The role of key personnel in managing an organisation’s sponsor licence can’t be underestimated in ensuring compliance with the employer’s duties under its sponsor licence. The management of the sponsorship licence is conducted through the sponsor management system and therefore it is essential that the key personnel, in particular any level 1 user(s), are able and competent in using the system.
The sponsor management system is an online tool that allows level 1 and level 2 users to administer the licence and ensure compliance with the immigration rules and prevent abuse of the system, in particular by keeping up-to-date records and reporting certain activities to the Home Office, such as non-attendance or the disappearance of a migrant worker.
It is a critical tool for the Home Office. It relies on the information contained in the system to monitor sponsors and their migrant workers. As such, it requires that the data is maintained and kept up to date at any one time.
Role of the level 1 user
The level 1 user(s) will usually be the person or people who are undertaking the company’s day-to-day immigration work.
Level 1 users have full access to the SMS, from which all functions of your licence are operated:
- Undertaking routine sponsorship activities, including assigning Certificates of Sponsorship (CoS), reporting migrant activity and changes of circumstance, request CoS, apply for and assign restricted CoS
- Viewing information about your licence, notify UKVI of changes to your organisation
- Applying to renew your licence and track the progress of your application
You must always have at least one Level 1 user in place, who can access the SMS to carry out these tasks.
Who can hold the position of SMS level 1 user?
In the original sponsor application, companies can only nominate one Level 1 user and this person must be an employee or an office holder ie a Director, Trustee, Company Secretary.
Once the licence has been granted, it is possible to appoint more Level 1 users, including a company Representative or other members of staff. UKVI recommend that you keep numbers to the minimum necessary for effective business operation.
There can be more than one SMS level 1 user, although at least one must be a paid member of staff or an office holder. An employee of a third party organisation who assists with the organisation’s HR functions, or a UK based legal representative, can also act as an SMS level 1 user.
Further, to be eligible to act as an SMS level 1 user, or in any other key personnel role, you must fulfil the following criteria:
- You must be permanently based in the UK for the duration of the period that you will fill the role.
- You must not be a contractor or consultant contracted for a specific project.
- You must not be subject to a bankruptcy restriction order or undertaking, or a debt relief restriction order or undertaking.
- You must not have a history of non-compliance with sponsor requirements.
As an SMS level 1 user, your suitability will also be checked with reference to any criminal history. You may not be suitable to act in the following circumstances:
- You have an unspent criminal conviction
- You have been fined by UKVI in the past 12 months
- You have been reported to UKVI
- You have broken the law
- You have been a key person at a sponsor that had its licence revoked in the last 12 months
- You have failed to pay VAT or other excise duty.
Can key personnel hold multiple roles under the licence?
The level 1 user will carry out the day-to-day activities using the sponsor management system, together with level 2 users, although the latter will have fewer permissions on the system than level 1 users. A level 2 user can only assign certificates of sponsorship and report worker activity.
Key personnel roles can be filled by the same person, or a combination of different people, although there can only be one authorising officer and one key contact. However, one or both of these individuals can also be appointed as a level 1 user.
Further, given that only level 1 and level 2 users will have access to the system, if the authorising officer or key contact require SMS access, they must be set up as either a level 1 or 2 user.
SMS Level 1 user duties
As a level 1 user you can access all applicable functions on the sponsor management system and perform a wide range of actions. Your duties as a level 1 user include the following:
- Requesting additional level 1 users, or adding or removing level 2 users. Level 2 users can be appointed by level 1 users, but only once the sponsorship licence and SMS access has been granted.
- Renewing sponsorship licence applications and tracking the progress of any such application. If the licence is allowed to expire, access to the sponsor management system will be denied.
- Creating, assigning and withdrawing certificates of sponsorship. You should only assign certificates of sponsorship to migrants who are appropriately qualified, registered and/or experienced to do the job.
- Viewing the online message board, whereby the Home Office will notify the level 1 user of important events during the lifespan of the sponsorship licence including, for example, when the licence is due to expire.
- Paying for and tracking the progress of action plans imposed by the Home Office in the event that the sponsor licence rating has been downgraded for any previous breaches.
- Updating the sponsor management system with contact details for migrant workers, including an up-to-date UK residential address, landline and mobile number, or any other relevant changes, including changes to the organisation.
- Reporting certain activities relating to migrant workers, for example, non-attendance, non-compliance or disappearance.
Also note that SMS users are prohibited from sharing their password with anyone else; this can result in punitive action against you.
Duties to report PBS worker activities
An SMS level 1 user is under a duty to report various migrant activities and to do so within a strict time frame. In particular, the following matters must be reported within ten working days:
- Where a sponsored migrant does not turn up for their first day of work, including any reason given for their non-attendance.
- Where a sponsored migrant is absent from work for more than ten consecutive working days, without any reasonably granted permission.
- Where a sponsored migrant’s period of engagement is cut short, either as a result of the migrant resigning, being dismissed or where any registration required for working in the UK, such as with a governing body, comes to an end.
- Where the organisation stops sponsoring a migrant for any other reason, for example, they have moved into an immigration route that does not need a sponsor.
- Where there are significant changes in the sponsored migrant’s circumstances, for example, a promotion or change in salary.
- Where information has come to light suggesting that a sponsored migrant is breaching the conditions of their leave.
- Where the size of the business changes from small to large, or vice versa.
Where there are any other significant changes to the organisation, for example, if the business is involved in a corporate restructure or change of ownership, this must be reported within twenty working days.
Consequences of breaching your duties
In the event of a breach of the duties under the sponsor licence, there are various measures that can by taken by the Home Office, from downgrading the licence rating to suspending or even revoking the licence altogether.
Where a migrant worker is found to be working illegally, your employer may be subject to a significant civil penalty or even criminal prosecution.
It is therefore essential that as an SMS 1 user, you regularly access the system to review and update your licence details. In addition, it is also important to keep informed of any changes made by the Home Office to the rules and adapt your processes and policies accordingly.
Question about being a Level 1 user?
DavidsonMorris are specialist immigration compliance advisers to businesses. We work with employers at all stages of their licence to support with compliance, management and applications such as licence renewals. We also provide training on managing your licence, including SMS training for SMS level 1 & level 2 users.
If you have a question about how to manage your licence effectively to avoid Home Office scrutiny, contact us.