Immigration for Employers

More and more businesses now need to look outside of the UK and Ireland to find the talent that they require.

If you need to employ a migrant worker who does not already have permission to work in the UK, you will first of all need to have a sponsorship licence from the UK Home Office. The same applies if you are seeking to employ a migrant worker who is sponsored by another employer (or who is transferring to your employment from another employer). Obtaining such a licence involves making an application and the payment of a fee. The Home Office has published several volumes of policy guidance, in which the process for applying for a sponsor licence and the requirements to be met for the licence to be granted, are set out. Various supporting documents are required to be submitted along with the application.

There are several routes available for overseas residents to work in the UK, for example:

• Skilled worker visa
• Global business mobility visa
• Health and care worker visa
• Temporary worker visa

Applicants for one of these types of visas require to be sponsored by a licensed employer (who is licensed to sponsor workers) for the visa category in question. The UK operates a points-based system for migrants coming to the UK to work. Applicants are required to score a certain number of points under the system to obtain permission to enter or remain in the UK, and these points-based criteria differ for each visa type.

For a skilled worker visa application, eligible applicants need (amongst other requirements) to have a Certificate of Sponsorship (“CoS”) from a licenced sponsor. Before assigning the CoS to a potential employee, licensed sponsors must first carry out a strict verification exercise, and there are usually considerable fees involved for assigning a CoS – called the Immigration Skills Charge.

These procedures are often complex and getting it wrong can prove very costly in terms of time and money. Businesses who wish to employ overseas residents should therefore seek legal advice from a skilled immigration adviser who can advise and assist with all stages of the process. Worthingtons can offer such a service to all business clients, and we have a dedicated business immigration team. We pride ourselves in being able to navigate clients successfully through this complex area – our expert team keeping on top of the latest legal developments, and we are able to deliver a high quality, effective and responsive service.

Brian Moss from our Belfast office is a member of the Law Society NI’s Immigration Practitioners’ Group and is currently serving as the group secretary. Brian is also a member of the Future Border & Immigration System (FBIS) Programme group – a group established by the Home Office to facilitate engagement with employers and educators in relation to UK immigration policy.

FAQs

Does our Organisation Need a Sponsor Licence?

Unless they are a British or Irish citizen or fall within one of the categories set out below, you will usually need a sponsor licence to employ someone to work for you (including voluntary work) from outside of the UK/Ireland. This includes citizens of the EU, Iceland, Liechtenstein, Norway and Switzerland who arrived in the UK after Brexit (31 December 2020).

You will not need a licence to sponsor certain non-British/Irish workers, for example:

• those with settled or pre-settled status under the EU Settlement Scheme
• those with existing permission to work under a family visa route/as a dependant of a person in the UK on a student/work visa, or those who have indefinite leave to remain in the UK

Applying for a Sponsor Licence

Q – What is the process like?

The process of applying for a sponsor licence involves the completion of an online application form. Usually, we assist clients remotely with these applications, as the application must be submitted by the client themselves. The completion of the online application form itself usually takes around 1 hour. On submission, a fee is required to be paid to the Home Office. The client thereafter must send a signed submission sheet and all supporting documents for the sponsor licence application to the Home Office by e-mail within 5 working days. We assist clients in gathering together and checking the supporting documents required, and we take responsibility for sending the supporting documents to the Home Office on behalf of our clients.

Q – How long does it take to get the licence?

Most applications for sponsor licences are processed in less than 8 weeks. The UK Home Office may need to visit your business before deciding your application. If you need the licence more quickly, a priority service is available for an additional fee, but it is currently limited to a small number of applications per day, on a first come first served basis. Payment of the additional fee for the priority service therefore will not guarantee consideration of your sponsor licence application on a priority basis.

Q – What supporting documents will be needed?

In general, 4 separate supporting documents are required to be provided. The following are usually readily available / obtainable:

• Your Employer’s Liability insurance certificate
• Letter from HMRC confirming the business’ PAYE reference number and HMRC’s ‘accounts office’ reference number
• Registration of any charges against the business (these will be available on Companies House if the business is a limited company)
• Your VAT registration certificate
• Copy lease of business premises
• Recent business bank statement

You will also need to provide an organisation hierarchy chart detailing any owner, director and board members, and showing (by highlighting / using different colour) where the roles you are seeking to sponsor individual workers in, fit within same. If the company has 50 employees or fewer, you must list all employees and set out the names and titles of all staff.

