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Employers seeking to employ a migrant worker under the PBS system such as Tier 2 must first register as a sponsor and obtain a sponsor licence. The type of licence required depends on whether the workers they wish to employ come under the PBS scope of:
• Tier 2: skilled workers, potentially long-term or permanent positions.
• Tier 5: skilled workers for temporary positions.
An employer can apply for a licence to cover either or both tiers.
Sponsor Management System (SMS)
The SMS is a UKVI online tool for employers to administer their sponsorship responsibilities, such as:
• Assigning a CoS
• Reporting changes to a migrant worker’s circumstances
• Renewing CoSs and making new CoS applications
• Paying fees and tracking progress
The UKVI have 12 user manuals on the operation of the SMS. The UKVI published guidance should be checked regularly for any changes to the immigration rules.
Sponsorship Management Roles: Key Personnel
As part of the registration procedure, employers are required to identify “key personnel” who will be given varying levels of access to and responsibility for managing the SMS and sponsorship process. The roles are:
• Key contact: The key contact acts as the main point of contact between the sponsoring employer and UKVI.
• Authorising officer (AO): The AO ensures that the sponsor meets all its duties under the PBS and has overall responsibility for the actions of the staff and representatives who operate the SMS on its behalf. The AO is an important role and must be filled by the most senior person responsible for the recruitment of migrants and for ensuring compliance with sponsor duties. The sponsor must ensure that a valid AO is in place at all times.
• Level 1 user: Level 1 users are responsible for day-to-day management of the sponsor licence using the SMS. Multiple level 1 users may be appointed once the licence application has been approved.
• Level 2 user: This role is similar to a level 1 user, but with more restricted access to the SMS. Level 2 users are optional personnel, and may only be appointed by a level 1 user once the sponsor licence application has been approved. Level 2 users can only view and assign CoSs that they have created.
Suitability of key personnel
The key personnel must satisfy certain suitability requirements, including the following:
• They must be based permanently in the UK for the period that they hold the role.
• They must be paid members of staff or engaged as “office holders”, subject to the following exceptions:
o a level 1 or level 2 user can be an employee of a third party organisation to which HR functions have been outsourced. However, since 6 November 2014, new sponsors must have at least one level 1 user who is an employee;
o a level 2 user can be a member of staff supplied by an employment agency;
o a sponsor licensed under Tier 5 (Government Authorised Exchange) can appoint level 2 users within the participating organisations;
o any key personnel role may be filled by an insolvency professional where the sponsor has gone into administration; and
o a UK-based representative can fill any of the key personnel roles apart from the AO (but note that, if they have access to the SMS, they must be appointed level 1 or level 2 users).
• They should not have been named as key personnel for any sponsor whose licence has been revoked within the last 12 months.
• They must not have an unspent criminal conviction.
• They must not have an undischarged bankruptcy or debt relief order or undertaking.
• They must not be a consultant or other individual contracted for a specific project.
Eligibility and Suitability of the Sponsor
When considering a sponsor licence application, UKVI need to establish that eligibility and suitability criteria are met, specifically these key criteria:
• The employer is a genuine organisation, operating lawfully in the UK.
• The employer’s background, the key personnel proposed in the application, and the personnel involved in the running of the business, all reflect an honest and reliable employer.
• The employer is capable of complying with its sponsor duties
• Where the employer is seeking to sponsor workers under Tier 2, UKVI will need to be satisfied that the employer can offer genuine employment that meets the Tier 2 skill level and appropriate salary rate.
The UKVI will consider the suitability of the employer:
• Has the employer been suspended or removed from any sponsor register within the last five years;
• Has the employer unspent convictions for immigration offences or certain other crimes such as fraud or money laundering or pending prosecutions; or
• Has the employer failed to pay VAT or any other form of excise duty (or is aware that any organisation they have been involved with in a similar role has failed to pay VAT or other excise duties).
The UKVI will use risk assessments and may make on-site visits as part of their checks.
Sponsor duties and HR processes
Sponsors in all tiers of the PBS have the following core duties:
• Record-keeping duties.
• Reporting duties.
• Duty to comply with all relevant laws.
• Duty to ensure that the sponsorship is for a genuine vacancy.
• Duty to co-operate with UKVI.
Sponsors of workers under Tier 2 (General) and Tier 2 (Intra-Company Transfer (ICT)) have additional tier-specific duties. Many of the core duties and responsibilities such as prevention of illegal working have remained for considerable time. Others change frequently as a result of rule and legal changes through Statements of Change and other forms of legislation.
We regularly assist a wide range of businesses with obtaining a Sponsor Licence with the Home Office typically under both the Tier 2 (General) and Tier 2 (Intra Company Transfer) visa categories. This article has been produced for general information purposes and further advice should be sought from a professional advisor. Immigration is a complex area of law for both corporates and individuals.
Please contact our Business Immigration Team at Cleaver Fulton Rankin for further advice or information.