Home Office makes changes to Appendix FM Minimum Income Rule following MM case

The Home Office has published changes to the Immigration Rules intended to give effect to the Minimum Income Rule findings made by the Supreme Court in MM (Lebanon) & Others v the Secretary for the Home Department [2017] UKSC 10. The changes are set out in Statement of Changes HC 290 and here we go through them in detail.

Headline changes

The main headline changes are:

To allow for consideration of other sources of income to meet the Minimum Income Rule
Where other sources of income are relied upon the applicant, partner and any children, will be granted leave on a 10-year route to settlement
To give Appendix FM the cover of being compliant with 55 of the Borders, Citizenship and Immigration Act 2009
To allow for recourse to public funds in certain circumstances
Clarifying the drafting of the English language requirement for further leave to remain as a partner or parent
Ensuring that a partner of a person here with refugee leave or humanitarian protection cannot qualify for settlement before that person has done so
The changes shall take effect from 10 August 2017 and will apply to all decisions made on or after that date no matter when the application was made.

MM (Lebanon) recap

The MM (Lebanon) judgement concerned applications which fail to meet the Minimum Income Rule for entry clearance or leave to remain as a partner or child under Appendix FM or which otherwise fall for refusal and involve a child under the age of 18 years.

The Supreme Court in MM (Lebanon) upheld in principle the Minimum Income Rule which requires an income of at least £18,600 for British citizens and others to sponsor a foreign spouse and higher where children are involved. However, the court also held that the rules and policies used by the Home Office to assess such cases would need to be amended to take proper account of the impact on children and other possible sources of income and support.

As of 30 June 2017, there were around 5,000 such applications on hold. The Home Office says that today’s Statement of Changes will allow them to decide those applications and future applications consistently with the findings of the Supreme Court, so expect an influx of immigration decisions from 10 August 2017.

Changes to the General Requirements of Appendix FM

The General Requirements have been amended require the decision-maker to consider whether the Minimum Income Rule can be met from other sources of income, financial support or funds as set out in the new paragraph 21A of Appendix FM-SE.

It must now be evident from the information provided in the application that there are (using the infamous phrase) ‘exceptional circumstances’ which could render the refusal of the application a breach of Article 8 because it could result in unjustifiably harsh consequences for the applicant, the partner or a child under the age of 18 years old if the other sources of income are not considered.

The Home Office considers this to bring the test of proportionality under Article 8 into the Rules and the Rules, she says, are now a complete framework for her consideration of Article 8 grounds under Appendix FM.

Changes to the Specified Evidence

The other sources of income, financial support or funds which the decision maker will now consider includes:
credible guarantee of sustainable financial support from a third party
credible prospective earnings from the sustainable employment or self-employment of the applicant or their partner
or any other credible and reliable source of income or funds available to the couple
Paragraph 21A also makes for a ‘genuineness test’ with the onus on the applicant to demonstrate this for third party support or employment and self-employment.

In considering the genuineness, credibility and reliability of third party support the decision maker will consider whether evidence has been provided, and if provided, whether

the third party is in a stable financial situation,
that stability is sufficiently strong as to continue for the period of leave applied for, and
there will be no changes to the applicant’s relationship with the third party that may impact on the future availably of the funds.
For employment and self-employment there must be evidence of its existence and that it can commence within three months of the applicant’s arrival or grant of leave to remain. Any documentary evidence relied upon must be on headed paper and include a contract of employment or, for self-employment, various types of contracts that can demonstrate the intention of providing goods or services. For those without leave and unable to enter contractual arrangements, draft contracts can be accepted.

Loans would not be accepted unless the source is a mortgage on a residential or commercial property in the UK or overseas and is owned by the applicant, the partner, or both, or by a third party.

Best Interests of the Child

To provide for the consideration of the best interests of the child the SSHD has inserted into EX.1.(a)(ii) the following statement:

taking into account their best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK

The SSHD considers, by making an explicit statement of best interests, it gives effect to her duty under section 55 of the Borders, Citizenship and Immigration Act 2009 and now shields the entirety of Appendix FM. This, as we see in just one example below, is not sufficient on its own to bring the entirety of Appendix FM compliant with section 55.

The type of leave granted

Where the new provisions in GEN.3.1. or GEN.3.2. applies the applicant granted entry clearance or leave to remain as a partner or parent will now be on a 10-year route to settlement. This interpretation by the Home Office could be open to possible challange. The Supreme Court did not decide there was a seperate route to settlement but that alternative forms of income could be used to meet the Minimum Income Rule on the ‘regular’ route to settlement.

