- 8 minute read
- Last updated: 26th October 2019
In the event that your sponsor licence application is refused or rejected by UKVI, this can have a hugely detrimental impact on your business operations and workforce planning. It is also likely to see your application fee lost.
While there is no right to appeal if your sponsor licence application has been refused, other options may be open to you depending on the circumstances and grounds for the Home Office’s decision.
This article covers:
- Refused or rejected?
- Licence refusal: next steps
- Is there a right of appeal?
- Is there a right to reapply?
- What is the Home Office looking for in a licence application?
- Can a licence be revoked?
If the Home Office decides not to grant you a sponsor licence, they will either refuse or reject your application.
Rejections tend to result from applications that are deemed invalid. For example, where there has been a failure to pay the correct application fee. The fee for a sponsor licence application will depend on the size of your company or organisation. If you have charitable status, or you are subject to the small companies regime, you may qualify for the small sponsor licence fee currently set at £536. Otherwise, the fee for medium or large sponsors will be £1476 for a Tier 2 licence, or for a Tier 2 and Tier 5 licence combined. The fee for a Tier 5 licence is still £536 regardless of the size or status of your business.
This is typically due to relatively minor issues that can be rectified by the applicant and the amended application submitted as a new application. Rejected applications are usually refunded.
A refused application however typically relates to more substantial or fundamental issues. Your options after receiving an application refusal will largely be determined by the grounds cited by the Home Office.
Frequently cited reasons for refusals include the following:
Late filing of supporting documents
Unless you are a public body recognised by the UK government, such as a local authority or a company listed on the London Stock Exchange Main Market, you will need to provide a minimum of four supporting documents from Appendix A. Depending on the nature of your business and the licence category sought, you may also require additional documentation in support. Having completed your sponsor licence application you will need to printout the submission sheet at the end and post this to UKVI, together with the correct supporting documents.
Your application will need to be accompanied by a number of supporting documents, including detailed documentation to demonstrate that you are a genuine company or organisation operating lawfully in the UK. This must be submitted within five working days of your initial application. Where the Home Office has requested further documents and these are not provided within the stipulated timeframe, the application will be refused.
Incorrect supporting documents
The rules relating to the grant of sponsor licence applications can be complex, not least in making sure that you comply with the documentary requirements under Appendix A. In fact, a failure to provide the correct documentation, or to do so within the time permitted, is one of the most common pitfalls when applying for a sponsor licence.
Any hardcopy documents in support of your application must be original or certified copies. In some cases, however, it may be possible for UKVI to verify your documentation online. If this is the case, you will need to send a covering letter with the website address where the information can be found.
Please note, in the event that you are unable to provide the necessary documentation in support of your application, or to do so in time, you risk your sponsor licence application being significantly delayed or even denied.
Falsified supporting documents
Where fraudulent or falsified documents have been submitted, the Home Office can refuse your application and, as a punitive measure, your organisation may be subject to a cooling-off period before you can reapply (see below).
Key personnel issues
Those responsible for the day-to-day running of your business and/or the nominated key personnel responsible for carrying out your sponsorship duties are found by UKVI to have a history of immigration violations and/or unspent criminal convictions for a relevant offence such as fraud or money laundering.
Failed compliance visit
Having conducted a site visit prior to the grant of any licence, UKVI are not satisfied that your HR systems and recruitment practices are adequate such that you are able to comply with your duties and/or that key individuals are not sufficiently trustworthy or capable of carrying out your sponsorship duties.
If you can identify an error in the processing of your application, you can request for the error to be corrected, for example, if they have overlooked a piece of submitted documentation. In such cases, you will need to notify the Home Office of the error within 14 calendar days from the date of the refusal.
In the event that your sponsor licence application is refused by UKVI, there is no right of appeal. However, if the sponsor licence application refusal was arguably unlawful, unreasonable or procedurally improper, then you may be able to apply to judicially review this decision.
Judicial Review is a process by which a judge reviews the lawfulness of a public body’s decision, examining the way in which the conclusion was reached, rather than evaluating the merits of the decision itself.
As such, even where there is scope to judicially review a refusal decision, this may not necessarily be the best course of action to take as the prospects of a successful outcome can be low, not least because you would have to demonstrate to the court that the decision is one that no reasonable body could have come to.
