By Teni Shahiean, of OTS Solicitors
A Guide for Employers
Over the last two years, the Conservative Government has brought in a number of changes to the tier 2 Sponsorship Visa. If you are an employer, wanting to hire foreign workers to fill vacancies and grow your business, you need to be aware of the developments, and what they mean for you. Otherwise you could find your sponsorship application being refused or your licence being downgraded.
The Steps to Take to Hire an Employee from Outside the European Economic Area (EEA)
To employ an individual from outside the EEA, you need to obtain a licence from the UK Border Agency / Home Office. This is a fairly in-depth procedure; therefore, it pays to invest in good quality advice to ensure your valuable time is not wasted by applying incorrectly.
There are two types of licences; one for skilled long-term workers (tier 2) and another for skilled temporary workers (Tier 5). You must appoint one or more members of your existing staff to the following sponsorship management roles:
- Authorising Officer
- Key contact
- Level 1 user (responsible for the day to day management of the licence)
If your application is approved, you will receive a sponsorship rating. An A rating means you can begin employing skilled workers from overseas and your business will be added to the list of registered sponsors. If you fail to meet your sponsorship obligations, your rating can be downgraded.
To sponsor a worker, the position they will fill needs to be of a certain level of skill and the remuneration needs to be at a suitable rate. If the job you wish to fill is not on the Government’s ‘Shortage of Occupation’ list, then you will need to advertise the position in the UK before making enquiries overseas.
It is important to note that as an employer, you are responsible for monitoring your sponsored employee’s Immigration status, and you must report any problems, such as your employee has abandoned their Employment, to the relevant authorities.
These changes included:
If you or your organisation is unable to show that you can offer a position that genuinely meets the requirements regarding skill level and rates of pay, then the Home Office may refuse your licence application. An example of this is if on your application form it states you wish to hire an ‘HR Manager’ and your business is a small, online retailer with five employees. The Home Office is unlikely to see this type of role as ‘genuine’, given the size of the organisation.
Existing sponsors who cannot show they have a genuine vacancy can also be refused a Certificate of Sponsorship (CoS) for the position applied for.
Under the changes to the Immigration Rules in 2014, authorising officers ‘must be your most senior person responsible for the recruitment of all migrant workers and ensuring that all of your sponsor duties are met. If you do not recruit the migrants you sponsor, this role must be filled by the most senior person responsible for your activity as a licenced sponsor.’
In other words, a 17-year-old office junior is probably not the most appropriate person to charge with the responsibility of Authorising Officer.
Sponsors with a B rating will not be granted any CoPs.
Length of Sponsorship
You can now assign a tier 2 (General) or tier 2 (Intra-Company Transfer) Long Term Staff CoS for up to five years; however, if a CoS assigned for more than three years and one month, you, (as the sponsor) must pay the migrant at the ‘experienced rate’ which is set out in the Codes of Practice.
Changes in Force from April 2015
Higher Salary Thresholds
The new minimum salary threshold has been raised from £20,500 to £20,800 per annum. The higher pay rate is now £155,300, (up from £153,500).
Surrendering a Licence
If UK Visa and Immigration (UKVI) is looking into your Sponsorship licence and considering suspending or revoking it, and you voluntarily surrender your licence to avoid this action being taken, you will be unable to apply for a new licence for a period of 12 months.
The cooling-off period will no longer apply to grants of tier 2 leave of three months or less and, as such, businesses with an immediate need to engage a foreign employee will be able to do so.
More Documentation Requirements
Sponsor Guidance Appendix A sets out the supporting documents to be submitted with Sponsor Licence applications. Applicants must now include detailed information such as the reasons for applying for a new Sponsor Licence, and how potential candidates have been identified etc.
Changes in 2016
- From 6th April 2016, most tier 2 visa immigrants from outside the European Economic Area (EEA) must be earning £35,000 or more to qualify for UK indefinite leave to remain
- Nurses and four technology jobs (product manager, data scientist, senior developer and cyber security specialist) have been added to the skills shortage list (November 2015)
If you are an employer who holds a tier 2 Sponsorship licence or is looking to apply for a licence, you need to stay abreast of the regular changes made to the Immigration Rules and other relevant legislation.
OTS Solicitors are widely recognised as one of the best law firms in the UK for advice on Immigration and Employment. To make an appointment to discuss the legal requirements surrounding hiring foreign workers from outside the EEA, please phone our Fleet Street office on 0207 936 9960.
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Posted on: Wednesday, 16 December, 2015