When applying for a sponsor licence, your organisation will need to satisfy various suitability criteria, not least that those responsible for the day-to-day running of your business, including the key personnel assigned to use the sponsor management system, are all honest, dependable and reliable.
The following guide is for UK employers and HR departments when applying for a sponsor licence, specifically in the context of how a criminal record, of either a member of senior management or your key personnel, can impact on the outcome of your application, as well as the risk of revocation where criminality occurs after your licence has been granted.
We also briefly look at the requirements for sponsored visa applicants in the context of past criminality, and how a criminal record can affect their prospects of coming to work for you in the UK, or their right to remain in the UK post-conviction.
Sponsor licence application
To enable you to employ skilled workers from outside the European Economic Area (EEA) and Switzerland, you will need to apply for a sponsor licence. The grant of a licence will allow you to employ non-EEA migrants to work for you under Tiers 2 and 5 of the points-based system. Tiers 2 and 5 are the primary immigration routes for employing skilled workers in the UK.
Only once you are granted a sponsor licence will you be able to assign a Certificate of Sponsorship (CoS) to each prospective worker. The CoS is an electronic record containing a unique reference number that will allow the migrant worker to apply for their Tier 2 or Tier 5 visa.
If granted a licence, significant trust will be placed in you as a sponsor licence holder to prevent abuse of the system. With this trust comes a responsibility to act in accordance with the Immigration Rules and to meet all of the duties associated with sponsoring a migrant worker.
As such there are various strict suitability criteria that you must satisfy to qualify for a sponsor licence. In particular, when submitting your licence application, the Home Office will look at whether you are honest, dependable and reliable.
To judge this, they will look at your history and background, including the criminal records of any key personnel named on your application as responsible for undertaking your sponsorship duties, as well as any people involved in the day-to-day running of your business.
Equally, the Home Office will consider whether or not are you capable of carrying out your duties under your sponsor licence. Here, you must be able to show that your business has adequate HR systems and recruitment practices in place to meet the necessary sponsorship duties. This will include conducting right-to-work checks on prospective and existing migrant workers, as well as reporting any migrant activities, for example, where a worker is in breach of the conditions of their leave by committing a criminal offence.
Prior to the grant of a sponsor licence, a site visit may be carried out by the Home Office to assess whether you meet the suitability criteria, or otherwise pose a threat to immigration control.
In circumstances where the Home Office is not satisfied that your systems and practices are adequate, and/or that key individuals are not sufficiently trustworthy or capable of carrying out your sponsorship duties, your licence application will be refused.
Sponsor licence key personnel & criminal records
The sponsor licence application will require you to nominate various key personnel within your business, some, or all, of whom will be given access to the sponsor management system in the event that you are granted a licence. These individuals will also be responsible for managing the sponsorship process.
The sponsor management system (SMS) is an online portal that allows you to carry out your day-to-day sponsor activities, including renewing your licence and reporting any change in circumstances to the Home Office.
As the employer, you will be responsible for all activities carried out on the SMS. As such, you should always exercise caution when nominating key personnel, not only to ensure they meet the suitability criteria and have a clean record, but that they are suitable to undertake the responsibilities required of them.
When applying for a sponsor licence you must name your authorising officer, key contact and level 1 user on the application form. That said, these roles can either be filled by the same person or a combination of people.
The authorising officer must be the most senior person within your organisation responsible for the recruitment of migrant workers and ensuring that all your sponsor duties are met, whilst the key contact will act as the main point of contact between your organisation and the Home Office.
The level 1 user can be the authorising officer or another person within your organisation, and will be responsible for the day-to-day management of the sponsor licence using the SMS. There can only be one authorising officer and one key contact, but you can appoint more level 1 users once you have been granted a sponsor licence. With your licence in place, the level 1 user(s) will be able to appoint level 2 users to delegate responsibilities in using the online portal.
However, to be eligible to meet any one of these roles, the nominated personnel must satisfy various criteria, not least that each individual must meet the requirements on criminal convictions set out in Annexes 1 and 7 of the Home Office guidance.
In particular, any key personnel must not have a conviction for a relevant offence. This includes, but is not limited to, any offences of dishonesty, such as theft, corruption, deception, fraud, as well as bribery and money laundering. A relevant offence also includes offences under UK immigration law.
Under Annex 2 of the Home Office guidance, your licence application may also be refused where any key personnel have an unspent conviction for any offence that it is believed to be of relevance in discharging your sponsorship duties.
The Home Office will always carry out checks on authorising officers, key contacts and level 1 users. This will include checks against their records and the police national computer. These checks will be made not only when considering your sponsor licence application, but they may be repeated at any time during the life of your licence.
The Home Office can also carry out checks where new individuals take up key personnel roles, not least before newly appointed level 1 users are given access to the SMS. You may even find that the Home Office refuse to accept a person you later nominate for a key personnel role.
