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UK Employers Immigration Guide

 

 

we understand the complexities of the UK immigration processes. While different issues can arise as a result of variable sets of criteria and changing legislation.

We help businesses around the globe obtain the relevant UK work, business or dependent visas for employees and their families. The members of our business immigration team are adept at handling all categories of business and work visas, from short term visitor visas to longer term multiyear assignments for all levels of personnel.

Our Approach is not prescriptive; we don’t look at our business immigration clients’ needs with a set procedure in mind. We work collaboratively with every client, adapting our procedures and finding the most effective, compliant solutions for each client on an individual basis. The business immigration team is experienced in dealing with staff immigration across a vast range of countries and all industries; each team member applies their considerable knowledge and experience to every case. This enables them to understand our clients’ needs and to guide each migrant through every stage of the process, from initial application to full compliance.

Whatever your business immigration needs, you can rest assured that Haskew Law will handle them effectively and compassionately. The streamlined way in which we operate means that you will have one direct point of contact and our “One Day” response policy means that we will confirm receipt of all queries within a 24 hour period and deal with them quickly and efficiently.

UK Employer Compliance Guide

When hiring skilled migrant workers from around the world employers must ensure they meet the stringent legislative requirements set out by the UKBA.

Under the Tier 2 visa category employers are responsible for making sure that migrant workers are eligible to fill the positions their organisation has to offer. In line with this employers may be subjected to immigration compliance checks, with or without receiving prior notice.

In order to employ a foreign national, employers must first hold a sponsorship licence. ‘A level’ or ‘B level’ sponsorship licenses are issued according to the UK Border Agency's risk assessment of each employer or organisation. In the majority of instances employers will be awarded an ‘A’ rating, however in cases where employers do not sufficiently fulfil their responsibilities they may be downgraded to a ‘B’ rating, or have their licence revoked meaning they will no longer be allowed to recruit from the foreign labour force.

Employers with a sponsorship licence who are seeking to employ foreign nationals are required to issue potential employees with a certificate of sponsorship.

To issue a certificate of sponsorship the employer must be able to show that:

  • The position is a genuine vacancy with remuneration equal to that which a UK national would receive were they to be employed in the same position.
  • The role must also be at or above the National Vocation Qualification (NVQ) level 4.
  • They have attempted to fill the role within the UK, provided that the role is not considered a shortage occupation that appears on the shortage occupations list. In such cases the position does not have to be advertised in the UK before a sponsoring employer can employ a non-EEA national.

Jobs on the Shortage Occupation List

If you are seeking to hire a foreign national worker to fill a position listed on the shortage occupation list, you will not be required to satisfy the resident labour market test for that position.

Job that require the Resident Labour Market Test

If the position you are seeking to fill with a migrant worker is not on the shortage occupation list you will be required to satisfy the requirements of the resident labour market test. This means that you will need to advertise the job in the UK to determine that a suitable settled worker cannot be found before granting a certificate of sponsorship to the foreign national.

Employer Licencing To Hire Foreign Workers

All employers who wish to recruit foreign national workers have been required to register for a Sponsorship Licence with the United Kingdom Border Agency (UKBA). Registration is mandatory if you wish to be eligible to recruit from the foreign labour pool.

Visalogic is fully qualified to manage all of your Points Based System employer licensing and sponsorship requirements. To find out how we can ensure the success of your organisation’s application for sponsorship licensing and registration, please contact us.

Before an employer can sponsor a migrant worker a Sponsorship Licence must be approved in advance by the UKBA.

Under the point based system only licensed sponsors will be eligible to issue potential migrant employees with a Certificate of Sponsorship. Migrants seeking to come to the UK will need to obtain entry clearance - a Certificate of Sponsorship issued by a licensed employer before an entry clearance application can be made. Furthermore, each potential migrant worker must also satisfy the points based assessment criteria for the visa category under which they are applying.

Please note that a potential employee’s Certificate of Sponsorship does not in any way guarantee or secure their visa if the supporting documentation for an application cannot be verified independently.

How long is a sponsor’s licence valid for?

Licences are valid for four years, starting from the day it is issued or the day that applications start for the relevant tier of the points based system, whichever is the later.

