Tier 2: Recent changes to the Immigration Rules and the Tier 2 sponsor guidance

UK Visas and Immigration (“UKVI”) recently revised the Immigration Rules and published new Sponsor Guidance for Tier 2 and 5 sponsors.  There are a number of changes which affect Tier 2 sponsors.

Details of the main changes are set out below:

Entry clearance

  • Entry clearance for Tier 2 migrants will now be granted on whichever of the following is the latest date:
    • The date 14 days before the start date of the migrant’s employment in the UK as stated on the certificate of sponsorship;
    • 7 days before the migrant’s intended date of travel to the UK as stated on the visa application form as long as this date is not more than 14 days after the employment start date stated on the certificate of sponsorship; or
    • The date entry clearance is granted.

Applicants and sponsors should therefore consider carefully which dates to state on the visa application form and certificate of sponsorship. 

Shortage occupation roles

  • The list of shortage occupations now includes nurses and, in certain limited circumstances where the sponsor is a qualifying company, four specific digital technology roles. These roles are IT product manager, data scientist, senior developer and cyber security specialist.

Applications for restricted certificates of sponsorship

  • There have been amendments to the attributes and therefore the way in which restricted certificates of sponsorship are allocated so that a minimum of 21 points now needs to be obtained, rather than 32.  This applies to all applications for restricted certificates of sponsorship submitted on or after 19 November 2015

Indefinite leave to remain

  • Applicants who apply on or after 6 April 2016 must earn at least £35,000 to be eligible for indefinite leave to remain.  There are a few exceptions, including where the applicant is undertaking a shortage occupation role or certain PhD level roles.
  • Sponsors are now required to confirm in writing that the migrant who is applying for indefinite leave to remain is still required for the employment in question for the foreseeable future and that the salary payable will continue for the foreseeable future.  This will impact migrants who have been given notice of termination of employment.
  • When a sponsored migrant applies for indefinite leave to remain at a time when their sponsor licence is suspended that indefinite leave to remain application will be put on hold until a decision is taken on the licence and indefinite leave to remain will be refused if the licence is revoked.

Sponsor duties

Key Personnel and other responsible persons

  • The revised sponsor guidance makes it clear that the Authorising Officer is responsible for the activities of all Sponsor Management System users and so must have a system in place to check these activities.  UKVI now recommends that, as a minimum, the Authorising Officer checks the certificates of sponsorship assigned to Tier 2 migrants on a monthly basis.
  • UKVI may now undertake checks on people who are not directors or Key Personnel but who are in positions of responsibility in the sponsor company.  This may include checks for previous bankruptcy orders, prohibitions on being a company director or whether people have previously been involved in a company which has had its sponsor licence revoked.   UKVI may refuse a sponsor licence application or revoke a sponsor licence on the basis of the results of the checks.  Alternatively it may grant a licence, but with conditions such as a limitation on the sponsor’s certificate of sponsorship allocation or a request for alternative Key Personnel.
  • Sponsors must now provide the National Insurance number of each of their Key Personnel when applying for a licence and when changing Key Personnel or adding new ones.

Record keeping obligations

  • There is a new general requirement whereby sponsors must keep references as evidence of the Tier 2 migrant’s experience if the migrant was appointed on the basis of that experience.
  • A copy of the migrant’s Disclosure Barring Service (“DBS”) check (where required) must now be kept on file.
  • Sponsors must keep the following on file for all sponsored migrants (not just those for whom a resident labour market test must be carried out):
    • a detailed and specific job description outlining the duties and responsibilities of the post which must include the skills, qualifications and experience required for the post; and
    • copies of any qualifications the migrant holds to confirm skill level, for example, degree certificate, HND etc and/or documents that show the migrant had the skills and experience to do the job, e.g. references from a previous employer or other evidence of experience or qualifications.
  • Where a vacancy has been advertised on Jobcentre Plus or Jobcentre online, the sponsor must keep a screenshot of the advert from the relevant government website containing the specified details which is taken on the day that the vacancy is first advertised

Reporting obligations

  • If any third parties or intermediaries assisted with the recruitment of a Tier 2 migrant this must now be notified to UKVI at the time that the certificate of sponsorship is assigned.
  • The guidance has clarified that, where an exemption to the current Tier 2 skill levels applies, sponsors must add a sponsor note to confirm this when assigning a certificate of sponsorship, and explain why the migrant is eligible for the exemption.