This is a highly complex area, and you are advised to take specialist guidance on whether a judicial review could be appropriate and open to you. You will also need to act quickly as judicial review applications have to be submitted within 3 months of the refusal decision.
Although there is no right of appeal, and judicial review of decisions can be challenging, you may be permitted to reapply straight away if the refusal was on the grounds of failure to provide documents or information requested by a deadline for reasons beyond your control or because the online application was submitted by a representative.
You will, however, need to check if a cooling-off period applies before you can submit a new licence application to UKVI. The length of the cooling off period can vary between six months to up to five years, depending on the reasons for the initial refusal.
In most cases there will be a standard cooling off period of six months from the date of the refusal letter. In particular, UKVI will refuse your further application if the previous refusal was because:
- You did not meet the criteria to be a sponsor in the category under which you applied
- You submitted false documents or acted in bad faith
- You do not have the processes necessary to comply with your sponsorship duties
- You have an unspent criminal conviction for a relevant offence
- You are legally prohibited from becoming a company director
- You had no trading presence in the UK.
In the event that your application was refused because you received a civil penalty for employing illegal workers, you will have to wait a period of twelve months after the date the penalty became payable before reapplying.
In some more serious cases, you can only apply for a new licence after five years have passed since the date the penalty was issued.
If you opt to reapply for a sponsor licence, ensure your new application addresses the specific grounds for the initial refusal.
To be eligible for either a Tier 2 or Tier 5 sponsor licence you will first need to show that your business is both genuine and operating lawfully within the UK. In this respect, you will be required to provide verifiable documentary evidence from Appendix A of the guidance for sponsors. Additional documents may be helpful and valuable in evidencing your eligibility, such as organograms.
Further, when submitting your sponsor licence application, you will be required to nominate key personnel to undertake the duties and obligations as required under the licence. As such, these individuals, as well as those involved in the day-to-day running of your business, must be honest, dependable and reliable. Rules also apply as to who can take on the key personnel roles; level 1 users must, for example, be an employee, partner or director of the organisation.
Finally, you must be able to show that your business has both adequate human resource systems and recruitment practices in place to meet the necessary sponsorship duties on an ongoing and consistent basis. This will include keeping suitable records of your employees, carrying out right to work checks and reporting any changes in migrant worker circumstances.
Please note, if you are applying under the Tier 2 (General) category, you will also need to demonstrate to UKVI that you can offer genuine employment that meets the Tier 2 (General) skill level and appropriate rates of pay.
If you are reapplying having already been refused, you should expect to receive a compliance visit from the Home Office on submission of your new application. Officials will be looking for confirmation that you have the necessary processes, systems and policies in place to support ongoing licence compliance and for assurance that the initial grounds for refusal have been adequately addressed.
Even if your sponsor licence application is approved, you may still be at risk of having your licence revoked, not least if you fail to comply with your sponsorship duties or you otherwise pose a threat to immigration control.
You will initially be granted an A-rated sponsor licence, following which you can start assigning CoS to migrants who you wish to work for you. You will also be given access to the Sponsor Management System (SMS). This is an online portal where you can manage your licence and report certain migrant activities, for example, if an individual fails to report to work.
However, if you are found to be in breach of your duties, UKVI may decide to downgrade your licence to a B-rating. This will require you to pay for a sponsorship action plan to reinstate your original A-rating. That said, in serious cases, UKVI may decide to suspend or revoke your licence altogether.
Please note, even if your sponsor licence is not revoked, it will only remain valid for a period of four years after which you will need to apply to renew it.
In the event that your sponsor licence application is refused by UKVI, this can have a hugely detrimental impact on your business if you are recruiting skilled migrant workers. The application process is demanding and costly for employers, particularly where they have already found a suitable candidate to hire under the Tier 2 skilled worker visa. A delayed or refused application can mean losing out on your candidate and loss of your investment in the recruitment process to date.
Given what is it at stake, it will be important to understand your options if you have received a refusal from the Home Office.
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. With our compliance audit service you can help ensure your organisation stays ‘match ready’ in the event of a Home Office compliance visit.
If you have a question or need help with a sponsor licence application, contact us.