July 15, 2017

How to employ skilled non-EEA workers – a Sponsor Licence

Employing an non EEA worker in the UK is not always simple and easy process, specially if an employer asking for a sponsorship licence for first time.
This is because the UK immigration rules are demanding on employers who want to bring talent to the UK.

To employ skilled non-EEA workers, UK employers first have to apply for a sponsor licence. But a refusal rate of 15% suggests employers are struggling to get the application process right.
And through increasingly protectionist policies, designed to encourage employers to favour resident labour, the rules have become more onerous – and costly – for employers.
However, the ability for UK organisations to access skilled talent from overseas has never been more essential.

With figures showing EU workers leaving the UK amidst Brexit uncertainty, and domestic skills shortages in sectors as broad as tech, health and social care, education and engineering, employers in Britain are looking to the global talent market to meet their recruitment needs.

Tier 2 visa

The Tier 2 visa is the primary entry route to the UK for skilled foreign workers from outside Europe.

To be able to hire new skilled workers from outside the EU under a Tier 2 visa, or extend work permits for current employees, employers must apply to UK Visas & Immigration (UKVI) for a sponsor licence.

To apply for a sponsor licence, you must show through the application process that:

You are a genuine organisation operating lawfully in the UK.
Your key personnel named on the sponsor application are honest, dependable and reliable.
You have effective HR and recruitment systems and practices in place.
You are offering genuine employment that meets the Tier 2 skill level and appropriate rates of pay.
What do employers and HR need to know before they apply for a sponsor licence?

Questions to ask before you apply for a sponsor licence

How will you use your sponsor licence?
Since successful licences are valid for four years, you need to be clear at the outset what your recruitment needs will be in order that your licence provides sufficient cover for its duration.

When you apply for a sponsor licence you will need to specify the types of workers you are looking to recruit:

Tier 2 workers: Skilled workers with long-term job offers.
Tier 5 workers: Skilled temporary workers.
You then need to consider how you will use the sponsor licence.

There are two options available – the unrestricted Certificate of Sponsorship (CoS) and the restricted CoS.

Unrestricted CoS are used for new employees with a salary of more than £155,300; switching within the UK to the Tier 2 (General) visa; and extensions.

When you apply for your licence you will be asked to estimate how many Tier 2 certificates you will require. You will then be granted fixed allocations of unrestricted CoS on a yearly basis as part of your sponsor licence.

You must issue the unrestricted CoS to the overseas worker within three months of allocation and within six months of first advertising the vacancy.

Individuals must then apply for Tier 2 clearance within three months of receiving the CoS.

Restricted CoS are intended for new employees applying from outside the UK to enter under a Tier 2 (General) visa and who will be earning under £155,300 per annum, and individual dependants of Tier 4 students applying from the UK wishing to switch to a Tier 2 (General) visa.

There is an annual restriction in place on the number of migrant workers admitted to the UK from outside the EU under a Tier 2 (General) visa on restricted CoS.

UKVI review all applications for restricted CoS on a monthly basis. Those requests which meet the points criteria (minimum 32 points) are approved. If the restrictive allocation limit is oversubscribed, applications are prioritised according to a points table.

The available restricted CoS are allocated based on the highest points scored. Points are awarded based on whether the job is in a shortage occupation, a PhD-level occupation, and the salary on offer.

There are no guarantees if and when restricted CoS applications will be approved.

If a CoS is granted, the employer assigns the CoS to the individual, who can then use the reference number to apply to the Home Office for entry permission.

Any restricted CoS unallocated after three months will be automatically returned to UKVI for reallocation.

2. Who should you appoint as key personnel?

As a sponsor licence holder, you are required to nominate individuals within your organisation to carry out particular administrative functions – so-called ‘key personnel’:

• Authorising Officer • Key Contact • Level 1 user

It is important that you understand what these roles are all about, and who you can – and critically cannot – appoint to them.

You must also understand what your obligations are in terms of the security of e-mails and passwords issued to anyone carrying out these roles. These must not be shared, even between your Key Personnel.

You must make also sure that you have an Authorising Officer and at least one Level 1 user in place at all times. If a member of staff leaves and you fail to appoint someone else to the role, UKVI can choose to downgrade your licence (and charge you for the opportunity to upgrade it again) or even revoke your licence altogether.

Once you have been granted a licence you can also choose to nominate individuals as Level 2 users.

3. Compile your application & supporting documentation

To apply for a sponsor licence you must write and submit an online application. Preparation is essential.

In support of your online application, you must collate and submit supporting documentation to meet the necessary evidentiary requirements.

The supporting documents must be supplied within five days of the initial application. Failure to submit all required documents will result in your application being delayed or rejected, and further costs being incurred.

So it’s important to have prepared all of the necessary evidence and documentation by the time you make your application online.

4. Prepare for a UKVI inspection

You may be subject to a compliance visit from UK Visas and Immigration following receipt of your application. The purpose of a Home Office inspection is to verify whether you have adequate HR systems in place to meet sponsor licence requirement and to assess whether or not to grant the licence.

An audit of your HR operations will be key in prepatring for a site visit, to identify process weakness or omissions that could cost you your licence application.

5. Use of Resident Labour Market Test

Where your organisation is looking to hire overseas, you must first evidence that the domestic labour market has not been able to fulfil the position by using the Resident Labour Market Test (RLMT).