Sponsorship licensing requirements

For your organisation to successfully apply for a licence and be added to the register of sponsors you must prove that you meet the following criteria:

  • you are a legitimate organisation working within the law in the United Kingdom;
  • there are no reasons to believe that you are a threat to immigration control; and
  • your organisation is committed to fulfilling its sponsorship duties.

When your application is approved you will be awarded an A-rating or a B-rating on the register.

As a licensed sponsor you are required to notify the UKBA if migrant employees do not comply with their immigration conditions, and you must also comply with a number of other sponsorship duties or you will risk losing your licence.

Licensing and sponsorship costs

Employers seeking a licence and acceptance on the register of sponsors for the Tier 2 (general) skilled worker category will need to pay a fee of £310 (if you are a small sponsor) through to £1,025 for all other sponsors.

In addition to the licensing fee outlined above, each Tier 2 (General) - skilled worker certificate of sponsorship costs £175.

Under what circumstances will a licence be withdrawn?

Circumstances in which a sponsor will normally have their licence withdrawn include:

  • If it ceases to trade or operate, whether as a result of insolvency or for any other reason
  • It ceases to be accredited or registered with any body that it needs to be accredited/registered with in order to obtain a licence
  • If the prospective sponsor or another appropriate agency is an undischarged bankrupt, or legally prohibited from becoming a Company Director.
  • If the sponsor has provided forged, falsified documents or information to the UKBA
  • If the sponsor does not have adequate facilities to cope with the increased staff and no evidence has been provided regarding expansions.

What penalties will apply for illegally employing migrant workers?

In line with the unveiling of the Points Based System, a new penalty system relating to the employment of illegal migrant workers will also be introduced. The new penalty regime consists of a civil penalty for employers who employ illegal migrant workers as a result of negligent recruitment and employment practices, and a criminal offence for those employers found to be knowingly employing migrant workers illegally. Each penalty carries a maximum two year prison sentence and/or an unlimited fine.

Use of representatives for licensing and sponsorship

Sponsors can elect to use an immigration service provider to handle its PBS affairs with the UKBA, provided that the immigration service provided is registered with the OISC or Law Society.

On Going Immigration Compliance

As an employer in the UK it is vital that you are aware of your responsibilities towards the prevention of illegal migrant working. Section 8 of the Asylum and Immigration Act 1996 (the Act) contains legislation regarding the employment of overseas workers.

According to Section 8 of the Asylum and Immigration Act 1996 there are three key factors that you should take into account when recruiting foreign workers from outside the UK.

  • It is a criminal offence for you to employ someone who has no right to work in the United Kingdom, or no right to do the work you are offering.
  • By checking and copying certain original documents belonging to your employee, you can establish a statutory defence against conviction for employing an illegal worker.
  • You are obliged to ensure that your recruitment practices do not discriminate against individuals on racial grounds.

Immigration Compliance Audit Service

For employers, immigration compliance is an essential component of recruiting overseas nationals. Failure to carry out the necessary checks and to follow the stringent processes designed to prevent illegal working can result in civil or criminal penalties, and restrictions on being able to sponsor overseas nationals to work in the UK in the future.

If you are a UK based employer and you recruit overseas nationals, you must remain immigration compliant at all times. Visalogic's compliance audit service is designed specifically for UK based employers and will help ensure that your organisation avoids costly penalties and damage your professional reputation.

Our immigrations service includes:

  • An on-site meeting with key personnel on your processes and procedures designed to satisfy UKBA requirements;
  • A thorough review of your HR systems, processes, document checking and record keeping in order to identify immigration related practices that put your compliance status at risk;
  • Examination and audit reports for a sample of migrant files to confirm that processes and policies are being implemented;
  • Identification of missing migrant documentation and recommendations for rectifying;
  • A detailed audit report containing tailored guidance and specific recommendations and action points for improving your compliance processes.

Visalogic can also provide bespoke in-house training to ensure that key personnel and recruitment staff gain a strong understanding of when a migrant can legally work in the UK, the various categories of immigration permissions, the necessary document checks, and how to meet Tier 2 and Tier 5 sponsor duties including reporting and record-keeping responsibilities.

