Failure to meet the sponsorship requirements when applying for a sponsor licence can result in a refusal decision. Equally, even if approved for a sponsor licence, there are various ongoing sponsorship obligations that are imposed on employers, where a failure to comply with these obligations can potentially result in a revoked licence. In either scenario, the employer may be facing a mandatory cooling off period before being able to reapply for a licence to sponsor migrant workers.
The following guide for employers on the rules relating to sponsor licence cooling off periods looks at the circumstances in which a cooling off period applies and for how long. We also look at the impact of any cooling off period on both those wanting to sponsor migrant workers, and on any prospective or existing migrant workforce. Still, there are various ways in which cooling off periods can be avoided, where we set out some best practice tips on avoiding having a cooling off period imposed in the first place.
When does the sponsor licence cooling off period apply?
To be able to sponsor migrant workers, unless they are settled or otherwise have permission to work in the UK, employers must have a suitable sponsor licence in place. However, it is important that when submitting an application for a sponsor licence that the relevant sponsorship requirements can be met and the application is fully supported by the necessary documentation. This is because if the application for a sponsor licence is refused by UK Visas and Immigration (UKVI) — where UKVI is the Home Office department responsible for making sponsor licence decisions — the employer may not be eligible to make any further application until a specified period of time has elapsed following their refusal decision. This is commonly referred to as a ‘sponsor licence cooling off period’.
Equally, even if approved for a licence, there are various ongoing sponsorship obligations that must be met, where any failure to comply with these obligations can result in the loss of the sponsor licence, known as revocation, and again the possibility of a cooling off period. The sponsor licence cooling off period may also apply where the employer:
- withdrew their licence application while UKVI were undertaking checks on them and it is likely that UKVI would have refused that application had the employer not withdrawn it
- previously held a sponsor licence and they surrendered it while UKVI was taking compliance action against them, in circumstances where it would have been revoked as a result of that compliance action
- has been issued with an applicable civil penalty or charge
- has an unspent conviction for a relevant offence.
How long is the sponsor licence cooling off period?
The length of time that the sponsor licence cooling off period will apply will depend on the reason for the imposition of the cooling off period in the first place, where there may be no cooling off period in certain scenarios, meaning that the employer can reapply at any time. However, where a cooling off period applies, and an application for a sponsor licence is made while the employer is still subject to that period, UKVI will automatically refuse their application, even if the reasons that led to the cooling off period no longer apply.
Official guidance on how to apply for a sponsor licence, including the rules around cooling off periods, can be found online at GOV.UK within the Workers and Temporary Workers – Guidance for Sponsors Part 1: Apply for a Licence. This includes a useful table setting out the length of the cooling off period according to the circumstances, including:
No cooling off period
- The sponsor licence application was refused (or would have been refused had the employer not withdrawn it) because the application was sent by a representative
- The sponsor licence application was refused (or would have been refused had the employer not withdrawn it) because the employer did not provide any documents or information requested by UKVI within a specific deadline for reasons outside their control
- The sponsor licence application was refused (or would have been refused had the employer not withdrawn it) because the employer applied to be licensed on the Scale-up route and their application was refused solely because they did not meet the definition of a qualifying Scale-up sponsor.
6-month cooling off period
The employer’s previous application was refused (or would have been refused had they not withdrawn it) for any reason not otherwise mentioned in the guidance table. In these cases, the 6 months will run from the date the application was refused or the date that UKVI notified the employer that they had accepted the employer’s withdrawal request.
12-month cooling off period
- The employer previously held a sponsor licence and it was revoked (or it would have been revoked had they not surrendered it)
- The employer has been issued with a civil penalty for employing an illegal worker under either section 15 of the Immigration, Asylum and Nationality Act 2006 or regulation 11 of the Accession of Croatia (Worker Authorisation) Regulations 2013 — and the penalty has been paid by the employer in full
- More than one civil penalty has been issued to the organisation’s owner, a director or authorising officer under sections 23 or 25 of the Immigration Act 2014 for authorising occupation of residential premises by an adult disqualified by reason of their immigration status (in breach of the right to rent scheme) — but the penalties have been paid in full.
In the first scenario, the 12 months will run from the date of the notice informing the employer that their licence had been revoked (or the date UKVI notified the employer that they had accepted the employer’s request to surrender their licence). In the second and third scenarios, the 12 months will run from the date the penalty or penalties were paid.
Importantly, where reference is made to civil penalties issued to “an owner, a director or authorising officer”, this means civil penalties issued to those persons either individually or collectively. As such, if an owner and the authorising officer have each been issued with a single civil penalty, this will count as two civil penalties against the employer’s organisation.
Additionally, UKVI will not grant a sponsor licence while an employer, owner, director or authorising officer has an outstanding unpaid civil penalty or charge (as set out above) for which they are still liable once any objection and appeal rights have been exhausted.
5-year cooling off period
The employer has been issued with a civil penalty or charge under either sections 32 or 40 of the Immigration and Asylum Act 1999 (for carrying clandestine entrants or for carrying passengers without proper documentation), or under section 24 of the Counter-Terrorism and Security Act 2015 or the Authority to Carry (Civil Penalties) Regulations 2015 (for bringing a passenger to the UK in breach of an authority to carry scheme) — but any penalty or charge imposed has been paid in full.