If, during that 10-year route, the applicant can subsequently meet the Minimum Income Rule she or he can apply later to enter the 5-year route to settlement.

Whichever route to settlement is granted, the children of the applicant or partner will be granted leave of the same duration and subject to the same conditions as their parent regardless of whether it is in their best interests to be granted a shorter duration of leave.

Recourse to Public Funds

VIEW NOW

The Home Office has allowed for access to public funds in two circumstances. If an applicant can provide satisfactory evidence that she or he is destitute (as defined under section 95 of the Immigration and Asylum Act 1999) or that there are particularly compelling reasons relating to the welfare of a child of a parent in receipt of a very low income, then the SSHD will allow for recourse to public funds on the grant of entry clearance or leave to remain. Although it is not clear from the changes how an applicant can both meet the Minimum Income Rule using alternative sources of income and either be destitute or on such a low income as to require public funds.

Home Office Guidance

It is usual for the Home Office to issue or amend guidance when Rule changes occur but as of today there are currently no changes to the guidance. The Home Office guidance relating to these Rule changes will be updated and published on the Home Office website later. We will update you when they are published.

The Devil is in the Detail

Whether the Home Office’s belief that Appendix FM is now the complete code that they always hoped it would be is questionable. There are also soft spots to pick at concerning the belief that it is entirely section 55 compliant. As always time, and the courts, will clear this up for us. Who would have thought Appendix FM could get any more complicated?

To drill down into some more of the detail, I’m going to quote some of the new rules direct from the Statement of Changes:

Changes to the General Requirements

“Exceptional circumstances

GEN.3.1.(1) Where:

(a) the financial requirement in paragraph E-ECP.3.1., E-LTRP.3.1. (in the context of an application for limited leave to remain as a partner), E-ECC.2.1. or E-LTRC.2.1. applies, and is not met from the specified sources referred to in the relevant paragraph; and

(b) it is evident from the information provided by the applicant that there are exceptional circumstances which could render refusal of entry clearance or leave to remain a breach of Article 8 of the European Convention on Human Rights, because such refusal could result in unjustifiably harsh consequences for the applicant, their partner or a relevant child; then

the decision-maker must consider whether such financial requirement is met through taking into account the sources of income, financial support or funds set out in paragraph 21A(2) of Appendix FM-SE (subject to the considerations in sub-paragraphs (3) to (8) of that paragraph).

(2) Where the financial requirement in paragraph E-ECP.3.1., E- LTRP.3.1. (in the context of an application for limited leave to remain as a partner), E-ECC.2.1. or E-LTRC.2.1. is met following consideration under sub-paragraph (1) (and provided that the other relevant requirements of the Immigration Rules are also met), the applicant will be granted entry clearance or leave to remain under, as appropriate, paragraph D-ECP.1.2., D-LTRP.1.2., D-ECC.1.1. or D- LTRC.1.1. or paragraph 315 or 316B of the Immigration Rules.

GEN.3.2.(1) Subject to sub-paragraph (4), where an application for entry clearance or leave to enter or remain made under this Appendix, or an application for leave to remain which has otherwise been considered under this Appendix, does not otherwise meet the requirements of this Appendix or Part 9 of the Rules, the decision-maker must consider whether the circumstances in sub-paragraph (2) apply.

(2) Where sub-paragraph (1) above applies, the decision-maker must consider, on the basis of the information provided by the applicant, whether there are exceptional circumstances which would render refusal of entry clearance, or leave to enter or remain, a breach of Article 8 of the European Convention on Human Rights, because such refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from that information would be affected by a decision to refuse the application.

(3) Where the exceptional circumstances referred to in sub-paragraph (2) above apply, the applicant will be granted entry clearance or leave to enter or remain under, as appropriate, paragraph D-ECP.1.2., D- LTRP.1.2., D-ECC.1.1., D-LTRC.1.1., D-ECPT.1.2., D-LTRPT.1.2., D-ECDR.1.1. or D-ECDR.1.2.

(4) This paragraph does not apply in the context of applications made under section BPILR or DVILR.

GEN.3.3.(1) In considering an application for entry clearance or leave to enter or remain where paragraph GEN.3.1. or GEN.3.2. applies, the decision-maker must take into account, as a primary consideration, the best interests of any relevant child.

(2) In paragraphs GEN.3.1. and GEN.3.2., and this paragraph, “relevant child” means a person who:

(a) is under the age of 18 years at the date of the application; and

(b) it is evident from the information provided by the applicant would be affected by a decision to refuse the application.”.

