments can be paid to the worker into their UK or overseas bank account. The guidance has been updated to confirm that:
- Salary payments must be paid into their own account;
- Payments cannot be made in cash (doing this can result in the revocation of the licence);
- If the worker is paid by cheque, it must be paid into the worker’s own bank account.
Salary payments from the sponsor’s bank account should be clearly identifiable. It is advisable that the sponsor keeps records of each payment it makes to the migrant worker during the course of their sponsored employment.
Changing start-dates
Previously, the guidance stated that if a migrant’s start-date was delayed beyond 28 days from either the start date as stated on the CoS, the validity date of the vignette, entry as a Creative Worker, or the date the migrant was informed of their grant, whichever is later, they should cease sponsorship. This was widely regarded as an arbitrary rule which resulted in some workers’ permission being cancelled purely on this basis.
The guidance has been updated to soften this approach. Start dates can be changed through the SMS system either by adding a sponsor note on the CoS (where the migrant is yet to make their visa / immigration application) or by reporting migrant activity (where the migrant has made their application, but it remains pending).
Where the migrant would start work later than 28 days after the above, the Sponsor can now explain the reasons for this by reporting the new start date through the SMS system. This blog provides more information regarding this change. It should be noted, however, that the Home Office does not have to accept the reasons for the delay and, if it does not, then a migrant’s permission may be cancelled.
Requesting Defined CoS allocations
A Defined Certificate of Sponsorship is required by a Skilled Worker applying for entry clearance from outside the UK.
A Defined Certificate of Sponsorship is not assigned from the sponsor’s annual allocation – there are no limits to the number of Certificates available. Sponsors must make a request for a Defined CoS allocation. Contrary to the Undefined CoS allocation requests, specific details of the migrant must be provided. Once the allocation is received, the CoS can only be assigned to the migrant that the request was made for.
The guidance has been updated to stipulate that when requesting a Defined CoS allocation, the number of working hours must now be included as part of the job description summary submitted in the request. Where this is not provided, the allocation request is likely to be refused.
Level 1 users should take care to include this information as it is not explicitly requested when making the allocation request.
Unpaid leave
Previously, a migrant could take a maximum of four weeks’ (pro-rata for part-time staff) unpaid leave, unless an exception applied. Exceptions included statutory maternity/paternity/parental or shared parental leave, statutory adoption leave, sick leave, taking part in legally organised industrial action and assisting with a national/international humanitarian/environmental crisis.
Sponsors were required to cease sponsorship if unpaid leave exceeded four weeks and no exception applied. The guidance has now been updated to state:
“If you believe there are compelling or exceptional circumstances as to why you should not stop sponsoring a worker who has been absent from work without pay for more than 4 weeks (and an exception does not apply), you must report the absence and reasons via the ‘Report migrant activity’ function in the SMS for UKVI to consider.”
This is, of course, a welcome change, but there is no guarantee that the Home Office will accept the reasons, and they choose to cancel the migrant’s permission if they do not consider there to be a good reason for the extended absence.
Contact our Immigration Barristers
For expert advice and assistance in relation to applying for or managing a sponsor licence, please contact our immigration barristers in London on 0203 617 9173 or via the enquiry form below.
