Sponsoring skilled workers
Tier 2 is the self-regulatory system which has replaced the former work permit category. Skilled workers with a job offer from an employer in the UK may be sponsored for such employment.
Employers are able to certify that the relevant role and individual qualifies for such sponsorship by issuing a document called a Certificate of Sponsorship online. The employee then seeks a visa to enter the UK if overseas, or a extension of stay if already here.
Criteria for sponsorship
There are criteria in respect of which roles can qualify for such sponsorship, the length of time a potential employee would be able to stay, the attributes required of the employee and the duties of the employer during this period.
The major categories of Tier 2 application for employers are Tier 2 General (for newly hired employees), Tier 2 Intra Company Transfer (for those who are existing employees being transferred from overseas) and Tier 2 ICT Skills Transfer (intended for some employees for specific types of projects).
To sponsor employees from overseas, the employer must initially have obtained a Sponsor Licence from UK Visas and Immigration. Officials will usually visit a company to discuss this and inspect their HR systems before such an application is approved, as well as monitor compliance whilst the licence is held.
Sponsors have a series of duties to UK Visas and Immigration if issued a licence. It is necessary to maintain suitable HR systems to ensure that the immigration status of staff and new employees is monitored and that suitable checks are made to ensure it is not possible to work at the company without the correct immigration status. Particular events, such as changes of role or individuals leaving employment, need to be reported to UK Visas and Immigration within a specific period.
Immigration compliance visits to employers are common and can be conducted by officials without prior notice. Some specific types of immigration compliance inspection include:
A “pre-licence" inspection, which is a visit from officials to ensure that the criteria for a sponsor licence to be issued can be met;
A "post-licence" visit, to check that compliance with the criteria is being maintained after the issue of a licence;
An “enforcement” visit, to check an employer’s compliance specifically with the legal provisions regarding illegal working and to impose financial penalties if these are not met.
Adverse immigration inspection
An adverse immigration inspection can have very serious consequences for the employer and, in practice, it can often prove difficult to remain compliant with UK Visas and Immigration’s requirements. Should it be determined that the company’s licence to sponsor workers is to be removed, that would oblige the employer to cease employment of all sponsored migrants in the UK, with the permission of those employees to remain in the UK limited to 60 days of the decision. If the company is found to be employing illegal workers, a penalty of up to £20,000 per employee can be imposed.
Tier 2 application guidance
Some issues which commonly arise in respect of Tier 2 applications include:
how to meet the relevant criteria for the various applications and, in particular, the mechanics of conducting a “resident labour market test” in respect of newly hired employees;
problems resulting from the company’s reporting obligations and changes of circumstances regarding the employment in question;
difficulties in establishing appropriate systems to meet the general obligations of sponsors in advance of compliance visits, such as establishing that the correct “right to work” checks have been conducted;
movement restrictions on Intra Company Transferees resulting from the “cooling off” periods which specify an amount of time they must spend outside the UK before applying to return for employment.
The firm is able to assist in all aspects of Tier 2 work, including assessing qualification for Certificates of Sponsorship, advising in detail on the conduct of the resident labour market test, acting as users within the Sponsor Management System and handling subsequent applications for entry clearance or leave to remain.
We conduct practical and economical “HR Health Checks” on behalf of companies seeking to establish they meet the relevant reporting criteria and have maintained the correct HR systems in anticipation of visits from UK Visas and Immigration. Our HR consultancy service can give clear, expert advice and practical support and training to resolve issues quickly and efficiently, based on 30 years’ experience specialising in this area. Our combination of experience, expert legal skills and up-to-date knowledge of employment legislation and HR best practice will help you deal with your HR issues with complete confidence.