As a Tier 2 sponsorship licence holder, you will need to understand the nature of your duties and how to comply with these.
Falling short of the required standards and obligations puts your organisation at risk of Home Office enforcement action, with penalties including licence downgrade, suspension or revocation and substantial fines. The implications are significant – disrupting operations, hitting finances and damaging reputation.
What do employers need to do to avoid enforcement action and remain compliant with their duties as a tier 2 sponsorship licence holder?
Why do Tier 2 sponsorship licence holders have compliance duties?
A Tier 2 sponsorship licence is the permission granted to you as a UK employer to sponsor skilled foreign workers from outside the European Economic Area (EEA) and Switzerland wanting to work in the UK.
Tier 2 of the points based system is the primary immigration route for skilled non-EEA workers. In particular, this enables employers to recruit non-EEA nationals to fill jobs that cannot be filled by a suitably qualified or skilled settled worker. This includes workers coming to the UK to fill shortage occupations, ie; where there are not enough skilled workers in the domestic labour market to meet demand.
Tier 2 also enables employers to transfer existing employees who are non-EEA nationals to a UK branch. This is known as an Intra-Company Transfer visa.
As such, to be able to benefit from accessing the global talent market, employers looking to sponsor skilled migrant workers must, as a trade-off, satisfy compliance duties under the sponsorship licence.
And given the complexities of the requirements under the Tier 2 route, in respect of the employer, the employee and the role being recruited for, the Home Office relies on employers performing these duties and maintaining adequate records to avoid illegal working.
As a licensed sponsor you are agreeing to meet all of the duties associated with sponsoring a migrant worker. In particular, you are under a duty to ensure compliance with the immigration rules and prevent abuse of the system.
You must have adequate human resources systems in place to meet these obligations.
The Home Office continues to make use of immigration ‘raids’ and announced site visits to evaluate a sponsor’s compliance and verify the suitability of an employer’s HR systems at any stage during the licence’s validity.
What are the Tier 2 sponsorship licence duties?
The primary duties as a Tier 2 licensed sponsor include, but are not limited to, the following:
- Record keeping duties – you must maintain accurate and up-to-date records for any migrant worker that you sponsor, including their contact details, UK residential address and any telephone number. You must also retain copies of any documents to prove their entitlement to work in the UK and undertake the work in question, eg, their immigration status document and biometric residence permit.
- Monitoring duties – you must track and record employee attendance to ensure that any migrant worker is in fact complying with the terms of their Tier 2 visa.
- Reporting duties – as a licensed sponsor you are under a strict duty to report certain migrant activities such as regular non-attendance, non-compliance or disappearance.
- Cooperating with the Home Office – such as in response to requests for documentation or providing access during site visits. The duty to co-operate includes acting honestly in any dealings with the Home Office, such as not making false statements.
- Complying with the law – such as conducting regular right to work checks on all prospective and existing employees to ensure that they are entitled to be in the UK and undertake the work in question. In this way, you will not only help to prevent illegal working but, in so doing, help to avoid any civil or criminal penalty for employing an illegal worker (see below).
Having been granted a Tier 2 sponsorship licence you will be given access to what’s known as the Sponsor Management System (SMS) run by the Home Office.
This is an online tool that allows you to administer your day-to-day sponsor activities, such as assigning certificates of sponsorship. It will also allow you to report any changes in the circumstances of an individual worker.
Who is responsible for the Tier 2 sponsorship licence duties?
As a licensed sponsor you are required to allocate certain responsibilities to key personnel within your organisation, some or all of whom will have access to the SMS once your Tier 2 sponsorship licence has been granted.
The authorising officer is the person responsible for the activities of all SMS users and ensuring that all of your sponsorship duties are met.
If either the authorising officer, or any system user, fails in their duties, the organisation as a whole will be accountable to the Home Office.
You should always exercise a degree of caution and carry out any necessary background checks to ensure that the individuals who you chose to appoint as your key personnel are honest, dependable and reliable, and do not represent a threat to immigration control.
What are the penalties for non-compliance?
In the event that you fail to comply with your sponsorship duties, you are at risk of action being taken against you by the Home Office. There are various measures that may be taken, including but not limited to downgrading your sponsor licence rating.
When you are first granted a Tier 2 sponsorship licence, you will be placed on the register of sponsors and given an “A” licence rating. Any failure to comply with your duties as a licensed sponsor could result in your Tier 2 licence rating being downgraded to a “B” rating.
If your licence rating is downgraded, you will be required to pay for an action plan at a cost of £1,476 to help reinstate your “A” licence rating.
In circumstances where there has been a significant or systematic failing, and you pose a serious threat to immigration control, you are also at risk of your licence being suspended or even revoked.
Moreover, employers who are found to be employing illegal workers face harsh civil financial penalties and even criminal prosecution.
By law you are required to carry out right to work checks on the foreign workers that you sponsor to ensure that they are legally entitled to work in the UK and to undertake the work in question.
If migrants are found to be working illegally in circumstances where you have failed to carry out the prescribed document checks, you are at risk of a civil penalty of up to £20,000 per illegal worker, or even criminal prosecution potentially resulting in imprisonment or an unlimited fine.
Do you have a question about Tier 2 sponsorship licence duties?
The Immigration Rules are notoriously complex and subject to frequent change. Further, the consequences of failing to comply with your Tier 2 sponsorship licence duties can have serious consequences for your business, not least the possibility of a Tier 2 worker’s leave being curtailed, or a civil penalty being issued where a migrant worker is found to be working illegally.
Taking a proactive approach to compliance risk management is the most effective way to meet your duties on a consistent and sustained basis.
As experienced business immigration specialists, we can advise you on all aspects of your Tier 2 sponsorship licence duties, helping you to stay fully compliant at all times. We offer audits, training and consultancy services to support your organisation in all aspects of managing – and retaining – its tier 2 sponsorship licence.
We can also help with Home Office investigations and mitigating any potential liability for any failure on your part to comply with your duties.
For advice on your licence compliance, contact us.