Tier 2 Sponsorship
With Tier 2 visa sponsorship, companies are permitted to hire skilled workers from non-EEA countries where the role and level of pay meet current requirements. The ability to access the global talent market does however come at a cost for employers.
Companies employing workers through Tier 2 visa sponsorship must observe a number of ongoing legal requirements in relation to the recruitment and onboarding of non-EEA workers under the UK points-based system.
When applying to the Home Office for your sponsorship licence, the organisation’s capability to meet these duties will be assessed, and only if the Home Office is satisfied that you meet these standards will you be granted the sponsor licence.
Sponsors then remain subject to ongoing compliance duties for the 4-year duration of their licence validity, requiring continued management, expertise and budget. Failure to meet the Tier 2 visa sponsorship duties can attract Home Office penalties and impact the company’s ability to employ PBS workers lawfully.
- 17 minute read
- Last updated: 7th January 2020
- What is Tier 2 sponsorship?
- Making a Tier 2 sponsorship application
- Tier 2 skill requirements
- Tier 2 salary requirements
- Recruitment requirements
- Candidate requirements
- Tier 2 sponsorship compliance duties
- Who is responsible for ensuring compliance?
- What are the penalties for non-compliance?
If you are a UK employer looking to recruit a skilled worker from outside the European Economic Area (EEA) or Switzerland to fill a job that cannot be filled by a suitably qualified or skilled settled worker, you will need to understand all about Tier 2 sponsorship.
Employing a Tier 2 visa worker requires a company to hold a valid sponsorship licence, and for the role and candidate to meet certain eligibility requirements. A Tier 2 sponsorship licence is the permission granted to you as a UK employer to sponsor skilled foreign workers wanting to work for your organisation in the UK under the Tier 2 visa route.
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.
To apply for a Tier 2 Licence UK employers must prove that:
- They are a genuine organisation operating lawfully in the UK.
- Their key personnel named on the application are honest, dependable and reliable.
- They are aware of and capable of carrying out their sponsor duties ie they have appropriate human resources and recruitment systems and practices in place.
- They are offering genuine employment that meets the Tier 2 (General) skill level and appropriate rates of pay.
Companies must complete an online application and provide supporting documentation to meet the necessary evidentiary requirements. This must be supplied within five days of the initial application being submitted. Failure to submit all required documents will result in an application being delayed or rejected and further costs being incurred.
Following the receipt of these documents, the company may then be subject to a compliance visit from UK Visas and Immigration, who will assess whether or not to grant the licence.
Companies will also be required to comply with the illegal working requirements which states that all non-EU employees are required to provide documentation that proves their right to work before being employed by a UK company and copies of this information must also be retained by the employer.
When recruiting a non-EEA migrant worker, save except where the job appears on the shortage occupation list under Appendix K of the Immigration Rules, in most other cases the offer of a job must satisfy the requisite skill requirements as set out under Table 2 of Appendix J.
Appendix J sets out the codes of practice for skilled work for UK sponsors using what’s known as the Standard Occupational Classification (SOC). SOC codes are used by the government to classify jobs according to their titles and activities.
When assigning a certificate of sponsorship, the employer must choose the most relevant SOC code for the job that the sponsored employee will fill, thereby confirming that the role meets the required skill level.
If the migrant worker is applying for a Tier 2 General visa, the job will usually need to be Regulated Qualifications Framework (RQF) level 6 or above, although there are separate skill levels, and rates of pay, for various creative sector occupations. By way of example, for actors, entertainers, presenters, artists, authors, dancers, choreographers, as well as product and clothing designers, the job need only be skilled to RQF level 4 or above.
With the relevant SOC code selected, the employer can then assign a valid certificate of sponsorship to the non-EEA migrant worker under their Tier 2 General sponsorship licence.
However, the certificate must not only confirm that the job is suitably skilled, but also that the applicant will be paid at or above the appropriate rate for that job. The SOC codes typically list two different salaries, a new entrant rate and an experienced worker rate.
By way of example, for a marketing and sales director the new entrant rate is £32,000, and the experienced worker rate is £49,900. Further, the absolute minimum salary rate for new entrants under the Tier 2 General route is £20,800, and at least £30,00 for experienced workers or the experienced worker rate for the job role, whichever is higher.
In addition to satisfying the relevant skill requirements and minimum salary threshold, in the majority of cases a Tier 2 sponsor must also conduct what’s known as the resident labour market test (RLMT).
This means that the job the employer wants to recruit for must be advertised domestically to give settled workers a chance to apply. The licensed sponsor must then go on to show that no suitable settled worker is available to fill the job or, alternatively, that the job is exempt from the RLMT.
Any job that appears on the shortage occupation list does not need to be advertised before it can be offered to a non-EEA migrant worker. This list includes those skilled jobs where the shortages of resident workers are most severe, and where the consequences of those shortages are most serious.
