Under Tiers 2 and 5, employers must obtain a licence to employ overseas nationals. Under Tier 4, educational establishments will be required to obtain a licence so that overseas nationals can undertake courses with them.
OVERSEAS MIGRANTS
Every migrant coming to the UK under sponsorship must obtain entry clearance abroad before their arrival in the UK. One exception to this is non-visa nationals, coming to the UK for less than three months, under the Tier 5 creative and sporting category (details of visa nationals are provided in Appendix 1 – visa requirements for the UK, published on the Home Office website).
Under Tiers 2 and 5, each migrant must obtain a certificate of sponsorship (a ‘virtual’ certificate issued by their licensed UK employer) to make their entry clearance application. Sponsorship is not required for settled workers, such as:
- UK/European Economic Area nationals.
- British overseas territories citizens (except from sovereign base areas in Cyprus). Commonwealth citizens are allowed to enter and remain in the UK on the basis of having a grandparent born in the UK.
- Nationals given settled status within the meaning of the Immigration Act 1971, as amended by the Immigration and Asylum Act 1999 and the Nationality Immigration and Asylum Act 2002.
- Nationals of A8 (the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland, Slovakia and Slovenia) and A2 (Bulgaria and Romania) countries, who must still register under the current appropriate scheme.
UK Employers should have in place a system where they monitor the status of their employees in the UK (including settled workers). They should request sight of all employees’ passports, retaining a copy of their passports or travel documents, confirming their ability to work in the UK.
UK EMPLOYERS
To use the sponsorship management system (an online tool enabling employers to issue certificates of sponsorship) the UK employer must provide details of individuals who will take responsibility for the company under the PBS.
An authorising officer must be appointed. They must be a member of staff based in the UK. They will be responsible for the activities of all users of the sponsorship management system, including employees of the organisation and their legal representatives. If the authorising officer wants access to the sponsorship management system, they must register themselves as either a Level 1 or Level 2 user.
A key contact must be appointed. This may be a UK-based member of staff at the employing company, or their legal representative (also based in the UK). They will be the main point of contact between the sponsoring organisation and the UK Border Agency (UKBA).
Details of a Level 1 and a Level 2 user must be given. They may either be an employee of the UK company or a nominated legal representative (based in the UK). Both Level 1 and Level 2 users will have access to the sponsorship management system. At the moment, the UKBA has designed the sponsorship management system so there can only be one Level 1 user, but with no limit on the maximum number of Level 2 users. However, the UKBA has indicated that it will be reviewing this in the coming months, so details may change.
Both Level 1 and Level 2 users will be able to assign a certificate of sponsorship, report migrant activity and track migrant applications. Only a Level 1 user will be able to provide other users with access to the sponsorship management system, update organisational details, notify the UKBA of a change in the circumstances of the sponsor, update the sponsor’s address details, apply for a licence renewal, and request or withdraw certificates of sponsorship.
When issuing a certificate of sponsorship to a migrant, the employer is certifying that the migrant, to the best of the sponsor’s knowledge and belief, meets the requirements of the tier or category of the PBS under which the certificate is issued, and that the migrant is likely to comply with the conditions of their leave in the UK. The employer must ensure that the migrant has the appropriate registration and/or professional accreditation (where legally required). They are also under a duty not to employ a migrant if the conditions of their leave in the UK (or the migrant’s lack of leave in the UK) mean they are not allowed to work, and to stop employment of any migrant who ceases, for any reason, to be entitled to undertake work for them. A sponsor’s duties under the PBS will begin on the date their sponsor licence is issued. Where they relate to a migrant, duties will cease either:
- when the sponsor notifies the UKBA that the migrant’s employment or course of study with it has ceased;
- when the migrant leaves the UK and their entry clearance or leave to remain lapses;
- when the migrant is granted further leave to remain with a different sponsor or in another immigration category not requiring sponsorship; or
- if the sponsor’s licence is withdrawn.
Under the PBS, the UKBA will carry out compliance checks before making a decision on an application for a sponsor licence. Compliance checks can also be made after a decision on a licence has been made, to ensure that the information held by the UKBA is accurate. Checks will be made by an officer at the UKBA, who will usually contact the sponsor before attending their premises, but may choose to attend unannounced. The sponsor will be expected to co-operate with the visiting officer’s requests, which may include speaking to migrant workers, as well as colleagues and managers involved in the recruitment of migrant workers.
