Sponsor Licence Revocation – the Cooling Off Period
When our business immigration solicitors are consulted about sponsor licence management issues or threats of sponsor licence suspension or revocation, few UK business owners realise that if their sponsor licence is revoked by the Home Office the likelihood is that they will be subject to a cooling off period, during which time they cannot reapply for a sponsor licence. In this article partner and head of the business immigration team, Hans Sok Appadu , takes a look at the topic of sponsor licence revocation and ‘cooling off’.
UK Online and London Based Immigration Solicitors
Cooling off sounds quite pleasurable. It makes you think of a lazy dip in the sea or lengths in your hotel swimming pool. However, within the context of business immigration law, cooling off is very bad news.
If your sponsor licence is revoked and a cooling off period is imposed by the Home Office it means that until the cooling off period has expired your business can't reapply for a sponsor licence. In addition, as your original sponsor licence was revoked by the Home Office you will need to make a fresh application for a sponsor licence rather than a renewal application.
The bad news continues. If you are applying for a new sponsor licence after an earlier sponsor licence has been revoked the reality is that the Home Office will look closely at your application and are likely to conduct a pre-sponsor licence audit to check that your business has the correct systems in place to manage the sponsor licence and the right key personnel.
Impact of the sponsor licence revocation cooling off period
If your sponsor licence is revoked then until a fresh sponsor licence is successfully made you won't be able to:
- Recruit new skilled migrant workers on skilled worker visas or intra company transfer visas ( depending on which visa route your sponsor licence entitled you to sponsor).
- Continue to employ your current sponsored employees.
If you continue to recruit skilled migrant workers without the authority ( namely the sponsor licence) to do so then you will be committing an immigration offence. Likewise, if you continue to employ your existing sponsored workers you will be committing an offence and the prospects of your securing a new sponsor licence after the expiry of the cooling off period will be bleak.
You may think that the cooling off period rule is unfair, particularly to your employees who are working for you on either skilled worker visas, the old-style Tier 2 (General) visa or the intra company transfer visa. This is particularly the case when your employees are not at fault as they have done nothing wrong but will lose their employment because of the revocation of your sponsor licence.
Any skilled migrant workers employed by your business will have their work visas curtailed. Normally to around sixty days. Within that time frame the sponsored employees will need to find a new job with a sponsoring employer or they will have to leave the UK. If they are living in the UK with dependant family members on dependant visas their dependants will have to leave the UK as well because their dependant visa is contingent on the main visa applicant having a valid visa to remain in the UK.
Recruitment during the cooling off period
During any sponsor licence revocation cooling off period some UK employers are tempted to look at circumventing the immigration rules. That may be because:
- They don’t want to lose loyal and hardworking skilled migrant workers.
- They know that they can't recruit suitably skilled workers from the UK pool of talent because of the specialist nature of the work or because of the UK skills shortage.
- They realise that they need very specialist workers or to fill a key role and that setting up a training programme will not address the problem because of the time needed to gain the experience required to do the job or jobs that the business is currently employing a skilled migrant worker or workers to undertake.
- They don’t want their skilled workers to move to work for a competitor firm, taking the knowledge and experience of the business with them.
- They appreciate that with the end of free movementfor EU nationals, EEA citizens and Swiss citizens and the closure of the EU Settlement Scheme for pre-settled status and settled status applications on the 30 June 2021 they will struggle to recruit an EU worker or workers who have secured pre-settled status or settled status and are therefore free of immigration control and don’t need a sponsoring employer with a sponsor licence to take up employment.
A UK business owner faced with the revocation of their sponsor licence may be tempted to circumvent the immigration rules by either continuing on with the employment of their sponsored employees or transferring the workers who are on skilled worker visas or the old style Tier 2 (General) visas to another UK firm with a Home Office issued sponsor licence who then enters into a sub-contractor contract so the original sponsored employees continue to work for your business as employees of the subcontractor. Alternatively, you may think that you can use an agency and in effect continue to use your existing skilled migrant workers (or other workers with work visas) via an agency arrangement. The immigration rules say that you can't use a permanent sub-contractor or agency arrangement to avoid the requirement for a sponsor licence.
