A Quick Guide to Complying with UK Tier 2 and 5 Visa Sponsor Obligations

- By Teni Shahiean of OTS Solicitors

Many employers are completely unaware of the responsibility they take on when they recruit workers from outside the EEA. If you require skilled foreign workers to further grow your business, you need to understand the obligations the Government places on employers, and the evidence you need to provide, (sometimes without warning) to prove compliance.

Therefore, we have created this quick Question and Answer guide to assist employers and HR managers meet their compliance obligations so they can hire and retain the workforce they need to succeed.

What are the specific sponsor obligations I need to be aware of?

To have obtained your Sponsorship Licence you would need to have provided details of the person or persons who would fulfil the Immigration compliance roles required by the UK Border Agency for your organisation to retain its licence.

The responsibilities of a sponsor fall into roughly two categories:

• Record-keeping duties
• Reporting duties

Record-keeping duties

You need to keep records and make available on request:

- the sponsored migrant’s passport, worker authorisation (Purple Registration Certificate) or UK Immigration status document and biometric residence permit (if available)

- any documents relating to your sponsored migrants or the running of your organisation that may be considered relevant to assessing your compliance with your duties as a sponsor; eg information regarding the recruitment process

- a letter of consent from a parent or guardian, (if the sponsored migrant is under 18 years old)

Reporting duties

You must report certain information or events to us using the Sponsor Management System (SMS), within any time limit set.

Information which must be reported includes:

- if the sponsored migrant fails to show up for his or her first day at work

- if the migrant is dismissed or leaves his or her position before the Certificate of Sponsorship runs out

- if you stop sponsoring the migrant for any other reason

- the sponsored migrant’s position changes; ie they receive a promotion or a salary increase

- if you sell your business, become insolvent or have some other change in circumstances that affects the migrants position

- the migrant’s location of work changes

If you suspect your sponsored employee is engaged in terrorist or criminal activities, you must report this to the police.

How will the UK Border Agency know I am complying with my duties as a Sponsor?

Immigration officers have the power to visit workplaces of sponsored migrant workers, to ensure that the information provided in the application for a Sponsorship Licence is accurate and that the employers are complying with the duties and responsibilities of a licensed sponsor.

You may or may not receive notification of these visits.

What will happen if I fail to comply with my sponsorship duties?

Much depends on the severity of the breach. If you have forgotten to inform the UK Border Agency that your sponsored worker received a promotion or have failed to keep a minor record, then it is likely you will be simply told to amend the situation and nothing more will be said.

However, if a serious breach is committed, or your organisation continues to violate its sponsorship duties, your Sponsorship Licence may be downgraded to a B-rating, suspended or even revoked.

Fines may also be issued. In 2012, supermarket giant Tesco was fined £115,000 for employing foreign students who broke the conditions of their visas.

Are there penalties for recruiting illegal migrants to work in my organisation?

The penalties for recruiting illegal migrants can be severe. Depending on the offence, you may face a fine of up to £20,000 for every illegal worker, through to 14 years’ imprisonment and an unlimited fine if you are found guilty of trafficking. You can also be disqualified from acting as a company director.

What happens if I am downgraded from an A rating to a B rating?

If following an inspection, your Sponsorship Licence is downgraded from an A-rating to a B-rating, you will not be able to issue new certificates of sponsorship until you’ve made improvements and upgraded back to an A-rating. You can, however, reissue certificates to workers who already work for you and wish to extend their visa.

Are the requirements from the UK Border Agency likely to increase or decrease in 2016?

Unfortunately for employers, compliance requirements have already increased. In November 2015, the Sponsor Guidance for Tiers 2 and 5 made a number of significant changes to the Points-Based System, in addition to reflecting the Immigration Rules’ changes which came into force on the same date.

Changes that apply from November 2015 include:

• sponsors must provide the National Insurance number of each of their key personnel if they have one, when applying for a licence and when changing key personnel or adding new ones
• a sponsor must inform the Home Office if it assigns a Certificate of Sponsorship (CoS) to a person who is a family member of anyone else in the sponsor organisation (if it is a small or medium-sized business, as now defined in the SG) or if it is aware of a family relationship between anyone else in the business and the assignee (within a large organisation)
• further clarification has been provided on the implication on sponsor licences of various types of mergers and takeovers, as well as additional guidance on the relevant procedures
• a requirement to keep references as evidence of the migrant's previous experience if they are appointed on the basis of this experience
• visiting officers may take photographs of the premises from which the sponsor is operating on a visit, as part of the Home Office’s procedures for verifying the information given on the licence application

These changes will further add to the expense and complexities of employing migrant workers. One way to reduce your costs is to invest in experienced legal advice to help you understand and comply with your sponsorship obligations.

OTS Solicitors is one of the most experienced and respected Employment and Immigration law firms in London. By making an appointment with one of our solicitors, you can be assured of receiving some of the best legal guidance available in the UK.

To make an appointment with one of our team, please phone our Central London office on 0207 936 9960.