Issuing a certificate of sponsorship to family members

  • A Level 1 or Level 2 User may not allocate a certificate of sponsorship to their family members. The definition of family member now includes step-brother, step-sister, nephew, niece, cousin, father-in-law, mother-in-law, brother-in-law, sister-in-law, son-in-law and daughter-in-law.
  • Further, the sponsor must inform UKVI (by way of a sponsor note) if it assigns a certificate of sponsorship to a person who is a family member of anyone else in the sponsor organisation where the sponsor is a small or medium-sized business or if it is aware of a family relationship between anyone else in the business where the sponsor is a large organisation. 

Other obligations

  • In order to hold a sponsor licence DBS checks must be undertaken on all workers who are undertaking a regulated activity in relation to children and failure to do so will result in a mandatory refusal of a licence application.  Sponsored migrants must have a DBS check where this is required for the role and a copy of this must be kept on the migrant’s file.
  • If a sponsor wishes to add new tiers to its licence the Authorising Officer must approve this and the Level 1 User must retain the evidence of that approval

Genuineness test

  • The guidance clarifies that UKVI will assess a sponsor’s ability to provide genuine employment as part of a sponsor licence application.
  • UKVI will also consider whether the role is a genuine vacancy.  If UKVI refuses an entry clearance or leave to remain application because it does not consider the role to be a genuine vacancy, it may suspend the sponsor’s licence while it investigates the issue.

Renewal and applying for a new licence

  • If a sponsor fails to renew its sponsor licence the 20 day grace period to apply for a licence after the expiry date has now been removed.   Tier 2 migrants’ leave may now be curtailed as soon as the licence expires.  It is therefore key that sponsors apply to renew their licence before the licence is due to expire.
  • The cooling off period for reapplying for a sponsor licence is now 12 months where a company has previously had a licence revoked.   The 12 month cooling off period now also applies where a company surrendered a licence after being notified that UKVI was taking action against it.
  • A sponsor licence application will also be refused if it is made within 12 months of the date a civil penalty fine was fully paid.
  • New guidance has been provided on when a change in ownership triggers a requirement to apply for a new sponsor licence but this guidance is still quite ambiguous and specific advice should be sought if there is a change in ownership or a TUPE transfer.

Other changes

  • Provisions for Tier 2 migrants relating to maternity, adoption and paternity leave have been expanded to include shared parental leave.
  • UKVI has clarified that where it believes that a business has breached its sponsorship duties, it will consider the nature of the suspected breach. This means that where the breach is a minor issue, the sponsor is willing and able to correct it, and poses no continuing threat to immigration control, UKVI will in most cases support the sponsor in making the relevant improvements by issuing an action plan, which sets out the steps the sponsor must take in order to retain its licence.   However, where there is a serious breach indicating a significant or systematic failing, the sponsor no longer meets the eligibility or suitability requirements for holding a licence, or UKVI considers that the sponsor constitutes a serious threat to immigration control; UKVI may decide either to suspend its licence and investigate further or to revoke the licence without prior suspension.  UKVI may suspend the licence and investigate further when there has been sustained non-compliance over a period of time, or where there have been a number of breaches which are minor in themselves but – taken together – indicate a serious or systematic failing. If UKVI has grounds to believe that the sponsor constitutes a serious threat to immigration control it may revoke the licence without prior suspension.
  • A new sanction has been introduced whereby the certificate of sponsorship allocation numbers can be removed as well as reduced
  • UKVI may refer information obtained by it about a sponsor to HMRC, DWP and/or the Credit Industry Fraud Avoidance System (CIFAS) to prevent fraud or criminal activity or to help them carry out their functions.
  • The guidance confirms that a certificate of sponsorship must be issued within 6 months of the date the job was first advertised, where this is relevant.
  • UKVI may take photographs during an audit or compliance visit.

If you would like to discuss any of the above, please do not hesitate to get in touch with your usual Stevens & Bolton contact or email kerry.garcia@stevens-bolton.com

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Kerry Garcia

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