This update keeps you informed of new developments in immigration law.
New guidance for sponsors
On 5 October 2009 the UK Border Agency (UKBA) published a revised guidance for sponsors.
The new guidance and a summary of the changes can be found by visiting the UKBA website.
Keeping copies of the relevant sponsor guidance
We remind sponsors that it is important to keep a record on each sponsored migrant's file as to which version of the sponsor guidance was in use at the time the certificate of sponsorship (CoS) was assigned and we also recommend that sponsors keep copies of the current and all previous versions of the sponsor guidance.
IMPORTANT NOTICE: CoS allocation expiry warning - what to expect as the anniversary of your sponor licence approaches
As sponsors approach their first anniversary, those who have unallocated CoS can expect an e-mail from the sponsor licensing team as follows:
'Further to our e-mail advising that X LTD's initial allocation of certificates of sponsorship in tier 2 is due to expire on ...., this e-mail is to notify you that one of your level 1 users may now make a request via the sponsorship management system (SMS) for a follow on allocation for confirmation of certificate(s) of sponsorship.
You now have the option to request a follow on allocation in any other tiers/categories in which you are licensed. This allows you to align your allocations in all tiers/categories to a single renewal date. Your new allocation period will begin from the date that your request is granted and will be valid for 12 months. This will not affect the four year period for which your licence is valid.
It is important to note that if a request is not made, any remaining unassigned certificates of sponsorship from the previous allocation will be unavailable for use from the date of expiry and no follow on allocation will be given.
We advise that the request is made promptly to minimise the risk of X LTD being unable to assign certificates of sponsorship.
If you have any queries please contact us using the following e-mail address:
SponsorshipPBSEnquiries@UKBA.gsi.gov.uk
We advise that approximately two months before your sponsor licence is due to expire you conduct a review of your prospective CoS needs for the next 12 months, including work permit holders and tier 2 leave holders whose leave is due to expire in that period. If you intend to seek substantially more certificates than your previous allocation, we recommend that commercial reasons are included with your request, for instance, the number of employees who have work permits which are due to expire, any known mergers, acquisitions or projects.
Do not forget that under current guidance a promotion of a sponsored migrant should not take effect until you have issued a new CoS for that migrant for the new role, which may require a fresh resident labour market test. Your requested allocation of CoS should therefore include provision for sponsored migrants who are likely to be promoted during the next 12 months.
Changing legal representatives
It is a requirement of the sponsor licence scheme that UKBA must be notified via a change of circumstances form when a representative is appointed or removed. Such action may only be taken on a lawful basis by the level 1 user or any other user on the system if they have firstly obtained the knowledge and consent of the sponsor entity to the change. If a new legal representative is appointed on to the sponsor's licence without the sponsor's consent, then this can lead to UKBA downgrading or withdrawing the sponsor's licence and/or the loss of the representative's ability to act as a representative under the sponsor's licence scheme.
Post-sponsor licence assessments - most frequent issues
Our team have been conducting post-sponsor licence assessments and have come across the following most frequent issues:
- failure of sponsors to notify UKBA generally of changes to corporate structure (sponsor guidance paragraph 486) and specifically where there has been a relevant TUPE transfer (sponsor guidance paragraphs 489-494)
- work permit holders and those with tier 2/5 leave working without permission because technical and significant changes have not been reported (see our September update)
- incorrect assumption that migrants who have been found by the sponsor to be working without permission must be reported by the sponsor to UKBA.
Is there a requirement that sponsors must report illegal working activity to UKBA?
There is no requirement that a sponsor must report to UKBA illegal working activity. Paragraph 384(e)(ii) states that a sponsor must 'stop employing any migrant who ceases, for any reason, to be entitled to undertake the work'... and that it must (384(f)(iii)) 'seek to minimise the risk of immigration abuse by complying with any good practice guidance that we or any sector body may produce for sponsors in particular tiers or sectors.....'
Best practice guidance on prevention of illegal working
The current 'Comprehensive Guidance for Employers on Preventing Illegal Working (February 2008)' does not contain a requirement that employers must report to UKBA illegal working activity which they discover. The guidance states:
'Where a licensed sponsor is issued with a civil penalty, one of two things will happen:
- If the penalty is set at the maximum level, the sponsor will lose its licence and will not be able to get a new one for at least six months;
- If the penalty is set at any other level, the sponsor will be downgraded to a B-rating and set an Action Plan. If it receives further civil penalties (below the maximum level) while it is B-rated, we may decide that it is not complying with its Action Plan, in which case it will be likely to lose its licence altogether'.
Therefore, if a sponsor discovers an illegal worker who was employed after February 2008 and does not make a report to UKBA, the sponsor will lose its licence for a period of at least six months if UKBA discovers the illegal employment and imposes the maximum penalty. If the sponsor in the same scenario does report the incident to UKBA then it will not receive the maximum penalty. Instead of the licence being withdrawn, it will be downgraded to a B-rating thereby enabling the sponsor to continue to sponsor migrant workers. The guidance does not specifically refer to the scenario where an employee who was employed prior to February 2008 is discovered to be working without permission. However, we would expect a sponsor who reports the matter to UKBA to also be able to retain its licence on a B-rated basis.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