Finally, a detailed letter needs to be provided (which we usually draft on behalf of the client), which needs to cover all of the following:

• why are you applying for a sponsor licence
• what sector you operate in
• what are your opening/operating hours
• the jobs you wish to fill and for which you intend to assign a CoS – including the following information for each job:
  • job title and occupation code
  • duties
  • where the job sits on the organisation’s hierarchy chart referred to above
  • minimum salary you would guarantee if the job were vacant today
  • skill, experience and qualifications required
• You must indicate which jobs are currently vacant and for which you intend to assign a CoS. If you have already identified someone that you wish to employ via the sponsorship system, you should provide evidence of how you identified this person. If you identified this person as a result of a recruitment process, you should include copies of advertisements placed to recruit for the job, details of any applicants and why they were not suitable for the job. You should confirm whether the person is already working for you.
• If you have not advertised the job and the person you wish to employ is not currently working for you, you should confirm how you identified that this person was the most suitable for the job.
• If you have already identified a person, including if they are an overseas national already working for you, and intend to assign a CoS to them, you should provide the following details of the person:
  • full name
  • date of birth
  • nationality
  • current immigration status
  • current job title and duties
  • 3 months’ payslips, if applicable

Assigning a CoS / Making a Visa Application

Q – How do you assign a CoS to a worker?

Once the sponsor licence has been granted, you will be given login details in order to access the Home Office’s Sponsorship Management System (“the SMS”). Under most sponsor licences, a number of CoS are allocated to the business, ready for use. If the worker you are seeking to employ / sponsor is already in the UK, then provided you have an unused CoS available within your allocation, 1 of these can then be assigned to the worker in question. There are fees payable for assigning a CoS, including a fee for assigning the CoS itself and a more significant Immigration Skills Charge.

However, if the worker you are seeking to sponsor is residing overseas, then you must make an application via the SMS for a ‘Defined’ CoS. Such applications are normally decided within 1 working day. Once the application is granted, then the Defined CoS can be assigned to the worker concerned. This again involves the payment of fees to the UK Home Office – including the Immigration Skills Charge referred to above.

For migrant workers already in the UK, should you have exhausted your in-year allocation of CoS, an application can be made via the SMS to increase your allocation.

Q – How does a worker make a visa / permission to stay application once a CoS has been assigned to them?

If the worker is living outside of the UK, they will need to make an online visa application for entry clearance, to come to the UK. We would routinely assist with the submission of the visa application for the worker. Usually there are considerable visa application fees and an Immigration Healthcare Surcharge to pay when submitting the application. The worker will then need to attend a biometric appointment at a UK Visa Application Centre in their country of residence, ahead of which a number of supporting documents will need to be submitted to the Home Office, to evidence that the worker meets the requirements to be granted the visa. The current processing time for both a skilled worker and health and care worker visa from outside the UK, is 3 weeks.

If the worker is living in the UK and is able to switch from their current visa to a visa that will enable them to commence / remain in employment with you, or apply for an extension of their existing permission to stay in the UK, they will need to make an online application for permission to stay before their current visa expires. As with a visa application being made from outside of the UK, substantial application fees and an Immigration Healthcare Surcharge are required to be paid when submitting the application to the Home Office. The worker will then need to attend a biometric appointment, ahead of which (as with a visa application made from outside of the UK) a number of supporting documents will need to be submitted to the Home Office, to evidence that the worker meets the requirements to be granted the visa / extension of permission to stay. The current processing time for an in-country skilled worker visa application is 8 weeks and an in-country health and care worker visa, 3 weeks.

Checking a Person’s Permission to Work in the UK

All employers are required by law to check that a job applicant is allowed to work in the UK before employing them.

There are various ways of doing this, depending on the job applicant’s immigration status:

1. If the applicant is a British or Irish citizen, you can verify their right to work in one of two ways:

• By checking their original documents to establish that they have the right to work in the UK – for example, their passport or passport card, or a birth or adoption certificate issued in the UK, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer; or
• If they have a valid British or Irish passport, or a valid Irish passport card, you can check their right to work by using an identity service provider that offers Identity Document Validation Technology (IDVT).

2. For non-British / Irish citizens, in certain circumstances it is also possible to verify their right to work by checking their original documents. Where this is not possible or in any event, you can check their right to work online if they provide you with a ‘share code’.

3. If a non-British/Irish job applicant cannot show their documents, and an online immigration status check is not possible, then you will need to use the UK Home Office’s Employer’s Checking Service to verify their right to work.

When checking original documents, you will need to check that the documents are valid in the presence of the job applicant. You need to check that:

• the documents are genuine, original and unchanged and belong to the person who has given them to you;
• photographs of the applicant are the same across all documents and look like them;
• dates of birth are the same across all documents; and
• where 2 documents give different names, that the applicant has supporting documents demonstrating the reason for this, such as a marriage certificate.

You will then need to make and keep copies of the documents and record the date you made the check. Copies of the documents need to be kept during the applicant’s employment and for 2 years after they stop working for you.

If the applicant is not a British or Irish citizen, you will also need to check that:

• the dates for the applicant’s right to work in the UK have not expired;
• that the applicant has permission to do the type of work you’re offering (including any limit on the number of hours they can work); and
• where the applicant is a student, you will need to additionally see evidence of their study and vacation times.

If your employee’s right to work is time-limited, you’ll need to check their documents again when their right to work (or their permission to stay in the UK) is due to expire.