In circumstances where any of your key personnel have an unspent criminal conviction for a relevant offence, the Home Office will either refuse your application for a sponsor licence or grant you a licence with limitations. Such limitations may include restricting your CoS allocation or asking you to nominate alternative key personnel where appropriate.
Please note, under the Rehabilitation of Offenders Act 1974, criminal convictions may become spent after a specified period of time if there are no further convictions in the interim. There is no obligation to declare a spent conviction to the Home Office, although it is always best to seek expert legal advice in the event of any uncertainty.
Criminal records & senior management
In addition to carrying out checks on key personnel, the Home Office will also carry out criminal record checks on the owner of the business, together with any members of the senior management team, including directors and partners, or those otherwise responsible for its day-to-day running.
Further, although checks are not routinely undertaken on any other people associated with licensed sponsors, the Home Office reserves the right to request information on employees in positions of responsibility who are not directors, partners or key personnel, as well as individual financiers involved in the running of your business.
Having regard to any relevant criminal history here, the Home Office may again refuse your licence application or grant you a licence with limitations.
Risk of sponsor licence refusal due to a criminal record
One of the most commonly cited reasons for the refusal of a sponsor licence is that those responsible for the day-to day running of your business and/or the key personnel nominated to carry out your sponsorship duties are found by the Home Office to have a history of unspent criminal convictions for a relevant offence, including immigration violations.
That said, this is no justification for failing to disclose any criminal record when making a licence application. In particular, you have a duty to act honestly in any dealings with the Home Office, such as not making false statements and ensuring all essential information is disclosed when applying for a sponsor licence.
Any failure on your part to disclose any unspent convictions or pending criminal prosecutions can, in itself, provide a basis for the refusal of your application, namely that you have proven yourself to be dishonest and, as such, not fit to hold a sponsor licence.
The specific circumstances in which the Home Office may refuse your application for a sponsor licence are set out under Annex 2 of its official guidance.
Further, where your licence application is refused in circumstances where you have knowingly provided false statements or false information, or otherwise acted in bad faith, there will usually be a cooling-off period of six months before you can submit a further application.
Risk of licence revocation
If you are successfully granted a sponsor licence but an unspent criminal conviction subsequently comes to light, the Home Office may take action against you. This could include suspending your licence to investigate the matter further, or even revoking your licence altogether.
The circumstances in which revocation can take place are set out in detail under Annexes 5 and 6 of the Home Office guidance.
As a sponsor licence holder, you are also under a continuing duty to disclose to the Home Office any relevant change of circumstances, including where either the owner of the business or any members of senior management, as well as your key personnel, have been convicted of a relevant criminal offence.
You are duty-bound to report any relevant criminal convictions, even though this could have an adverse effect on your sponsor licence. Moreover, a failure on your part to disclose any criminality following the grant of your licence, could result in a number of measures being taken against you in any event.
Needless to say, if your sponsor licence is revoked, either because you no longer meet the suitability criteria and/or because you failed to report any relevant and recent criminality, this can have a hugely detrimental impact on your business, not least where the migrant workers that you employ are likely to have their leave curtailed in consequence.
Further, following the revocation of your licence, there may again be a cooling-off period before you can reapply, and even then you will still need to meet the suitability criteria where an unspent conviction could mean your application to reinstate your licence is refused.
Criminal conviction & visa applicants
Even with a valid sponsor licence firmly in place, any migrant workers that you are looking to employ will also be scrutinised by the Home Office in their consideration of the general grounds for refusal under the UK Immigration Rules, including any previous criminal history.
Further, certain applicants will also be required to submit an overseas criminal record certificate with their visa application, namely, those coming to work in the health, education and social care sectors under Tier 2 of the points-based system. This is to provide additional safeguards where the migrant’s job will involve working closely with children and vulnerable adults.
Finally, as a sponsoring employer of a migrant who has been successfully granted leave to work for you in the UK, you will be under a continuing duty to report any change in their circumstances, including the subsequent conviction of a criminal offence.
As with the risk of revocation of your sponsor licence when reporting any recent criminality on the part of key individuals within your organisation, you must still report any relevant convictions that you are aware of in relation to sponsored migrant workers, even though this may result in the curtailment of their leave.
Need assistance?
DavidsonMorris’s specialist business immigration lawyers work with UK employers on all aspects of the UK sponsor licence, from the initial application, dealing with refusals, ongoing management of the licence once issued and with the renewal application after four years. We can also support with Home Office compliance penalties such as suspensions and revocations.
If you have a question or need help with a sponsor licence application, contact us.
Sponsor licence & criminal record FAQs
Can someone with a criminal record be appointed as a sponsor's key personnel?
No, background checks will be carried out on key personnel to ensure they meet the suitability criteria, which includes having no criminal convictions.
Can my organisation apply for a sponsor licence if a key personnel has a criminal record?
Your organisation may not be granted a sponsor licence if anyone involved in sponsorship has an unspent criminal conviction for an offence listed in the guidance for sponsors.
Last updated: 15 August 2021
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals