There have been a number of changes to immigration law and practice recently. The key issues affecting Tier 2 sponsors are set out below:
Genuine vacancy test
From 6 November 2014, the Home Office may refuse Tier 2 applications if they believe that there is not a genuine vacancy in the UK for the migrant worker to fill.
Under the latest sponsor guidance a genuine vacancy is one which:
- requires the jobholder to perform the specific duties and responsibilities for the job and meets all of the requirements of the tier and category. If a sponsor has already assigned a Certificate of Sponsorship (“CoS”) the vacancy must be open for the duration of the CoS; and
- does not include dissimilar and/or lower-skilled duties.
The second limb of this new requirement could be problematic in certain circumstances. The SOC code entered on the CoS must be the ‘most appropriate match for the job in question’, according to the codes of practice. The SOC codes list the typical duties and responsibilities of the included occupations, but do not and cannot reflect the exact duties of all roles in all businesses in the UK.
In our experience it is common for a job description to contain some duties and responsibilities which are also detailed in SOC codes which are not considered sufficiently skilled to warrant sponsorship as well as those featured under a SOC code which would be considered sufficiently skilled. In some cases many elements of a role are not featured in any SOC codes. This new requirement could mean that sponsors will need to adjust the duties and responsibilities of their roles according to the job descriptions of the SOC codes rather than the needs of their businesses.
UK Visas and Immigration (“UKVI”) goes on to give the following examples of vacancies that are not considered to be genuine:
- one which contains an exaggerated or incorrect job description to deliberately make it appear to meet the requirements of Tier 2 and relevant sub-category when it does not;
- a job or role that does not exist which is created in order to enable a migrant to come to, or stay in the UK; or
- advertisements with requirements that are inappropriate for the job on offer, and have been tailored to exclude resident workers from being recruited.
UKVI makes it clear that this is not an exhaustive list.
This will inevitably introduce an element of subjectivity into Entry Clearance Officers’ decision making. It is also more likely now that UKVI may request additional information and/or evidence from the sponsor or the migrant to establish this requirement is met, and may refuse the migrant’s application if this is not provided within UKVI’s deadline.
The most cautious approach would be to provide with each entry clearance application qualifications and registration certificates, full evidence that the resident labour market test has been carried out and full details of the role and its requirements. At the very least, these documents should be readily available in case they are requested by UKVI.
The new guidance reiterates that sponsors must always have at least one Level 1 User in place. From 6 November 2014 new sponsors must ensure that at least one of the Level 1 Users is an employee of the sponsor to ensure that the sponsor access to the SMS and to check activity. (In the past some sponsors relied solely on legal representatives or HR consultants to act as their Level 1 User). The Home Office provides that this is also best practice for existing sponsors. Where possible, we would therefore recommend that all existing sponsors have at least one Level 1 User who is also an employee.
Please be aware that UKVI will carry out background checks on the individuals nominated to act as Key Personnel (i.e. Level 1 and Level 2 Users, the Key Contact and the Authorising Officer), including checks for bankruptcy orders and criminal convictions.
UKVI will make these checks when considering the initial sponsor application but may repeat them at any time during the life of the sponsor licence. UKVI may also carry out checks if new individuals take up Key Personnel roles. If any of these people have an unspent criminal conviction for a relevant offence (regardless of whether the sponsor has declared them or not) or have been issued with a civil penalty by UKVI, UKVI will:
- refuse to accept a person the sponsor later nominates for a Key Personnel role; and
- revoke the sponsor licence.
Therefore sponsors should do all that they can to ensure that none of the Key Personnel have any convictions.
In addition, there is now an obligation to notify UKVI of any of the following:
- if the sponsor or any of the Key Personnel have been suspended or removed from any sponsor register within the last five years; or
- if any Key Personnel have any criminal prosecutions pending; or
- if the sponsor has, or if any Key Personnel are aware that an organisation that they have been involved with in a similar role has, failed to pay VAT or any other form of excise duty.