In recognition of shortages in a number of areas, roles which feature on the Shortage Occupation List (SOL)are exempt from the RLMT. In cases of SOL positions, employers may issue a Tier 2 CoS to a non-European worker without the need to demonstrate that a resident labour market test (RLMT) has been carried out.

6. Right to Work

In addition to the new administrative burdens of the sponsor licence, you will continue to be required to meet your illegal working duties. The requirements state that all employees are required to provide documentation that proves their right to work before being employed by a UK company and copies of this information must also be retained by the employer.

7. Internal capability

Are your staff aware of their duties and responsibilities under the sponsor licence? Training is likely to be required to ensure relevant knowledge and internal capability internally across HR, line managers and site managers.

8. Ongoing compliance duties

Sponsor licence holders are required to meet a number of duties, which you must take account of within your processes, policies and procedures.

Some duties appear more widely understood than others.

The duty to notify a change in circumstances is for example often overlooked in reality, particularly where wider organisational concerns demand attention and focus such as a merger or acquisition or other organisational change. Failure to comply with your ongoing compliance duties can result in a downgrade in user rating, a licence suspension or revocation – putting the jobs of existing migrants at risk and impacting your organisation’s operations.

Ongoing compliance management will also pay dividends when it comes to renewing the licence – which is arguably even more of a complex process.

Penalties for failing to comply with immigration compliance and sponsor licence duties are designed to deter and impact operations. Yet UK immigration rules are subject to constant change and revision, making it critical that sponsor licence holders stay up-to-date and compliant with their duties.

June 27, 2017

The position of EU citizens living in the UK and UK nationals living in the EU (proposal)

Dear Mr. Brandon ,

Today, the Government published a paper outlining our offer for EU citizens in the UK, and UK nationals in the EU. You can read more about our offer for EU citizens on GOV.UK: Status of EU citizens in the UK: what you need to know.
You can also read the full policy paper: Safeguarding the position of EU citizens living in the UK and UK nationals living in the EU
There is no need to do anything now. The UK will remain a member of the EU until March 2019 and there will be no change to the rights and status of EU citizens living in the UK, nor UK nationals living in the EU, during this time. So, EU citizens do not need to apply for documentation confirming their status now.
Our policy paper sets out that we will be asking EU citizens to make an application to the Home Office for a residence document demonstrating their new settled status. We will make the process as streamlined and user-friendly as possible for all individuals, including those who already hold a permanent residence document under current free movement rules. We expect the new application system to be up and running in 2018.
Information is also available on what UK nationals travelling and living in Europe need to know.

Thank you,

Home Office Communications

June 22, 2017

‘Deport first, appeal later’ struck down by Supreme Court – what next?

You could be forgiven for having missed it amidst the much more harrowing news events of last week. But last Wednesday the government’s Hostile Environment strategy took a major body blow. The controversial ‘deport first, appeal later’ policy was struck down by the Supreme Court in a unanimous ruling.
JCWI has been campaigning against this policy since its introduction in the Immigration Act 2014, and we are encouraged and relieved by the Supreme Court’s judgment. So what, in a nutshell, is the significance of this case for migrants and campaigners?
The case of R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] tested the legality of the Government’s policy of deporting convicted foreign nationals who have been convicted of crimes, without allowing them to exercise the right of appeal from within the UK. It involved two cases against deportation, considered to be arguable by the Secretary of State. In both cases, the Home Office had certified the cases as only bringing a right of appeal from outside the UK, meaning that the appellants would not have the chance to bring the appeal from within the UK and to be present at the hearing. It was argued that the Home Secretary would breach their human rights by removing them from the UK before they could appeal the decision and without making proper provision for them to appeal and participate in the appeal.
We had been waiting with interest for the Supreme Court’s judgement in this case, and have been greatly concerned by the implications of the ‘deport first, appeal later’ policy. During the passage of the 2014 Act JCWI argued that denial of in-country appeal rights amounts to a breach of basic principles of fairness and access to justice. In our view this policy undermines the rule of law – it essentially enables the Government to avoid scrutiny of its deportation decisions.
Worse still, the ‘deport first, appeal later’ policy was extended beyond foreign nationals who had committed crimes under the Immigration Act 2016. This means that all migrants seeking to make a legal appeal against an immigration decision would only be able to do so from outside the UK, unless it was considered that this would put them at risk of serious or irreversible harm on return. This would result in a wide range of people, including family members of British citizens, being denied the ability to challenge decisions made by the Government in a court of law – a central legal principle which we all have come to depend upon.
Thankfully, last week, the Supreme Court roundly and emphatically found that May’s policy was unlawful. The judges found that deporting foreign national offenders forced them to conduct appeals from abroad, but did not provide a fair system compliant with human rights for doing so. The Court was not convinced that appellants could find legal representation overseas or access the facilities in order to give live evidence from abroad. It also reported that just 72 out of 1,175 people subjected to the policy had lodged an appeal from overseas since its introduction and that none, to date, have been successful.
It is now unlikely that the Government can continue to deport foreign national offenders, without first giving them the right of in-country appeal. It is also very unlikely that the scheme can be extended to cover appeal rights on wider immigration decisions without the policy being amended. Whilst the Government may seek to make practical arrangements to overcome some of the Court’s objections, it’s hard to see how this could work in practice given the depth of the criticisms. It may also be that some individuals whose appeal from overseas has been unsuccessful, or who had been unable to appeal, will be able to apply to have their cases reconsidered and potentially be returned to the UK in order to do so.