As the New Year looms, many business owners will be thinking about their staffing levels and how to ensure they have the talent needed to meet their 2018 business objectives. If you already have a Tier 2 or 5 Sponsor Licence, this article will tell you all you need to know about applying for and issuing Certificates of Sponsorship (CoS).
Given the responsibilities entailed with having a Sponsor Licence, it should come as no surprise that applying for and issuing a CoS requires adherence to several compliance policies and procedures. At OTS Solicitors, our London-based immigration solicitors can manage the process of obtaining CoS on your behalf, giving you confidence that your organisation is fully compliant with Home Office rules, and your Sponsor Licence will maintain its A-rating.
The immigration Skills Charge
Before discussing the details of CoS, employers need to be aware of the immigration Skills Charge which came into effect on 6th April 2017. If you employ a non-EEA migrant, you will need to pay £1,000 per sponsored employee, per year of sponsorship.
The £1,000 fee applies to medium and large businesses. However, for smaller businesses as well as educational, charitable and other similar institutions, a concession will be granted reducing the immigration Skills Charge to £364.
Additionally, if you are recruiting for PhD level occupation, the immigration Skills Charge will not apply.
The immigration Skills Charge is designed to discourage employers from looking outside the UK when recruiting talent and instead to invest in “training British staff”. Employers and HR directors should also be aware that the Conservative Party election manifesto (used during the June 2017 election) promised to increase the immigration Skills Charge to £2,000 per employee, per year of sponsorship. As at the time of writing, this had yet to eventuate but it may come into play in 2018.
Applying for a CoS
Once you have made a job offer to a non-EEA national, you must apply for a CoS, assuming assumes you already have a UK Sponsor Licence with an A-rating and have conducted a Resident Labour Market Test. The potential employee can only apply for their Tier 2 (General) visa once a CoS has been granted.
There are two types of CoS; restricted and unrestricted.
A sponsor must apply to the Home Office for a 'restricted' CoS when a potential non-EEA national employee is applying for:
- Leave to Remain and has or was last granted leave as the partner of a Tier 4 (General) migrant
- entry clearance and earns less than £159,600 (all salary ranges are correct as of 27th December 2017)
A restricted CoS is subject to an annual quota based on the financial year, which is split up into separate provisional monthly allocations. Where the potential employee is applying for Leave to Remain or would earn more than £155,300, the quota does not apply.
You may apply for an unrestricted CoS if the non-EEA migrant you wish to employ:
- will earn more than £159,600
- is switching to a Tier 2 (General) visa from another eligible immigration category
- is already working for you and you need to apply for an extension of their leave
There are no monthly allocation quotas for unrestricted CoS; however, you will need to apply for these on an annual basis, giving an estimate as to how many you will need for the coming year.
The procedure for applying for a CoS
The general application procedure for a CoS is as follows:
- the sponsor checks that the role will meet the relevant eligibility criteria; in particular skills and salary levels
- the sponsor undertakes an appropriate RLMT if required and not carried out already
- the sponsor applies for a restricted CoS if relevant and required, or an unrestricted CoS if the relevant and current allocation has run out
- the sponsor issues ('assigns') a CoS, if still eligible and a restricted CoS is granted, or an unrestricted CoS is available, and
- the potential employee applies for entry clearance or Leave to Remain
The minimum salary or ‘appropriate rate’
In most situations, you will be required to offer a minimum salary of £30,000 per year or the ‘appropriate rate’ for the position offered, whichever is higher, to obtain a CoS.
You can offer a lower salary if:
- the CoS was first assigned to the Tier 2 migrant before 24th November 2016
- the position is for a medical radiographer, nurse, paramedic or secondary school teacher in some subjects
- the person you are employing will work as a pre-registration nurse or midwife
The minimum salary or appropriate rate is the 'actual gross salary package', including any acceptable allowances and tax paid by the sponsor in the UK and/or overseas. Where any salary or allowances are paid abroad, the amount(s) in foreign currency should be converted to a pound sterling figure as at the date of assigning the CoS. The figure cannot include overtime pay.
The ‘genuine vacancy’ test
The Sponsor Guidance states that to be granted a CoS, employers or HR directors will need to show the position being filled by the non-EEA employee is a ‘genuine vacancy’.
In their policy guidance, the Home Office defines a genuine vacancy as one which:
a) requires the employee to perform the precise duties and responsibilities of the job and meets all the necessities of the tier and category, and
b) does not include unrelated and/or lower-skilled responsibilities
The Home Office can request that you provide supplementary information and evidence if they suspect the role you wish to fill with a non-EEA applicant is not genuine. At OTS Solicitors, because we run the process of obtaining a CoS for you from start to finish, you can rest assured that all elements of the ‘genuine vacancy’ test will be met in the initial submissions.
Assigning a CoS is essentially the final step in the Sponsor Licence process (aside from ongoing duties and responsibilities, including the all-important ‘right to work’ checks). It is fortunate that in the UK, experienced immigration lawyers can manage the process from start to finish on clients’ behalf, providing them with the best advice. The management duties which can be overseen by an immigration solicitor include:
- applying for the Sponsor Licence
- advising and managing compliance with Home Office rules and regulations
- running the Resident Labour Market test
- applying for the CoS
- advising the potential non-EEA employee on obtaining entry clearance
By entrusting the Sponsor Licence process to the team at OTS Solicitors, you can be confident that your organisation can recruit the people it needs to continue to grow and meet customer expectations throughout 2018 and beyond.
OTS Solicitors is one of the most respected immigration law firms in London and is a Legal 500 leading firm. By making an appointment with one of our Business Immigration solicitors, you can be assured of receiving some of the best legal advice available in the UK today. Contact us on 0203 959 9123 to speak to one of our immigration consultants.
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Posted on: Wednesday, 27 December, 2017