REPORTING DUTIES |
|
EVENT |
REPORT |
| Migrant does not turn up for their first day of work or fails to enrol on their course at the expected time | Within ten working days. Provide any reason given by migrant for their non-attendance or non-enrolment |
| Migrant absent from work or study for more than ten working days without sponsor’s reasonably granted permission | Within ten working days of tenth day of absence |
| Migrant discontinues their studies or their contract of employment or registration is terminated (including where migrant is dismissed or resigns) | Within ten working days of the event. If known, provide details of any new employer or institution the migrant has joined |
| If the sponsor stops sponsoring a migrant for any other reason – eg, the migrant moves into an immigration route that does not require a sponsor | Within ten working days |
| Any significant changes in a migrant’s circumstances – eg, change of job or salary (but not job title or annual pay rise), or if the duration of course shortens | Within ten working days |
| Any suspicions that the migrant is breaching the conditions of their leave in the UK | Within ten working days |
| Any significant change in the sponsor’s circumstances – eg sponsor ceases trading or becomes insolvent, substantially changes the nature of its business, is involved in a merger, or is taken over | Within ten working days |
REPORTING DUTIES
Details of the events sponsors must report to the UKBA are listed in the table to the left. Sponsors must also be able to provide details of any third party or intermediary (in the UK or abroad) that assisted with the recruitment of migrant employees or students. Any information suggesting that the migrant may be engaging in terrorism or other criminal activity must be reported to the police.
RECORD-KEEPING DUTIES
A sponsor must retain copies (either on paper or in an electronic format) of certain documents under the points-based system for specified periods of time. The tables highlight some of the requirements detailed in the guidance notes.
DOCUMENTS TO BE RETAINED |
|
DOCUMENT |
DURATION |
| All documents submitted as part of the application for a sponsor licence | Duration of licence |
| FOR EACH MIGRANT EMPLOYED | |
| Copy of migrant’s passport, including page showing stamp confirming their leave in the UK, or their immigration status document showing that the migrant is entitled to work for the sponsor | Two years after migrant is no longer sponsored |
| Copy of migrant’s UK biometric card. From November 2008 UK biometric identity cards will start to be issued to foreign nationals. Further information concerning this should be released by the Home Office and/or Identity and Passport Service in the coming months | Two years after migrant is no longer sponsored |
| Copy of migrant’s National Insurance number (unless migrant is exempt from requiring one) | Two years after migrant is no longer sponsored |
| History of migrant’s contact details (UK residential address, telephone number, mobile phone number). Must be updated regularly. Since the history is required, when the details are updated the previous information should not be deleted or destroyed | Duration of sponsorship |
| Record of the migrant’s absence (Tiers 2 and 5) | Duration of sponsorship |
| Copy of the contract of employment | Duration of sponsorship |
| Any other document specified in the relevant code of practice. Codes of practice for each tier will be published on the Home Office’s website. The relevant code of practice must be referred to before issuing a certificate of sponsorship | As detailed in the relevant code of practice |
| RESIDENT LABOUR MARKET TEST (TIER 2 AND TIER 5) | |
| For recruitment by advertisements in print A copy of the job advertisement as it appeared in national newspaper or professional journal, showing title of publication and date(s); and/or, where applicable, a copy of a letter or invoice proving that the advertisement was placed. The invoice must be kept when the advertisement does not show the name of the organisation that placed it (the employing company) | Duration of sponsorship |
| For recruitment by advertisements on the internet (whether company’s own website or otherwise) One to two weeks of screen prints, clearly showing where the job was advertised, the contents of the advert, the date and the URL; and/or, where applicable, a copy of a letter or invoice proving that the advertisement was placed | Duration of sponsorship |
| For recruitment through Jobcentre Plus A copy of the Jobcentre Plus letter confirming details of the contents of advertisement, the dates placed and the vacancy reference number | Duration of sponsorship |
| For recruitment by headhunters or a recruitment agency A copy of the contract between the headhunter or recruitment agency and the sponsoring organisation; and/or a copy of the brief and/or report produced, a copy of the invoice, copies of any adverts placed (showing title of publication and dates), and a copy of advert as it appeared | Duration of sponsorship |
| For recruitment by ‘milk rounds’ A letter from each university on their headed paper confirming the milk round dates and method used – ie presentation and/or interview method | Duration of sponsorship |
| Migrant switching from Tier 1 post-study category Evidence of migrant working at the company for at least six months before applying for the switch – ie, pay-slips or company accounts that clearly show a wage being paid to the migrant | Duration of sponsorship |
| Intra-company transfers. Evidence of migrant working at the sponsor’s company overseas for at least six months before application – ie pay-slips or company accounts showing a wage being paid to the migrant. | Duration of sponsorship |
| DOCUMENTS FROM RECRUITMENT PROCESS | |
| E-mails, CVs, application forms and so on, showing the applicant’s name and address | Duration of sponsorship |
| Documents showing: the names and number of people applying for post, the names and number of applicants shortlisted for interview, notes from interviews conducted, and reasons why each EEA national who applied was not employed | Duration of sponsorship |
| SKILL-LEVEL DOCUMENTS | |
| Copies of qualifications – eg, degree certificates | Duration of sponsorship |
| Copies of registration documents, professional accreditation documents, and/or confirmation letters that the migrant requires in order to do their job | Duration of sponsorship |
| Copy of governing body endorsement specific to migrant (where appropriate) | Duration of sponsorship |
| Any document specified in the relevant code of practice | Duration of sponsorship |
For more information please visit www.magrath.co.uk.
By Tracey Morgan, paralegal, Magrath LLP. E-mail: tracey.morgan@magrath.co.uk.