Changes to the leave granted for entry clearance as a partner

D-ECP.1.2. Where paragraph GEN.3.1.(2) or GEN.3.2.(3) of this Appendix applies, an applicant who meets the requirements for entry clearance as a partner (other than as a fiancé(e) or proposed civil partner) will be granted entry clearance for an initial period not exceeding 33 months, and subject to a condition of no recourse to public funds unless the decision-maker considers, with reference to paragraph GEN.1.11A., that the applicant should not be subject to such a condition, and they will be eligible to apply for settlement after a continuous period of at least 120 months in the UK with leave to enter granted on the basis of such entry clearance or of entry clearance granted under paragraph D-ECP.1.1. or with limited leave to remain as a partner granted under paragraph D-LTRP.1.1. or D-LTRP.1.2. (excluding in all cases any period of leave to enter or limited leave to remain as a fiancé(e) or proposed civil partner); or, where the applicant is a fiancé(e) or proposed civil partner, the applicant will be granted entry clearance for a period not exceeding 6 months, and subject to a prohibition on employment and a condition of no recourse to public funds.

Changes to the grant of leave to remain as a partner

D-LTRP.1.2. If the applicant meets the requirements in paragraph R- LTRP.1.1.(a), (b) and (d) for limited leave to remain as a partner, or paragraph GEN.3.1.(2) or GEN.3.2.(3) applies to an applicant for leave to remain as a partner, the applicant will be granted leave to remain for a period not exceeding 30 months and subject to a condition of no recourse to public funds unless the decision-maker considers, with reference to paragraph
GEN.1.11A., that the applicant should not be subject to such a condition, and they will be eligible to apply for settlement after a continuous period of at least 120 months in the UK with such leave, with limited leave to remain as a partner granted under paragraph D-LTRP.1.1., or in the UK with leave to enter granted on the basis of entry clearance as a partner granted under paragraph D-ECP.1.1. or D-ECP.1.2. (excluding in all cases any period of leave to enter or limited leave to remain as a fiancé(e) or proposed civil partner); or, if paragraph E-LTRP.1.11. applies, the applicant will be granted limited leave for a period not exceeding 6 months and subject to a condition of no recourse to public funds and a prohibition on employment.”.

Changes to the leave granted for entry clearance as a parent

D-ECPT.1.2. If paragraph GEN.3.2.(3) applies to an applicant for entry clearance as a parent, the applicant will be granted entry clearance for an initial period not exceeding 33 months, and subject to a condition of no recourse to public funds unless the decision-maker considers, with reference to paragraph GEN.1.11A., that the person should not be subject to such a condition, and they will be eligible to apply for settlement after a continuous period of at least 120 months in the UK with leave to enter granted on the basis of such entry clearance or of entry clearance granted under paragraph D- ECPT.1.1. or with limited leave to remain as a parent granted under paragraph D-LTRPT.1.1. or D-LTRPT.1.2.

Changes to the grant of leave to remain as a parent

“D-LTRPT.1.2. If the applicant meets the requirements in paragraph R- LTRPT.1.1.(a), (b) and (d) for limited leave to remain as a parent, or paragraph GEN.3.2.(3) applies to an applicant for leave to remain as a parent, the applicant will be granted leave to remain for a period not exceeding 30 months and subject to a condition of no recourse to public funds unless the decision-maker considers, with reference to paragraph GEN.1.11A., that the applicant should not be subject to such a condition, and they will be eligible to apply for settlement after a continuous period of at least 120 months in the UK with such leave, with limited leave to remain as a parent granted under paragraph D-LTRPT.1.1., or in the UK with leave to enter granted on the basis of entry clearance as a parent granted under paragraph D-ECPT.1.1. or D-ECPT.1.2.”.

Changes to the Specified Evidence

21A(1). Where paragraph GEN.3.1.(1) of Appendix FM applies, the decision-maker is required to take into account the sources of income, financial support or funds specified in sub-paragraph (2).

(2) Subject to sub-paragraphs (3) to (8), the following sources of income, financial support or funds will be taken into account (in addition to those set out in, as appropriate, paragraph E-ECP.3.2., E- LTRP.3.2., E-ECC.2.2. or E-LTRC.2.2. of Appendix FM):

(a) a credible guarantee of sustainable financial support to the applicant or their partner from a third party;

(b) credible prospective earnings from the sustainable employment or self-employment of the applicant or their partner; or

(c) any other credible and reliable source of income or funds for the applicant or their partner, which is available to them at the date of application or which will become available to them during the period of limited leave applied for.