When carrying out the RLMT, two adverts must be placed in the UK for at least 28 days, in most cases in at least two suitable advertising mediums. The employer must also be able to show, with reference to its recruitment processes that a suitably qualified or skilled settled worker already living permanently in the UK could not be found. Settled workers will not be considered unsuitable on the basis that they lack qualifications, experience or skills that were not specifically requested in the job advertisement.
To satisfy the RLMT requirement the employer will need to provide the selection criteria against which any candidates have been assessed, matching the essential criteria outlined in the job advertisement. The employer must also retain copies of all CV’s and applications for applicants short-listed for final interview, together with any interview notes that justify the appointment of the selected candidate.
If applying as a skilled migrant worker under the points based system, to be eligible for a Tier 2 General visa the applicant must score a minimum of 50 points for attributes under paragraphs 76 to 84A of Appendix A of the Immigration Rules.
These points comprise of having a job offer that passes the resident labour market test, or is exempt from that test, and being paid the appropriate salary for the job role in question. Needless to say, the applicant will need to be suitably qualified for that role, having provided their prospective employer with evidence of their qualifications and/or experience.
The applicant must also accrue a minimum of 10 points under paragraphs 1 to 18 of Appendix B, and a further 10 points under paragraphs 4 to 5 of Appendix C. These refer to the applicant’s ability to prove their knowledge of English, and to be able to support themselves financially on arrival in the UK.
Under the English language requirement the applicant can prove their knowledge of English by either passing an approved English language test with at least CEFR level B1 in reading, writing, speaking and listening, or by having an academic qualification that was taught in English and is recognised by UK NARIC as being equivalent to a UK bachelor’s degree, master’s degree or PhD.
The applicant may be exempt from this requirement if they are a national from a majority English-speaking country.
Under the maintenance requirement, the applicant must have £945 in their bank account for 90 days before they apply for a Tier 2 visa, although they will not need to prove this where they have a fully approved UK sponsor who can give them a guarantee of at least £945 to cover their costs for the first month if they need it. This will need to be confirmed on the certificate of sponsorship.
Please note, where an applicant is applying as a Tier 2 General migrant, and the job they are being sponsored to do falls within certain occupation codes within the healthcare, education and social care sectors, in other words, where they will be working with vulnerable people, they must also provide a valid criminal record certificate. This must be issued by the relevant authority in any country in which the applicant has been present for 12 months or more, whether continuously or in total, in the past 10 years.
Please also note, once a Tier 2 visa has been granted to an applicant, they will be prohibited from undertaking any employment save except for working for their UK sponsor in the job role that the migrant is being sponsored to do, and as set out in their certificate of sponsorship.
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.
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.
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.
The primary duties as a Tier 2 licensed sponsor include, but are not limited to, the following:
|Record keeping||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||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||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||Auch 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.|
|Compliance with immigration rules||You have been compliant with UK immigration rules throughout the qualifying period.|
Tier 2 visa sponsorship record keeping
Your organisation is required to maintain records relating to your PBS workers and their current right to work in the UK documentation, NI numbers (where applicable), history of and up to date contact details.
Retain evidence of the recruitment process for the Tier 2 role and proof of satisfying the Resident Labour Market Test including the advertising campaign, interview notes, list of all applicants and reasons for rejection and references for the selected applicant.
Your organisation is required by law to retain the following throughout the duration of employment:
|Documents to retain|
|ID Section of Passport|
|Biometric Residence Permit front & back|
|NI Number unless they are exempt from requiring one|
|Police Registration Certificate if applicable|
|Up-to-date contact details, residential address, telephone/mobile number|
|Contract of employment|
|Summary of the Certificate of Sponsorship|
|Copy of the advert for the Resident Labour Market test (if applicable)|
|Job description outlining the duties and responsibilities of the post including the skills, qualifications and experience required for the post|
|Qualifications to confirm the skill level|
|Registration and/or professional accreditation documents|
|Evidence of the candidate shortlisting process|
|Copy of all reports submitted to the Home Office regarding change of circumstances|
There is no prescribed method for storing the documents. They can be kept either as paper copies or in an electronic format. You must however be able to make the documents available to UKVI on request.
All documents must be kept for whichever is the shorter period of either:
- One year from the date you end your sponsorship of the migrant; or
- If the migrant is no longer sponsored by you, the point at which a compliance officer has examined and approved them.
Sponsor licence holders are legally obliged to retain the following during the duration of employment:
- Copy of pay-slips, clearly showing the name, NI number, tax code and any allowances and deductions made
- Records of absences
Tier 2 visa sponsorship duty to report
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.
As a UK sponsor licence holder, you operate under a legal requirement to inform the Home Office of certain organisational and employee changes via the online Sponsor Management System (SMS).