The length of the cooling off period
If a sponsor licence is revoked the Home Office will usually impose a twelve-month cooling-off period. This means that you will not be able to make a further application for a new sponsor licence for at least a year and you will then need to wait for your new sponsor licence application to be processed. The new sponsor licence application may take more time to process than normal because Home Office officials may require a pre-sponsor licence audit.
In addition, in some cases, a sponsor licence cooling off period can last for over twelve months. It all depends on the reasons why the Home Office took the decision to revoke your sponsor licence.
There is no point in trying to apply for a sponsor licence during the cooling off period as the application will be refused and you will lose the application fee as well as incurring professional fees. Instead, it is best to spend the cooling off period to address the issues that led to the sponsor licence revocation to ensure that when your business does reapply for a sponsor licence the application is as straight forward as possible.
What actions lead to sponsor licence revocation and the imposition of a cooling off period?
The revocation of a sponsor licence and imposition of a cooling off period are reserved for the most serious of sponsor licence breaches. A sponsor licence can be revoked without notice when the Home Office determine that is the right course of action or the sponsor licence can be suspended. During any period of sponsor licence suspension Home Office officials will expect the business to comply with an action plan to address the sponsor licence issues that led to the sponsor licence suspension. If the issues are addressed the sponsor licence will be reinstated. If the issues are not addressed to the satisfaction of the Home Office caseworker the sponsor licence will be revoked.
The Home Office has produced guidance on sponsor licence revocation and cooling off and, in the guidance, examples are given of when a Home Office official may deem it appropriate to revoke a sponsor licence and impose a cooling off period, namely:
- The business is perceived to be a threat to immigration control.
- The business has supplied false information to the Home Office. For example, the business is not based in the UK and does not operate out of the UK and the sponsor licence was a device for skilled migrant workers to secure a work visa that would lead to settlement in the UK.
- There has been a persistent breach of sponsor licence duties. For example, failing to keep any of the records required or failing to carry out repeat right to work checks on skilled migrant workers in the UK on time limited work visas.
- There has been a breach of the immigration rules. For example, recruiting skilled migrant workers on skilled worker visasbut paying them less than the minimum salary threshold or going rate for the job or getting them to do work that is inconsistent with their certificate of sponsorship and the standard occupation code for their job. Mistakes can occur but to lead to the revocation of the sponsor licence you are looking at deliberate breaches of the immigration rules and sponsor licence reporting and recording duties or failure to comply with a sponsor licence action plan.
- There has been a conviction for a relevant offence. For example, a civil penalty under illegal working legislation for not conducting right to work checks. Home Office officials understand that mistakes occur and that you may have missed one right to work check or you may have not got the correct paperwork to complete a manual right to work check. However, for sponsor licence revocation and a cooling off period, you are looking at a business that has either completely ignored the requirements (for example, to conduct right to work checks) or who has systematically failed to complete right to work checks in the correct manner.
There are many other reasons why a sponsor licence may be revoked. As a revocation can be immediate it is best to keep up to date with all your sponsor licence reporting and recording duties and if you know that you are getting overwhelmed take action to try to avoid sponsor licence revocation and the imposition of the cooling off period.
Getting help to avoid sponsor licence revocation and the imposition of a cooling off period
If you are new to sponsor licences and struggling with sponsor licence reporting and recording duties and compliance it is best to be honest and recognise that. Getting specialist training on sponsor licence reporting and recording and compliance or handing over sponsor licence compliance to a sponsor licence management service provider could save you a lot of money and hassle.
If you know that your business is at risk of losing its sponsor licence it is best to get help and expert immigration legal advice as soon as you can. That way you may be able to action problem areas and may even be able to avoid the downgrading of your sponsor licence from A rating to B rating or avoid the suspension or revocation of your sponsor licence.
Even if your sponsor licence is going to be revoked it can help to get legal advice and help with the length of the cooling off period.
UK Online and London Based Immigration Solicitors