Expired Sponsor Licence & Tier 2 Visa Curtailment of Leave

Do you know if your sponsor licence has expired? Without a valid sponsor licence, you are not permitted to lawfully employ PBS visa holders.

Where an employer no longer has a sponsor licence, its Tier 2 visa employees (and any other employees on PBS visas) will no longer be lawfully employed by the organisation. As a result, the Tier 2 employees can expect their leave to be ‘curtailed’.

There are many reasons why an employer may no longer have a sponsor licence:

  • The licence has been revoked.
  • The licence has been voluntarily surrendered by the holder.
  • The licence has expired.

Where a licence has expired – it’s often the case that this happened without the sponsor’s knowledge. This leads to a number of immigration problems directly affecting the immigration status of its PBS visa employees. So it’s business-critical to ensure your sponsor licence is not left to expire.

Sponsor licence expired: current system

It’s perhaps more common – and easy – than you may think for a sponsor licence to expire without the sponsor realising.

Sponsor licences are issued by the Home Office to employers for a period of four years. If the employer does not successfully apply to renew their licence in advance of the expiry date, the licence will automatically expire.

The Home Office automatically issues notifications prior to licence expiry by email to the organisation’s Authoring Officer (AO) and Level 1 user(s), as specified in the Sponsor Management System (SMS).

It’s a standard communication that usually reads:

Your sponsor licence was granted for an initial period of four years. We wish to inform you that this period will shortly come to an end and, unless you apply to renew your licence, it will expire on XX/XX/XXXX. 

In 30 days, the function to renew your licence will become available in SMS. If you want to continue to sponsor migrants, we strongly advise that you apply to renew your licence as soon as you are able and in any event at least one month before your licence expires.

No action is required by you at this time. You will receive another email in 30 days, notifying you that you are able to apply to renew your licence and providing further details of the licence renewal process. 

For more information, please refer to the sponsorship policy guidance and SMS user guides, which are available at:

https://www.gov.uk/government/collections/sponsorship-information-for-employers-and-educators.

Please do not respond directly to this email as responses are not monitored.

UK Visas and Immigration

A key assumption with this notification is that it will be received and read by the relevant individual(s) at the organisation.

While it is a requirement on sponsors to keep organisation contact details up to date on the SMS – the reality is this doesn’t always happen. The SMS may hold contact details for a previous legal adviser, or the AO may have moved on. The result – the sponsor doesn’t receive the notification and isn’t reminded of the impending deadline and licence expiry date.

What usually happens in these instances is the employer only learns that they no longer hold a valid sponsor licence when a Tier 2 employee makes an application to the Home Office for further leave to remain. It’s at this point when conducting their checks as part of the employee’s application that UKVI sees the expired status of the licence and takes subsequent enforcement action.

We’ve also taken many panicked calls from HR teams needing to secure the release of a Tier 2 employee, detained for attempting to re-enter the UK – without knowing that their employer’s licence has expired, which automatically compromises their immigration status.

A further concern is that the notification omits to specify the full consequences of failing to renew the licence. Think for example of smaller employers with no inhouse HR expertise or with only one Tier 2 employee – such businesses may not fully understand the urgency and ramifications of an expired licence.

Resolving the issues

If you’re made aware that your company’s sponsor licence has expired – the steps required to resolve the licence and related immigration problems can be complex, stressful and costly.

You will need to act fast. It may be a case of making an urgent application to the Home Office to renew your licence, or you may in the circumstances be better advised to apply for a new licence.

Your course of action will be largely determined by the wider context and fact pattern, how you have previously managed your licence and any other immigration-related issues. Seek advice as soon as you become aware of any problem with your licence to decide on the most appropriate strategy to mitigate damage.

Your visa holder employee(s) will also have to decide what to do next; whether to wait while their employer attempts to address the expiry the issue with the Home Office, or whether to find alternative, permitted employment with a new sponsor and make a new application for leave to remain before their curtailed leave expires. Failing that – they face having to leave the UK.

Tips for managing immigration compliance risk

Sponsor licence expiry is clearly an issue that all sponsor licence holders need to be aware of and take action to prevent, as part of the wider demands of sponsor licence holders’ compliance duties to support immigration control.

What do employers need to do?

The simplest step is for everyone involved in the licence management to diarise the date of licence expiry – AO, SMS users, HR director. The date can be found on the summary page of the SMS. Don’t rely on Home Office reminders.

Start to prepare your renewal application 6 months before expiry. You won’t be able to actually apply before this 6 month point, but having everything prepared and ready to go takes the pressure off and allows any issues to be picked up ahead of deadline.

Most importantly – compliance is an ongoing concern.

Where employers only come to look at their sponsor licence when a recruitment need arises – this creates inevitable risk of non-compliance and Home Office scrutiny and penalty.

Schedule regular checks of all details on the SMS and update your records.

Check the information that was originally submitted to UKVI. Are there any changes that need to be reported? Look across all areas – organisational details, information on key personnel and migrant workers – are all sponsored employees on there and are all of their details correct and up to date?

Recent case law relating to employers’ failure to keep their contact details up to date in the SMS and issuing CoS with incorrect details (such as an incorrect company address) has emphasised that the courts are supporting the Home Office in their enforcement action. Don’t expect sympathy or concession – breaching this duty is deemed sufficiently serious to justify revocation of the licence by the Home Office.

Employers should treat the PBS licence in the same way they treat self-certifying their accounts every year. It requires ongoing management.

 

Do you need help with an expired sponsor licence or tier 2 visa curtailment? DavidsonMorris can help!

Effective immigration compliance practices will avoid issues with the validity of your licence and the visas that depend on it.

We have substantial experience helping businesses resolve issues relating to an expired sponsor licence and PBS visa curtailed leave. We also offer training for inhouse HR and personnel involved in licence management on immigration compliance.  Speak with one of our immigration specialists for advice.

By | 2018-05-06T08:14:01+00:00 April 10th, 2018|Comments Off on Expired Sponsor Licence & Tier 2 Visa Curtailment of Leave