Sponsorship
It is envisaged that sponsorship will play two main roles in the PBS process. Firstly, it will provide UKBA with evidence that a migrant has a genuine job offer or educational course to come to. Secondly, it will act as a pledge from the Sponsor that it will comply with specific on-going duties in relation to those migrants it decides to sponsor.
Sponsorship requirements are tier-specific. Licensing criteria and costs will differ across various tiers and sub-tiers. For further information see “Costs of applying to be a licensed sponsor and issue of certificate of sponsorship under Tier 2”.
Eligibility for sponsorship under Tier 2
Tier 2 is an employer-led system for bringing skilled migrants to work in the UK. These workers would previously have been subject to the old work permit system.
Although Tier 2 has four sub tiers - general, intra-company transfer (ICT), ministers of religion and sports people - most employers will only need to seek licences in respect of Tier 2 general and/or Tier 2 ICT.
In order to obtain a licence, you must be able to demonstrate that:
- your organisation is legitimate;
- there is no reason to believe that you will pose a threat to immigration control; and
- your organisation is committed to fulfilling its sponsorship duties.
Electronic application
Applications for sponsorship licences can only be made electronically via UKBA’s website. Detailed guidance notes are supplied in respect of completing the on-line application form.
> Visit the UKBA website for guidance notes and application forms for seeking a sponsorship licence
Within 14 days of submitting your electronic application you must prove your organisation’s eligibility as a would-be sponsor by submitting certified copies of those documents specified in Appendix A of UKBA’s guidance notes. If requested by UKBA, original documents must be supplied for verification.
Nominating individuals
During the application process, you will be required to identify individuals who you propose will hold specific roles identified by UKBA as mandatory to the effective operation of its web based Sponsorship Management System (SMS) and to ensuring compliance with on-going sponsorship obligations.
- Authorising Officer (AO) – The AO will be responsible for all users of the SMS. As sponsor, you will be held fully responsible for the actions of your AO and so you should ensure that you appoint a senior and responsible person to this position.
- Key Contact – the key contact will act as the main point of contact with UKBA and is the individual UKBA will liaise with if it has any queries about your sponsorship application.
- Level 1 User – will undertake your day-to-day operation of the SMS.
- Level 2 User – will be entitled to access the SMS for certain specified tasks (more restrictive access than level 1 users).
The above roles can be filled by the same person, or a combination of different people, but all must be based in the UK.
UKBA may make checks against a proposed AO, key contact or level 1 user. These checks include checks not only against UKBA’s own records but also against the Police National Computer. If an individual has been convicted of a criminal offence, UKBA may well turn down a sponsorship application.
Once you have a licence, you will be able to appoint additional level 1 and 2 users, if required. You may decide to appoint a legal representative to act as a level 1 or level 2 user. Any legal representative who is given access to the SMS must comply with section 84 of the Immigration and Asylum Act 1999 as well as abide by the codes of standards of the Office of the Immigration Services Commissioner (OISC).
> Visit the OISC website for further information on checking that a legal representative is compliant
‘A’ or ‘B’ rating?
Sponsorship licence applications may involve a premises visit by UKBA officials to confirm details of the submitted application.
If your application for a licence under Tier 2 is successful, you will be awarded an ‘A’ or ‘B’ rating and entered on UKBA’s Register of Sponsors. The register is publically accessibly on UKBA’s website. We would expect that the majority of members will be eligible to be awarded an ‘A’ rating straight away. However, if you are awarded a ‘B’ rating, this will be on a transitional basis only and you will be expected to follow an action plan supplied by UKBA with a view to upgrading to an ‘A’ rating as soon as possible. Even if awarded an ‘A’ rating, a sponsor can subsequently be demoted to a ‘B’ rating, or possibly have its licence withdrawn altogether, if it fails to comply with its on-going sponsorship obligations.
Licences, if awarded, will be issued for four years. You must renew your licence before it expires if you intend to continue to employ existing migrants, even if you don’t intend to sponsor any new migrants under Tier 2 in the future.
Single or multiple licences?
If your organisation has a number of sites or locations, or you are part of a group of companies, you will need to decide whether you are going to apply for separate licences for each entity (the reference used in UKBA’s guidance notes is ‘branch’) or opt to apply for a licence as a ‘single entity’, which would usually applied for by your head office or parent company.
There will be cost implications if applying for a number of separate licences. For further information see “Costs of applying to be a sponsor and issuing certificates of sponsorship under Tier 2”. Ultimately, whether it is most appropriate for you to seek a single licence or multi licences will depend on the operation of your HR and compliance systems. Are your systems centralised enough to ensure proper use of the SMS and compliance with on-goings sponsorship duties under one licence? If you obtain a single licence, and are subsequently downgraded, or loose your licence, this will effect all branch operations. By contrast, if separate licences are issued, and one is withdrawn, this will not automatically result in the loss of the others, although it may lead to investigations by UKBA in respect of licences held by other branches.
> Visit the UKBA's website for guidance on "how we assess a sponsor's Human Resources Systems and Compliance"
Grounds for potentially refusing a Tier 2 sponsorship application
The following grounds are included in UKBA’s guidance notes as grounds for potentially refusing a would-be sponsor a licence:
- the necessary supporting documents are not provided, or false or forged documents are provided;
- a sponsor does not meet the specific Tier 2 sponsorship criteria of the PBS;
- the applicant is either an un-discharged bankrupt, or not permitted on legal grounds to be a company director;
- a sponsor has been convicted of an offence which poses a risk to immigration control and this conviction is not spent;
- the sponsor is found to have been dishonest with UKBA (or has a record of poor compliance under the previous work permit system);
- UKBA has reason to believe that processes within the organisation are not up to the appropriate standards required.
Grounds for potentially awarding a ‘B’ rating
The following grounds are included in UKBA’s guidance notes as grounds for potentially awarding a ‘B’ rather than an ‘A’ rating:
- the sponsor has been issued with a penalty for an immigration offence, such as illegally employing a migrant worker;
- the sponsor has a non-immigration conviction which throws doubt on its potential suitability as a sponsor, such as an offence relating to non-compliance with the national minimum wage.
What happens if your application for a licence is refused?
If your application for a licence is refused, there is no specific right of appeal so if you still wish to obtain a sponsorship licence you must re-apply. Prior to reapplying, the reasons for the initial refusal must have been rectified.
Specific requirements for Tier 2 - Intra company transfer (ICT)
If you are seeking a licence as a sponsor under tier 2 ICT, you must establish a direct link through common ownership with the overseas organisation currently employing the proposed migrant. This can be done either by establishing that one of you owns at least 51 per cent of the other, or that you are both part of a group of organisations controlled by the same parent or holding company. Appendix A of UKBA guidance notes sets out those documents the sponsor is required to produce in order to demonstrate common ownership for a licence under Tier 2 ICT.
Ongoing duties of a licensed sponsor under Tier 2
If registered as a Sponsor, you must keep the following records in respect of any sponsored migrant worker:
- a photocopy or electronic copy of the sponsored migrant’s passport or UK immigration status document, showing evidence of his or her entitlement to work; and
- up-to-date contact details for the migrant worker
You will also be under an obligation to report the following to UKBA within 10 working days:
- if a sponsored migrant does not turn up to work on the first day of work;
- if he or she is absent from work for more than 10 working days without the employer’s permission;
- if the migrant’s contract of employment is terminated, either by dismissal or registration; or
- if you stop sponsoring the migrant for any reason, for example if the migrant transfers to a different tier under the PBS.
Effect of a transfer of business on a sponsorship licence
If a business, or part of business, is transferred to another organisation along with its employees and there are migrant workers in the part of the business transferred, the new owner will need an appropriate sponsor’s licence when it takes over. This will apply when, for example, the assets of an organisation are bought and the employment of staff transfers under the Transfer of Undertakings (Protection of Employment Regulations 2006 (TUPE). If the new owner does not have an appropriate sponsorship licence in place then the current sponsor will be under an obligation to inform the UKBA of the transfer. This can be done using the sponsor change of circumstance form on the SMS. The new employer will need to apply for a sponsorship licence within 28 days of the date of the transfer. If the new owner is already a licensed sponsor then both the previous employer/sponsor and the new employer/sponsor will be obliged to inform UKBA of the transfer.