New changes to the Tier 2 Policy Guidance were issued on 6 November 2014. All Tier 2 sponsors must ensure that they are aware of these changes and comply with the guidance at all times.
Who is the Tier 2 Policy Guidance for?
The Tier 2 Policy Guidance is specific to organisations who either want to apply for a sponsor licence on or after 6 November 2014 or who already have been granted a sponsor licence under Tier 2, to sponsor migrants working in the UK.
The Tier 2 policy guidance sets out:
- What is expected from licence holders;
- The processes they must follow when sponsoring a migrant; and
- How they must comply with all of the duties and responsibilities associated with being a licenced sponsor.
What happens if I don’t comply with the Guidance?
You have a responsibility as a Tier 2 sponsor licence holder to read and keep up-to-date with the Tier 2 policy guidance. If a Tier 2 sponsor licence holder does not comply with their duties; has knowingly provided false statements or false information; has not provided information that they have held when required to do so; or if the individuals being sponsored under their licence pose a threat to the system, then UK Visas and Immigration (UKVI) will take action against you. This may either:
- Revoke your sponsor licence and you will not be able to make another sponsor licence application until the cooling off period has passed (either 6 months, 12 months or 5 years, depending on the reason for revocation); or
- Downgrade your licence from an A-rating to a B-rating. If your licence is downgraded, then you won’t be able to assign any Certificates of Sponsorship (COS) until you have demonstrated your commitment to making improvements. This means signing up to the measures set out in the action plan and ensuring that you have paid the action plan fee.
What are the changes to the Guidance for Tier 2 licence holders?
- Information provided at the time of application: UKVI may use the information you provided to them at the point of application for a licence and at any time throughout the period of your licence.
- A re-cap on what UKVI will consider when granting your licence – UKVI will look at:
- Are you a genuine organisation operating in the UK;
- Are you honest, dependable and reliable;
- Are you capable of carrying out your sponsor duties; and
- If you are applying under Tier 2 (General), they will check to see whether you can offer genuine employment that meets the Tier 2 (General) skill level and appropriate rates of pay.
- UKVI may take action against you – They will do so if they have reason to believe that you pose any risk to immigration control. If they believe that you have knowingly provided false statements or false information, or have failed to comply with your duties, then they can suspend or revoke your licence.
- A concession allowing a sponsor licence applicant to provide missing documents from an application – If you have submitted a sponsor licence application and there are any documents in Appendix A (other than mandatory documents) missing from your application, or if they require further documents, then instead of refusing your application, UKVI will contact you by email and give you 5 working days to send the information or documents to them.
- Level 1 user – You must always have one Level 1 user in place. From 6 November 2014, you must have at least 1 employee as a level 1 user, to ensure that you have access to the Sponsor Management System (SMS), to check activity. This is also best practice for existing sponsors.
- Making checks on employees or other people involved in the running of your business – UKVI may make checks on employees or key personnel (Authorising Officer, Level 1 user, or Key Contact), against their databases and the police national computer before and during the lifetime of your licence. If any of the aforementioned personnel have unspent criminal convictions for a relevant offence or have been issued with any civil penalties, then UKVI may refuse your application or revoke your licence.
- Suitability criteria – When making a sponsor licence application, you mustinform UKVI with a covering letter, if any of the following apply to you:
- You have been suspended or removed from the sponsor register within the last 5 years;
- You have any criminal prosecutions pending; or
- You have, or you are aware that an organisation you have been previously been involved with in a similar role has, failed to pay VAT or any other form of excise duty.
- Cooling off periods – There are different cooling off periods (6 months, 12 months or 5 years) which must be adhered to before making another sponsor licence application. The relevant time period will depend on whether your licence has been refused or revoked and the reason(s) why.
- If your migrant employee gains Indefinite Leave to Remain (ILR) in the UK – If any of your migrant workers obtain ILR whilst being sponsored by you, then you must report this to UKVI within 10 working days of becoming aware of the change.
- Complying with the law – You must only employ migrants who are appropriately qualified or registered to do the job, and there must be a genuine vacancy.
- Sanctions for employing illegal workers –Your licence may be revoked; you may face a civil penalty for up to £20,000 for each illegal worker; you may be prosecuted (up to two years imprisonment and an unlimited fine) for possessing or improperly obtaining any false identity documents; you may be prosecuted (up to 14 years in prison and an unlimited fine) for knowingly employing an illegal migrant, facilitating or trafficking migrants; and you may be disqualified from acting as a company director. UKVI may also inform other bodies and other relevant government organisations if they wish to do so.
- Tier 2 migrant’s salaries – All payments made to migrants that you sponsor under Tier 2 must be made into their bank accounts in the UK or overseas and must not be paid in cash.
- Tier 2 migrant’s allowances – In addition to basic pay, the salary allowance on the Certificate of Sponsorship (COS), can include guaranteed bonuses and allowances (such as London waiting or accommodation). Except in the case of allowances for Tier 2 ICT migrants to cover the additional cost of living in the UK, such bonuses and/or allowances may only be included if they were to be paid to a settled worker.
- Ebola crisis – where a doctor is taking unpaid leave with your agreement to assist with the Ebola crisis, then you may continue to sponsor them for up to six months per year on unpaid leave. You should use the SMS to make the relevant update.
- Agency workers and migrants working on third party contracts – where the migrant is carrying out work for a third party on your behalf; they must be contracted by you to provide a time-bound service or project on your 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 you or anyone else.
Next Steps
If you are not sure whether you are meeting any of the Tier 2 sponsor requirements or if you need assistance with any of the above, then Redfern Legal can help. We have trained expert lawyers who can provide you with tailored assistance to suit your needs. We offer a sponsor licence audit package at a highly competitive rate, which includes a detailed Immigration HR policy booklet; reviewing your current HR systems in place and ensuring that they are compliant; training the Authorising Officer; attending your Immigration Audit and assisting with any Post Audit Actions.
Amy Sarraff