(3) Where the applicant is a child:

(a) other references in this paragraph to “applicant” mean the “applicant’s parent” under paragraph E-ECC.1.6. or E- LTRC.1.6. of Appendix FM; and

(b) references in this paragraph to “partner” refer to the “applicant’s parent’s partner” under those paragraphs.

(4) The onus is on the applicant to satisfy the decision-maker of the genuineness, credibility and reliability of the source of income, financial support or funds relied upon, on the basis of the information and evidence provided, having regard (in particular, but without limitation) to the factors set out below.

(5) The source of income, financial support or funds must not be a loan, unless evidence submitted with the application shows that:

(a) the source is a mortgage on a residential or commercial property in the UK or overseas which at the date of application is owned by the applicant, their partner or both, or by the third party to whom sub-paragraph (2)(a) refers;

(b) the mortgage is provided by a financial institution regulated by the appropriate regulatory body for the country in which that institution is operating; and

(c) the mortgage payments are reasonably affordable by the person(s) responsible for them and are likely to remain so for the period of limited leave applied for.

(6) Any cash savings or any current financial investment or product relied upon by the applicant under sub-paragraph (2)(c) must at the date of application be in the name(s), and under the control, of the applicant, their partner or both.

(7) Any cash savings relied upon by the applicant must enable the financial requirement in paragraph E-ECP.3.1.(b), E-LTRP.3.1.(b), E- ECC.2.1.(b) or E-LTRC.2.1.(b) of Appendix FM (as applicable) to be met, except that the criteria in sub-paragraph (8)(c) apply in place of the requirements in paragraphs 11 and 11A of this Appendix.

(8) In determining the genuineness, credibility and reliability of the source of income, financial support or funds relied upon under sub- paragraph (2), the decision-maker will take into account all the information and evidence provided, and will consider (in particular):

(a) in respect of a guarantee of sustainable financial support from a third party:

(i) whether the applicant has provided verifiable documentary evidence from the third party in question of their guarantee of financial support;

(ii) whether that evidence is signed, dated and witnessed or otherwise independently verified;

(iii) whether the third party has provided sufficient evidence of their general financial situation to enable the decision-maker to assess the likelihood of the guaranteed financial support continuing for the period of limited leave applied for;

(iv) whether the third party has provided verifiable documentary evidence of the nature, extent and duration of any current or previous financial support which they have provided to the applicant or their partner;

(v) the extent to which this source of financial support is relied upon by the applicant to meet the financial requirement in paragraph E-ECP.3.1., E-LTRP.3.1., E- ECC.2.1. or E-LTRC.2.1. of Appendix FM (as applicable); and

(vi) the likelihood of a change in the third party’s financial situation or in their relationship with the applicant or the applicant’s partner during the period of limited leave applied for.

(b) in respect of prospective earnings from sustainable employment or self-employment of the applicant or their partner:

(i) whether, at the date of application, a specific offer of employment has been made, or a clear basis for self- employment exists. In either case, such employment or self-employment must be expected to commence within three months of the applicant’s arrival in the UK (if the applicant is applying for entry clearance) or within three months of the date of application (if the applicant is applying for leave to remain);

(ii) whether the applicant has provided verifiable documentary evidence of the offer of employment or the basis for self-employment, and, if so, whether that evidence:

(aa) is on the headed notepaper of the company or other organisation offering the employment, or of a company or other organisation which has agreed to purchase the goods or services of the applicant or their partner as a self-employed person;

(bb) is signed, dated and witnessed or otherwise independently verified;

(cc) includes (in respect of an offer of employment) a signed or draft contract of employment;

(dd) includes (in respect of self-employment) any of a signed or draft contract for the provision of goods or services; a signed or draft partnership or franchise agreement; an application to the appropriate authority for a licence to trade; or details of the agreed or proposed purchase or rental of business premises;

(iii) whether, in respect of an offer of employment in the UK, the applicant has provided verifiable documentary evidence:

(aa) of a relevant employment advertisement and employment application;

(bb) of the hours to be worked and the rate of gross pay, which that evidence must establish equals or exceeds the National Living Wage or the National Minimum Wage (as applicable, given the age of the person to be employed) and equals or exceeds the going rate for such work in that part of the UK; and

(cc) which enables the decision-maker to assess the reliability of the offer of employment, including in light of the total size of the workforce and the turnover (annual gross income or sales) of the relevant company or other organisation;

