Sponsor Licence Holders’ Duty To ‘Comply With The Law’
Employers and HR directors of businesses that hold a UK Sponsor Licence have many duties and responsibilities set out by the home office. The broadest of these is to ‘comply with UK law’.
Of course, all employers, indeed all citizens are compelled to comply with the laws of the country. However, unlike other employers, if a UK Sponsor Licence holder is found not in compliance with UK laws, they may have their licence downgraded, suspended, or revoked.
Examples of laws Tier 2 and 5 Sponsor Licence holders must comply with
Sponsor Licence holders’ duties and responsibilities are contained in the Tiers 2 and 5: guidance for sponsors (SG).
The main responsibilities under the SG section, ‘complying with the law’, that HR directors and employers who are sponsoring Tier 2 and 5 employees must be aware of, include the following:
Sponsor Licence holders must make sure they fully comply with UK employment law. This includes (but is not limited to), the following:
- ensuring your organisation adheres to the statutory rights granted to employees. These include (but again, not limited to); being paid the National Minimum Wage, holiday pay, maternity, and paternity leave, and being allowed a trade union representative to attend a disciplinary hearing with you.
- complying with the Equality Act 2010 and not discriminating on the grounds of the nine protected characteristics.
- keeping employees’ safe by complying with the principles of the Health and Safety At Work etc. Act 1974.
- understanding and working within obligations stated in the Transfer of Undertakings (Protection of Employment) Regulations 2006 as amended by the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014" (TUPE), if the business is transferred.
Immigration law
UK Sponsor Licence holders must ensure that when they issue a Certificate of Sponsorship for a Tier 2 (General) Visa (or any other category), it is to a migrant who is “appropriately qualified, registered or experienced to do the job, or in respect of a Tier 2 (General) migrant, will be, by the time they begin the job
Employers and/or HR directors are not permitted to assign a Certificate of Sponsorship where there is no genuine vacancy. The SG defines a genuine vacancy as one that “requires the job holder to perform the specific duties and responsibilities for the job and meets all of the requirements of the tier and category and does not include dissimilar and/or lower-skilled duties.” In addition, the employer needs to undertake a correctly run Resident Labour Market Test if the position they are issuing the Certificate of Sponsorship for is not on the Shortage Occupation List. An experienced Immigration lawyer can help you run the best Resident Labour Market Test, ensuring you are compliant with the Home Office procedure.
Planning law
The SG states that an employer must “hold suitable planning permission or Local Planning Authority consent to run their type/class of business at their trading address (where this is a Local Authority requirement).”
You will require planning permission if you wish to:
- build something new
- make a major change to your building, e.g. building an extension
- change the use of your building
Under the following circumstances, planning permission may not be required for building projects as the projects have ‘permitted development rights.’ Examples include:
- industrial premises and warehouses – although certain limits and conditions may apply
- some outdoor signs and advertisements – however, there are special rules surrounding the use of these
- demolition – however, approval to demolish must be obtained from your local planning authority
Other projects might not need planning permission, e.g. projects that will have no impact on your neighbours or the environment. An experienced solicitor can provide you with the best advice and how it will impact on any Immigration law and Sponsor Licence requirements.
Food businesses
If you are running a food business, you need to be registered with or approved by the relevant food authority to comply with the SG.
Most food businesses, including catering businesses run from home and mobile or temporary premises, such as market stalls and vans are required to be registered. Registration with the environmental health service at your local authority needs to be done 28 days before you open for business.
All premises where food operations are carried out must be registered.
If you make, prepare, or handle food that comes from animals, for example, meat or dairy products, other than for direct sale to the consumer, your premises may need to be approved by the council before you can undertake the activity. A council officer will examine your premises personally and alert you to any reasons why you may not gain approval so you can correct them.
Disclosure and Barring Service (DBS) Checks
UK Sponsor Licence holders have a duty to only employ a migrant who has had a Disclosure and Barring Service (DBS) check, where this is a requirement for the role.
A DBS check, formally known as a Criminal Records Bureau (CRB) check is required for anyone offered a position in some professions, including solicitors, teachers, accountants, and healthcare professionals. It identifies if the person you are planning to employ has a criminal record.
Concluding comments
Keeping abreast of the compliance obligations that come with holding a UK Sponsor Licence can be time-consuming and put considerable pressure on SMEs.
The best way to handle your UK Sponsor Licence duties and responsibilities is to instruct a top London Immigration law firm to manage the entire process for you. Not only can they organise and submit your application for a Sponsor Licence, but they can also issue Certificates of Sponsorship for Tier 2 and 5 visas and input the required information into the Sponsor Management System (SMS) on your behalf.
This allows you the freedom to concentrate on growing your organisation, confident in the knowledge that every aspect of your UK Sponsor Licence duties and responsibilities are being managed by a professional. And if the Home Office does visit your premises, either following prior notification or unannounced, you can have peace of mind that your records are up to date and your business is in full compliance.
OTS Solicitors is one of the most respected Immigration law firms in London. By making an appointment with one of our Immigration solicitors, you can be assured of receiving some of the best legal advice available in the UK today. We can assist you with all aspects of Sponsor Licence applications, compliance and renewals.
If you wish to discuss any of the points raised in this blog, please phone our London office on 0203 959 9123