In these circumstances, the 5 years will run from the date the penalty or charge was paid.
UKVI “may” also impose a cooling off period for up to 5 years after the date that any civil penalties were paid in full where either the employer has been issued with two or more penalties for employing illegal workers or, alternatively, where three or more civil penalties have been issued to either the owner, a director or authorising officer of the employer’s organisation (either individually or collectively) under the right to rent scheme. UKVI will take into account a number of factors here, including the number and amount of penalties imposed; how soon these penalties were paid or the level of compliance with any instalment agreement; the number of illegal workers or disqualified adults involved; and the extent to which the employer co-operated with UKVI or other relevant authorities.
Until a conviction is spent
If the employer has an unspent conviction for a relevant offence, where their application is refused or an existing licence is revoked because of this, the sponsor licence cooling off period will run until the conviction is spent under the Rehabilitation of Offenders Act 1974. Any reference to the “employer” includes any owner, director, key personnel nominated on the licence application or any person involved in the day-to-day running of the business.
If an unspent conviction for a relevant offence is recorded against any one of these individuals in the employer’s organisation, the employer can only reapply for a licence before the conviction is spent in certain circumstances. This includes if that person no longer works for the employer; is no longer the business owner, or acting as a director, one of the key personnel or someone involved in the day-to-day running of the business; or does not otherwise have significant involvement in the running or financing of the business.
What happens if there is more than one cooling off period?
Where more than one sponsor licence cooling off period is relevant to the employer’s circumstances, the longest cooling off period will apply. For example, if an application is refused because the employer fails to meet all of the requirements of the route in which they were applying ‘and’ because they have recently been issued with a civil penalty for employing an illegal worker which they are still paying off in agreed instalments, they will not be eligible to make a licence application until 12 months have elapsed since they have paid the civil penalty in full. A shorter 6-month cooling off period applies to the failure to meet the route-specific requirements, but the longer cooling off period overrides this.
In contrast, if an application is refused, again because the employer fails to meet the route-specific requirements ‘and’ because they have previously been issued with a civil penalty for employing an illegal worker, but this was paid in full 10 months ago, the 6-month cooling off period will apply, as the cooling off period for the civil penalty will expire in 2 months.
Impact of cooling off period on sponsors and workers
If a sponsor licence is refused or revoked, and a cooling off period is imposed, this can have a significant impact on both the sponsoring organisation and any prospective or existing migrant workers. For workers looking to come to the UK to work in a sponsored job role for that organisation, they will no longer be eligible to apply for a visa, while those already working for that organisation in the UK will have to leave their job and possibly the UK.
Even after a cooling off period has expired, an employer is not guaranteed the grant of a sponsor licence, where they must ensure that the reasons UKVI refused (or would have refused) their previous application, or revoked (or would have revoked) their previous licence, no longer apply. An UKVI compliance officer may conduct a pre-licence compliance check to establish that the employer has the necessary systems and procedures in place to meet their sponsorship obligations. If UKVI is not satisfied that the employer can fully meet their sponsorship obligations, or that they otherwise remain unsuitable to hold a sponsor licence, their application will be refused and subject to a further cooling off period.
How to avoid having a cooling off period imposed
To avoid having a cooling off period imposed, this generally means taking steps to avoid having a licence application refused or revoked. As such, the key lies in fully understanding the sponsor licence application or sponsorship process, and having systems in place to ensure that the obligations imposed on the organisation can be satisfactorily met. This includes, but is not limited to, conducting prescribed right to works on all new recruits.
Employers should also exercise caution when nominating those individuals who will be responsible for managing the sponsorship process. Referred to as the key personnel, the employer should only nominate reliable and trustworthy individuals, ensuring that they too fully understand the employer’s obligations in the context of sponsoring migrant workers, and that they comply with the relevant sponsorship rules and requirements at all times.
DavidsonMorris are UK business immigration specialists. For expert guidance on a sponsor licence application, or relating to Home Office penalties and enforcement which may render you subject to a cooling off period, contact us.
Sponsor licence cooling off period FAQs
What happens if my sponsor withdraws UK?
If your sponsor decides to surrender their licence, you will lose your permission to be in the UK in your sponsored job role. However, you may be eligible to apply for a different visa that still allows you to work.
Can you cancel a certificate of sponsorship UK?
A certificate of sponsorship will be cancelled if your sponsor loses their licence, where you would need to leave your job and possibly the UK, unless you are eligible to make a new visa application before being required to leave.
Can companies cancel sponsorship?
It is possible for companies to cancel their ability to sponsor migrant workers by surrendering their licence. Individual sponsorship can also be cancelled by UKVI if a migrant worker is reported by their employer for breaching their conditions of stay.
Had a sponsor licence revoked in the last 12 months?
If you have had a sponsor licence revoked in the last 12 months, you may be able to reapply, although much will depend on the circumstances surrounding the revocation, where different sponsor licence cooling off periods apply.
Last updated: 30 December 2023