(iv) whether the applicant has provided verifiable documentary evidence that at the date of application, the person to be employed or self-employed is in, or has recently been in, sustained employment or self- employment of the same or a similar type, of the same or a similar level of complexity and at the same or a similar level of responsibility;

(v) whether the applicant has provided verifiable documentary evidence that the person to be employed or self-employed has relevant professional, occupational or educational qualifications and that these are recognised in the UK;

(vi) whether the applicant has provided verifiable documentary evidence that the person to be employed or self-employed has the level of English language skills such prospective employment or self-employment is likely to require;

(vii) the extent to which this source of income is relied upon by the applicant to meet the financial requirement in paragraph E-ECP.3.1., E-LTRP.3.1., E-ECC.2.1. or E- LTRC.2.1. of Appendix FM (as applicable); and

(viii) where an offer of employment is relied upon, and where the proposed employer is a family member or friend of the applicant or their partner, the likelihood of a relevant change in that relationship during the period of limited leave applied for.

(c) in respect of any other credible and reliable source of income or funds for the applicant or their partner:

(i) whether the applicant has provided verifiable documentary evidence of the source;

(ii) whether that evidence is provided by a financial institution regulated by the appropriate regulatory body for the country in which that institution is operating, and is signed, dated and witnessed or otherwise independently verified;

(iii) where the income is or the funds are based on, or derived from, ownership of an asset, whether the applicant has provided verifiable documentary evidence of its current or previous ownership by the applicant, their partner or both;

(iv) whether the applicant has provided sufficient evidence to enable the decision-maker to assess the likelihood of the source of income or funds being available to them during the period of limited leave applied for; and

(v) the extent to which this source of income or funds is relied upon by the applicant to meet the financial requirement in paragraph E-ECP.3.1., E-LTRP.3.1., E- ECC.2.1. or E-LTRC.2.1. of Appendix FM (as applicable).”.

UPPER TRIBUNAL RULING ON IMMIGRATION OF UNMARRIED PARTNERS AND APPLICATION OF SURINDER SINGH

The issue of EEA national Family members’s rights is still one of the main issues in Brexit negotiations between the UK and EU. It probably could be one of the biggest obstacles in resolving this matter. The Uk stance in this case is that an EU national would not have direct and automatic right to bring his/her family members in to the Uk after the Brexit, but need to qualify under the same RUELS AS FOR NON EU FMAILY MEMBERS (E.G. FINANCIAL THRESHOLD).

This case concerned a non-EEA unmarried partner of British citizen returning to the UK following residency in another EEA member state. In this instance the non-EEA unmarried partner was a South African citizen Ms Banger who has been in durable relationship with British citizen, Mr Rado, for some years. First of all they resided in South Africa and in 2010 moved to Netherlands as Mr Rado received a work assignment there. Ms Banger was granted a Dutch residence card as an extended family member of an EU national. Following 3 years of residence in Netherlands the couple decided to move to the UK and Ms Banger applied for a residence card under the Immigration (European Economic Area) Regulations 2006 (“EEA Regulations”) to the Home Office in the UK. The residence card application was refused on the basis that regulation 9 of the then EEA Regulations did not recognise unmarried partners as family members of British Citizens as only spouses and civil partners are recognised as such. Currently in force the Immigration (European Economic Area) Regulations 2016 reflect the same position regarding family members of British citizens.

The Upper Tribunal considered various issues related mainly to the application of principles of Surinder Singh case, subsequent case law and interplay between the Citizens Directive and EEA Regulations. Following consideration of the issues in this appeal the Upper Tribunal stayed proceedings and referred a number of questions to the Court of Justice of the European Union (“CJEU”) for preliminary ruling. The issues referred to the CJEU are as follows:
1. Whether the principles contained in the decision in Surinder Singh extend to non-EEA unmarried partners;

2. In alternative whether there is a requirement to issue or facilitate the provision of such residence authorisation by virtue of Citizens Directive;

3. Whether a decision to refuse a residence authorisation, which was not made following extensive examination of the personal circumstances of the applicant and is therefore not justified by adequate or sufficient reasons, is unlawful as being in breach of Article 3(2) of the Citizens Directive;

4. Whether a rule of national law which precludes an appeal to a court or tribunal against a decision refusing to issue a residence card to a person claiming to be an extended family member compatible with the Directive.
It will take some time for CJEU to rule on the above issues. In the meantime the current position of unmarried partners of British citizens will remain the same, i.e. that they will be refused residency documentation if they choose to rely on EEA Regulations rather than domestic UK Immigration Rules, which contain much stricter requirements. However, watch this space, this may change.

26th May 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.