Sponsorship Licence Applications and Criminal Convictions
We all have a past and sometimes the past (or a previous conviction) can crop up as an issue when your business needs to apply for a sponsor licence to sponsor overseas workers on skilled worker visas. Sponsorship Licence lawyers say that the issue of prior convictions and sponsor licence applications is occurring more frequently, not because convictions are nowadays more commonplace among UK business owners and senior employees, but because more UK employers are having to apply for sponsor licences due to the end of free movement and the non-availability of EU workers unless the EU nationals applied for settled status under the EU Settlement Scheme.
UK Online and London Based Sponsorship Licence lawyers and Immigration Solicitors
Applying for a sponsor licence
Many SMEs are surprised by the questions that have to be asked and answered when applying for a Home Office issued sponsor licence. Sponsorship Licence lawyers understand that the application process is a bore and that many of the questions may appear irrelevant or unnecessary. For example, why should youthful indiscretions need to be revealed when applying for a Home Office sponsor licence so you can expand your UK business by securing a sponsor licence to recruit overseas workers? Likewise senior managers can become very wary about the fact that they have a conviction when helping the business apply for its sponsor licence, even if the criminal conviction was disclosed to their employer when they took up employment.
Some UK business owners ask Sponsorship Licence lawyers if there is a way that they can get around applying for a sponsor licence. However, the immigration rules and the right to work legislation are clear and a business employs someone from overseas without a sponsor licence at its peril. There are alternatives, like trying to train UK apprentices or to poach staff from competitor UK firms but these are not normally sufficient short-term or long-term solutions.
Since the end of free movement for EU nationals on the 31 December 2020, any UK employer who wants to employ either an EU national or non-EEA national has to have a Home Office issued sponsor licence. A business can't avoid the need for a sponsor licence through recruiting overseas workers through an agency and relying on the agency to have a sponsor licence. A business also can't avoid the need for a sponsor licence by only recruiting skilled migrant workers on a temporary basis as whether your business is recruiting on a temporary or permanent basis, the business will need either a Tier 5 or a Tier 2 sponsor licence to sponsor temporary overseas workers or skilled migrant workers.
Why is a criminal conviction relevant to a sponsor licence application?
The Home Office rationale for asking about criminal records and making criminal conviction checks is that sponsor licence holders are delegated many reporting and recording duties under a sponsor licence and they therefore have to be able to be trusted to comply with immigration rules and sponsor licence duties. It is not just a criminal record that may be of relevance. The Home Office official assessing your sponsor licence application will also want to know that your appointed key personnel are suitable to operate the sponsor licence and comply with sponsor licence reporting and recording duties and that the business has adequate HR systems in place to be able to manage compliance with reporting and recording duties.
Whose criminal records are relevant when applying for a sponsor licence?
If your business recruits ex-offenders as part of its social commitments to the community then this will not normally be a bar to your successfully applying for a sponsor licence. However, if business owners, senior employees or appointed key personnel have criminal convictions then this may have an impact on the sponsor licence application, depending on the nature of the convictions. Not disclosing any relevant convictions is not an option as the Home Office will carry out checks and in the event the business were to secure a sponsor licence you could risk losing it through sponsor licence revocation.
If you are not sure if the fact that an employee has a criminal conviction is going to be of relevance to your sponsor licence application, then Sponsorship Licence lawyers can advise on whether checks are likely to be carried out on business owners, senior management, directors , senior employees and anyone else involved in the operation of the business.
As the Home Office check the criminal records of any key personnel that you have appointed to manage the sponsor licence reporting and recording duties it is essential to choose your key personnel with care. Many SMEs don’t realise the significance of a prior criminal conviction of key personnel so it is best to speak to Sponsorship Licence lawyersabout your choice of key personnel. Your Sponsorship Licence lawyers can also talk to you about the future management of your sponsor licence and whether it would be more cost-effective and easier to employ a sponsor licence management service so your HR team or the key personnel can focus on their existing work.
The key personnel
In your sponsor licence application, you will need to name some key personnel, namely:
- Authorising officer.
- Key contact.
- Level one user.
The authorising officer should be the person in the business who is charged with the recruitment of skilled migrant workers. The key contact is the person who will be the liaison between the company and Home Office over the operation of the sponsor licence and compliance with sponsor licence reporting and recording duties. The level one user is the person responsible for the daily management of the sponsor licence and inputting information on the Home Office sponsor management system. In a small organisation one person can take on more than one role. A Sponsorship Licence lawyer can be appointed to take on all the key personnel roles (save for the appointing officer role) and to provide a sponsor licence management service.
The Home Office official assessing the sponsor licence application will carry out enquiries on key personnel and those involved in the sponsorship licence application. Checks include:
- Unspent criminal convictions for specified offences listed in Home Office guidance on sponsor licence applications.
- If fines have been issued by the Home Office in the past twelve months.
- If reports have been made to the Home Office.
- Whether the law has been broken.
- Whether a person was a key person at a business that has had a sponsor licence revoked in the preceding twelve months.
Which criminal convictions prevent a successful sponsor licence application?
The Home Office sponsor licence guidance and appendix provides a very long list of convictions that will impact on the success of a sponsor licence application. For example:
- Unspent convictions for any offence under The Immigration Act 1971,The Immigration Act 1988, The Immigration Act 2014,The Immigration Act 2016, The Asylum and Immigration Appeals Act 1993, The Immigration and Asylum Act 1999, The Nationality, Immigration and Asylum Act 2002, The Immigration, Asylum and Nationality Act 2006 and The UK Borders Act 2007.
- Any offence listed in Appendix B of the guidance for sponsors.
- Some offences against the person.
- Some firearm offences.
- Some dishonesty offences.
- Some sexual offences.
- Some bribery and exploitation offences.
- Terrorism offences.
The above list is not exhaustive. That is why If you are planning to apply for a sponsor licence it is crucial that you:
- Carefully consider who should be appointed as key personnel from within your business.
- Check whether the key personnel would be likely to be refused as unsuitable by the Home Office.
- Look at whether any of the business owners or senior management could fall foul of Home Office checks, including criminal record checks.
- Take expert legal advice from Sponsorship Licence lawyers if you are not sure if a conviction is either relevant or spent.
- Talk to a Sponsorship Licence lawyer if you have other concerns about whether the Home Office would conclude that a key personnel member would be deemed unsuitable.
UK Online and London Based Sponsorship Licence lawyers and Immigration Solicitors