UKVI relies on the information held on the SMS to monitor and communicate with all 27,000+ PBS licence holders, as such, there are penalties for those employers that fail to comply and fail to keep their records updated. The Home Office has powers to downgrade, suspend or revoke your licence. This has the potential to impact your current sponsored migrant employees and your ability to recruit and employ sponsored migrants in future.
If your licence is downgraded you will be required to pay a fee to UKVI for an action plan identifying the issues that you must remedy in order to be upgraded back to A-status.
If your licence is revoked you may be barred from applying for a new licence for a six month ‘cooling off period’.
Sponsors are legally required to inform UKVI in writing within 10 working days should any of the following arise:
- Termination of employment
- Any significant changes to the terms of employment such as relocation to another site or division within the company, change in salary, change in working pattern
- Absence without permission for period of 10 days or more
- Any other matter which the sponsor believes may impact on a person’s eligibility to work in the UK
Employee change of circumstances
Track and monitor sponsored individuals, ensuring all PBS employee absences are authorised, including sickness, annual leave, study leave and overseas travel. You are required to report within 10 working days if the sponsored individual:
- Fails to start work when expected
- Has 10 days of consecutive unauthorised absence
- Has their contract terminated earlier than expected, i.e. resignation or
- Moves into another immigration category.
You are also required to report to the Home Office any suspicions and evidence that an individual is breaking the conditions of their stay in the UK.
Change of Authorising Officer
UKVI see the Authorising Officer as their key point of contact with your company, even if they aren’t involved in the day-to-day work of immigration.
It’s essential that you have an Authorising Officer in place at all times. That means if the current incumbent leaves the company, or relocates overseas, or goes on sabbatical or maternity leave, you need to appoint someone else to fill the role, even where on a temporary basis to ensured continuity of the cover.
Opening or closing a UK branch
If your company has moved address, the Home Office needs to know. Unannounced site visits remain common, requiring current addresses for immigration enforcement officials to attend and carry out inspections.
However, details of UK branches are not published on the SMS. This can make it difficult for employers to keep track of which addresses are in the licence.
Maintaining clear, internal records and making sure these are amended every time a branch is opened or closed is the most effective way to ensure the licence is kept up to date.
The same applies when establishing or closing an overseas branch, subsidiary company or linked entity. As with UK branches, overseas branches and subsidiaries are also not viewable on the SMS, making it challenging to know exactly which overseas companies are covered by your licence. Best practice is to update UKVI each time a linked entity overseas is established or closed.
In any event, you must have informed the Home Office before you can look to transfer an employee from that overseas company to the UK.
For groups that are prolific in opening new overseas branches or companies, programming in the submission of an update to UKVI every quarter, or yearly as appropriate can help to ensure compliance.
Such changes will generally have complex implications for your sponsor licence, for example you may need to submit a new licence application within the 28-day timeframe. We would strongly suggest that you take expert advice on what is needed, at an early a date as possible.
Other significant changes to the company
Takeovers, acquisitions, mergers and TUPE transfers are all examples of significant organisational changes which are to be reported to UKVI usually within 28 days of the change happening.
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.
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.
Need assistance with Tier 2 sponsorship?
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.
DavidsonMorris are specialist UK business immigration lawyers. We work with employers in the UK or looking to set up operations here to help hire and onboard talent through the sponsorship application process and Tier 2 visa route. We understand the importance of a smooth and quick recruitment and onboarding process to avoid missing out on the ideal candidate.
We support companies with their sponsor licence application, from eligibility through to ongoing compliance, licence renewal applications and dealings with the Home Office. We can also support with Tier 2 visa applications for your PBS workers.
For advice about your Tier 2 visa sponsorship or hiring Tier 2 workers, contact us.
Why do I need a sponsorship licence?
Any UK employer looking to hire a non-EEA national under the Tier 2 visa skilled worker route must hold a valid sponsor licence. The licence grants permission to employ non-European nationals within specific limitations on the type of work that can be performed and the duration of the visa. To obtain a sponsor licence, you must apply to the Home Office. The application process is complex and entails compiling an extensive and comprehensive submission to evidence your organisation’s eligibility under the licence requirements.
How long does it take to get a Tier 2 sponsorship licence?
Once your application has been submitted to the Home Office online, it can take between 2-3 months for the Home Office to process your submission and make a decision.
What are the supporting documents will need to be submitted?
The specific documents to provide will depend on the type of organisation that is applying. Appendix A specifies the documentation your organisation will need to submit, as a minimum, to evidence eligibility for a licence. Additional documents should also be submitted in support of your internal capabilty to meet the compliance duties under the licence requirements.
Why choose DavidsonMorris?
As experienced business immigration specialists, we can advise you on all aspects of your Tier 2 sponsorship management, 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. Taking a proactive approach to compliance risk management is the most effective way to meet your duties on a consistent and sustained basis. We can also help with Home Office investigations and mitigating any potential liability for any failure on your part to comply with your duties.