If you are interested in finding out more about how we can help you remain immigration compliant, please contact us.

When should you consider getting an immigration compliance audit?

A compliance audit is particularly relevant if any of the following circumstances apply to you or your organisation:

  • Your company is a restaurant or catering business;
  • You are applying for a sponsor licence for the first time;
  • You are applying to renew your sponsor licence;
  • The Home Office has contacted you to arrange a visit to your premises;
  • Your sponsor licence has been downgraded to a level B licence;
  • You do not currently have immigration compliance systems or processes in place;
  • You have not reviewed your immigration compliance systems or processes in the past two years;
  • You have concerns that some of your employees might not have the right to work in the UK, and you are not sure what to do about it.

How much does an immigration compliance audit cost?

Like all of our services, the audit is conducted on a fixed fee basis which we will agree with you in advance. We tailor our audit service to meet your needs and budget and we are happy to provide a quote following an initial no-obligation discussion of your objectives.

Restricted Certificates of Sponsorship

Since 6 April 2011 all migrants applying from overseas have been subject to a limit whereby the government will only allow a specific number overseas migrants to enter the UK during each year. The number of restricted certificates available between April 2012 and April 2013 was set at 20,700. Available certificates will be divided up and each month employers must make requests for a Certificate of Sponsorship.

This applies to all migrants applying for a visa from outside the UK. Points will be awarded based on the following:

  • Priority is given to those roles on the shortage occupation list.
  • Then to those who apply to work in role which requires a PhD and is in the research field.
  • Then to those who have carried out a resident labour market test. Note that the higher the salary, the more points will be awarded.

Unrestricted Certificates of Sponsorship

Employers can apply for any number of unrestricted sponsorship certificates based on their estimated requirements. Unrestricted certificates can be allocated to the following individuals:

  • Intra Company Transfers;
  • Tier 2 migrants extending their stay with their original employer;
  • Tier 2 migrants with valid leave extending their stay by switching to a new employer;
  • Those admitted in another visa category and applying to switch in-country into the Tier 2 (general) category;
  • Where transitional arrangements for those already in the United Kingdom as a Tier 2 migrant or work permit holder apply;
  • Those seeking admission to fill a vacancy attracting a salary of £150,000 or more; or
  • Tier 2 Sports People or Ministers of Religion.

A Certificate of Sponsorship is not a physical document, but instead is a unique reference number that is provided to the candidate allowing them to make a visa application.

When issuing a certificate to a candidate, the sponsoring employer must complete the Certificate of Sponsorship application form and they must also detail the position's status as a 'shortage occupation' or demonstrate that the position has passed the Resident Labour Market Test. The sponsoring employer is responsible for informing the applicant when a Certificate of Sponsorship is issued.

Please note that a sponsorship certificate does not guarantee that a visa will be granted, but instead forms a precondition for all potential migrants wishing to come to the UK. Only once you are in possession of a Certificate of Sponsorship you may apply for your visa.

Your Certificate of Sponsorship must:

  • Contain the same details as in your Passport;
  • Be assigned to you by your sponsor (employer) no more than three months before the date you apply;
  • Not have been withdrawn by your sponsor or the UKBA.

A Certificate of Sponsorship will run out if it is not used within three months of your sponsor assigning it to you.

Shortage Occupations List

The occupations that make up this list are determined by the Migration Advisory Committee (MAC) and are selected on the basis that they meet the needs of UK businesses and  better reflect the highly selective Points Based System immigration process.

What is the Shortage Occupation List?

If a job is on the shortage occupation list, it means there are not enough resident workers to fill the available jobs in that particular sector. Consequently for jobs on the shortage occupation list employers are not required to demonstrate that they have applied the resident labour market test in order to issue a Tier 2 Certificate of Sponsorship.

How can employers have their say about jobs on the shortage occupation list?

On behalf of our clients we collate and present evidence to the MAC to support the inclusion of specific jobs on the national shortage occupation list where there is a need expressed by employers. As such we encourage employers to contribute to the review to ensure their needs are met. If you have any comments or would like to know more about presenting evidence to the MAC please contact us.

 

 

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