From 1 January 2021, most businesses wanting to recruit non-UK national workers will need to be a Home Office licensed sponsor.
We have put together some top tips and pitfalls for businesses looking to obtain and hold sponsor licences to help you address the additional legal and compliance requirements for recruitment post-Brexit.
Top Tips
- Start early:
The Government strongly recommends that if you are not already a licensed sponsor and you think you will want to sponsor migrants through the Skilled Worker route from 1 January 2021, you should apply now. We would echo this advice and urge you to take steps now to ensure you have the systems in place when the new rules come into force.
Anecdotally, licence applications are being dealt with quite quickly at the moment (within a month), but the standard processing time for an application is usually eight weeks and will start when the Home Office receive your application. However, it may take longer:
- If the Home Office decide to conduct a pre-licence compliance check first.
- Due to the ongoing challenges posed by COVID-19.
- If, as we expect, the Home Office see a surge in applications over the next 3 months.
Note also that this timescale does not include the time it will take to gather the necessary information and documentary evidence to apply for a sponsor licence.
- Record-keeping:
All documents provided as part of your application to become a licensed sponsor must be kept for the duration of the period covered by the licence (four years or less). Record keeping is an ongoing duty that employers must adhere to. For this reason, documentation and information relating to the migrant who is being sponsored (including their passport, ID, full address history, contact details, records of absences, evidence of salary and contractual documents) must be retained.
You must consider at the outset whether you have systems in place to comply with these duties as failure to do so can lead to action being taken against your organisation.
- Identify your key personnel:
Get organised by deciding who will manage sponsorship within your business and be the key personnel named on the sponsor licence. The key personnel are:
- Authorising officer: a senior and competent person responsible for the actions of staff and representatives who use the sponsorship management system (SMS). It would be advisable for this individual to undergo training so that they are comfortable with their compliance obligations.
- Key contact: your main point of contact with UK Visas and Immigration (UKVI).
- Level 1 user: responsible for all day-to-day management of your licence using the SMS.
These roles can be filled by the same person or different people. However, it is crucial to think about the personnel at the very outset. Can they be filled by existing staff or does someone need to be hired to fulfil these duties?
Pitfalls
- Failing to provide supporting documents in time / incorrect supporting documents
Once the online sponsor licence application form has been submitted, the completed submission sheet and supporting documents must be sent to UKVI within five working days.
A common reason why UKVI refuse sponsor licence applications is where the applicant has failed to provide the correct supporting documentary evidence within five working days. The rules on sponsor licence applications can be complex but it is crucial to ensure the correct documents applicable to that specific legal entity are submitted in the format required by UKVI.
We have advised many clients who have previously had their licence applications rejected because they have not complied with the requirements, resulting in delays and additional expense.
The online sponsor licence application form should only be submitted once the Authorising Officer is satisfied that the organisation has all of the correct supporting documents in order and ready to be submitted to UKVI. Currently, UKVI is accepting scanned documents in support of licence applications due to COVID-19 but, prior to this, they required hard copy certified documents. If you are sending off hard copy documents, we recommend that these are sent via special or recorded delivery so that the delivery can be tracked.
- Failing to satisfy UKVI of genuineness of employment
Sponsor licence applications will be refused if UKVI is not satisfied that the role for which you are seeking sponsorship is “genuine”. In other words, the role cannot be created simply to provide a visa route for an individual to stay or remain in the UK, or with an exaggerated or incorrect job description to make it appear to meet the immigration requirements when it does not. In addition, you cannot have advertised the role with requirements that are inappropriate to the job on offer or tailored to exclude non-migrant workers from being recruited.
When the sponsor licence application is submitted, additional information in respect of the role or roles to be sponsored must be provided to UKVI with the supporting documentation.
This includes the job title and Standard Occupational Classification Code for the role, a job description, details of the skills, experience and qualifications required to perform the role, the guaranteed salary if the job was vacant at the date of the sponsor licence application and details of where the role sits on the organisational hierarchy chart. UKVI will assess the information you have given in order to determine whether it is satisfied that the role and supporting recruitment process are genuine.
Again, the requirements are complex and require a detailed understanding of the eligibility requirements for work visas, so businesses would be prudent to consider taking expert advice, particularly if they are unfamiliar with the regime and the nuances of the rules.
- Failed UKVI Compliance Audit
UKVI can visit an existing or prospective sponsor at any time to assess the business’ compliance with their immigration obligations. Whilst these visits were suspended due to COVID-19, UKVI have confirmed that they have now restarted and the numbers of visits taking place are expected to increase in the coming weeks.
Although it is not common, UKVI will sometimes determine that they need to undertake a compliance visit before deciding whether or not to grant a sponsor licence. If UKVI decides to conduct a pre-sponsor licence compliance visit, then they will normally give two weeks’ notice to the organisation. The purpose of the visit is to check the applicant organisation is genuine and trading or operating lawfully in the UK and to check that the HR management systems comply with UKVI standards.
Where UKVI are not satisfied that an organisation’s HR systems and recruitment practices are adequate such that they are able to comply with their duties or that key individuals are not sufficiently trustworthy or capable of carrying out your sponsorship duties, then the application will be refused.
It is important to be aware that if a sponsor licence application is refused there is no right of appeal and the organisation should not usually make another application until six months after the date of the letter confirming the refusal decision. This can have a huge impact on organisations needing to recruit skilled migrant workers as soon as possible, as a delayed application can mean losing out on candidates and being unable to recruit to meet business needs.
Alternatively, UKVI may conduct a compliance visit at any time whilst the sponsor holds a licence or when the licence comes up for renewal. However, resources are limited and UKVI certainly do not have the ability to visit all registered sponsors. As such, their compliance visits tend to focus on what they classify as high risk industries/sectors, where there is a history of non-compliance or where they have had a “tip off” (which sometimes arises from a disgruntled employee).
Non-compliance may lead to the licence being suspended or the business being given an action plan to remedy their failings. In the worst case scenario, the licence could be revoked. This would mean that the business would not be able to recruit non-UK nationals requiring sponsorship and any existing sponsored migrants would have their visas cut short. Typically, they would be given 60 days to leave the country or find another sponsor. The business would typically not be able to reapply for a licence for 12 months. The business may also find that it has been employing migrants illegally (depending on the circumstances) which may result in a fine of £20,000 per illegal worker.
Again, the importance of taking advice at the first hint of any non-compliance should not be under-estimated. The main route of legal challenge to a licence revocation is judicial review, which can be very expensive. What’s more, the track record for judicial review success is very poor. In most of the cases which have made it to court the Home Office has been victorious. Instead, businesses should invest time and effort in making representations to the Home Office at an early stage to try and prevent revocation of their licence in the first place. Our team has successful experience in this area.
Given the many potential pitfalls and complexities of navigating compliance with the immigration rules and regulations, businesses should not underestimate the importance of taking advice when applying for a sponsor licence and throughout its duration. If issues are raised by UKVI, businesses need to respond swiftly to protect their licence. The consequences for the unwary are potentially very serious and may result in irreparable damage to your business.
We are well equipped to help you manage these issues and has advised many clients on these difficult areas.
If you require more information on this topic or require assistance with a sponsor licence application or query, please contact Heena Kapadi or Brendan McAleese or another member of our Business Immigration team .