If a sponsor licence is revoked, a sponsor usually cannot reapply for a licence for at least 12 months.
There is a new reporting obligation on sponsors. If a Tier 2 migrant obtains settlement (i.e. Indefinite Leave to Remain) this must be reported by the sponsor on the Sponsorship Management System within 10 working days.
Carrying out right to work checks
The Tier 2 sponsor guidance now expressly provides that sponsors have a duty to check that their employees have the right to work in the UK. It also provides that UKVI will take action against those who employ illegal workers and who do not undertake the correct checks.
Sponsors should therefore ensure that they are complying with the latest guidance on carrying out right to work checks as these checks changed in May 2014. In particular, checks must be carried out before the person starts work and must now be carried out again when the visa expires. It is no longer necessary to carry out the document checks every 12 months if the person has limited leave. Documents must be checked in the person’s presence and all copies of documents must be dated. Please note that if the visa/leave to remain is in an expired passport this will no longer be sufficient to establish a statutory excuse, an application must be made to transfer the leave to a new passport or biometric residence permit.
The previous Tier 2 sponsor guidance provided that, in the case of Tier 2 (General) migrants, guaranteed bonuses would count towards the total remuneration package. It also provided that allowances which are also paid to settled workers could be included. There was however no requirement that the guaranteed bonuses had to be paid to settled workers. This wording has now changed and the latest guidance makes it clear that guaranteed bonuses may now only be taken into account if they would also be paid to settled workers.
We therefore advise that guaranteed bonuses are not taken into account when calculating the total remuneration package when issuing a CoS to migrants.
Assigning Certificates of Sponsorship to migrants who are contractors or who work on client sites
Sponsors may only assign a CoS if the sponsor has full responsibility for deciding the duties, functions and outcomes or outputs of the job. If the migrant is carrying out work for a third party on the sponsor’s behalf, the migrant must be contracted by the sponsor to provide a time-bound service or project on the sponsor’s behalf. This means a service or project which has a specific end date, after which it will have ended or the service provided will no longer be operated by the sponsor or anyone else. The migrant must not be:
- an agency worker; or
- contracted to undertake an ongoing routine role or to provide an ongoing routine service for the third party, regardless of the length of any contract between the sponsor and another party.
UKVI may ask to see more client contracts to check work is project based. However, there is no guidance at present as to when the work becomes routine (rather than project based).
As a result of recent changes, if an applicant submits an application by post and UKVI deems it to be invalid UKVI may now contact the applicants to give him or her an opportunity to correct the error or omission which made the application invalid (e.g. failure to sign the form or to enclose the correct fee). Applicants must respond within 10 business days of UKVI’s letter. This is a particularly helpful change in practice especially with the proposed reduction in appeal rights.
The list of permitted activities has been expanded so as to allow individuals who are employed and based and paid overseas to come to the UK for business visits for the following purposes:
- sharing knowledge or experience relevant to, or advising on, an international project being led in the UK as an overseas scientist or researcher, provided also that the person is not carrying out research in the UK; and
- as a lawyer advising UK clients on litigation and/or international transactions provided the person is an employee at an international law firm with offices in the UK.
Quota limit reached in relation to restricted Certificates of Sponsorship
A restricted CoS is most commonly required if you wish to sponsor a new hire on a salary of less than £153,500 when that person is based overseas.
UKVI has an allocation of 1,725 restricted CoS to issue for each month. Any unused restricted CoS are rolled into the next month’s allocation.
In recent months there have been requests for more than 1,725 restricted CoS applications per month. If this trend continues it may be that not all restricted CoS applications will be granted. If insufficient restricted CoS are available in any month, UKVI will look at the number of points the migrant obtains (awarded on the basis of salary and whether the role is a shortage occupation), and those with the highest total will be allocated the restricted CoS.
For further information, please contact Head of Immigration, Kerry Garcia, on firstname.lastname@example.org