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Global HR Lawyers

Sponsorship of workers in the UK – 28 September 2022

13 October 2022

Due to the current low unemployment rate in the UK and the effects of Brexit on movement of workers, more employers are applying for or holding sponsor licences to recruit workers from abroad. The benefits can be substantial, but considerable preparation is involved and sponsorship comes with various duties and responsibilities.

A helpful diagram summarising UK right to work checks can be viewed here

On the 28th September 2022, we hosted a webinar to provide key insights and practical tips on:

  • The available sponsor licence categories and when to use them
  • Considerations for deciding whether to include only a single entity/business unit or multiple branches under a licence
  • The HR systems and processes that need to be in place before applying for a licence
  • How the application process works
  • Duties and responsibilities as a licence holder
  • Key criteria and cost for sponsoring workers under the Skilled Worker and Senior or Specialist Worker categories

You can view the webinar in full here. We have also addressed the wide ranging set of questions from attendees which can be found below.

Q&A for sponsorship of workers in the UK webinar

This Q&A covers questions raised in our Sponsorship of workers in the UK webinar.

Sponsorship Q&A

  Question Answer
1. Is a sponsor obliged to sponsor a person within any timeframe after the Sponsor Licence is approved?

No. However, if a sponsor does not use any of its Certificate of Sponsorship (CoS) allocation it is possible that the Home Office may set this to zero at the next annual renewal.

Needing to request a CoS allocation (or a defined CoS) may result in a delay to processing an application for a sponsored worker. The sponsor must also comply with sponsor duties throughout the validity of the licence irrespective of whether it has any workers sponsored under it.

2.  Do the jobs need to be advertised on the Government website if they are already advertised on a company’s website?
No. The Resident Labour Market Test that applied to Tier 2 (General) does not apply to the Skilled Worker route. Skilled Worker sponsors must still retain evidence of any recruitment activity undertaken, but this no longer requires advertising to be carried out using JobCentre Plus.
3. Regarding a PAYE reference, what is the Home Office expecting to be entered when applying for the CoS? Can this just be the payroll employee number?
This is the employer’s PAYE reference number for the payroll the worker will be paid from.
4. Do we really need to keep a hard copy printout of CoS given we do everything via soft copy filling?
A soft copy of the CoS is acceptable.
5. How does maternity leave work for sponsored worker? Can they move onto SMP as per resident workers? What if that takes them below their minimum salary level?

A sponsored worker is not allowed to be absent from work without pay or at reduced pay for more than four weeks in any calendar year unless the reason for their absence is for:

  • Statutory maternity leave, paternity leave, parental leave or shared parental leave;
  • Statutory adoption leave;
  • Sick leave;
  • Assisting with a national or international humanitarian or environmental crisis, where the sponsor has agreed to the absence for that purpose; or
  • Taking part in legally organised industrial action.

A sponsor must also comply with applicable UK laws, so provided the payment of SMP is carried out in line with the relevant legislation, a reduction of salary for a person on maternity leave would be allowed. All changes in salary and reasoning should be reported on the SMS.

6. Do you happen to know how long it's currently taking to process CoS annual allocation renewals? The Home Office’s service standard is 18 weeks however there is a five-working day priority processing option with availability of 60 slots per weekday. This costs £200 per priority request.
7. Can a CoS allocation be increased at any point or is it per year?
An allocation can be increased at any point during the year if a sponsor has justification for it. The processing times for an allocation increase are as for Sponsorship Q & A question 6 above.
8. Is there a way to pull a report of the CoS that have been assigned in the Sponsor Management System (SMS)?
There is no official way to do so but in the ‘View CoS’ screen of the SMS it is possible to select ‘Search for CoS’ will bring up the first 100 results alphabetically by family name if you enter ‘%’ in the fields for family name and given name(s). The Home Office is expected to replace the SMS with a new system as part of its sponsorship roadmap, and this is anticipated to have improved functionality.
9. Is there a limit on the number of CoS that can be requested in advance?
There is no limit however the Home Office may request information regarding a proposed allocation including the details of any identified workers to be sponsored or other justification for why the allocation is considered by the sponsor to be necessary for their business. The Home Office may refuse a request if not satisfied it is justified.
10. We are starting to receive applications from recent graduates residing in the UK on Student Visas. In such cases we inform the candidate that in order to be employed they must independently obtain a Graduate Visa, at their cost, as a Student Visa is not valid for a permanent role after graduation. We’ve had push back both from candidates and third parties regarding this. Are we correct? (We do have a sponsor licence and would ultimately expect to apply for a CoS for such employees before their two-year graduate visa expires?)
While you are not required to sponsor a person who has an alternative immigration route open to them, the Graduate route does not accrue time towards settlement in the UK. If an individual wishes to settle in the UK, they may be motivated to take up a position with a business that is prepared to sponsor them under the Skilled Worker route from the outset.
11. We agreed to pay half of the Immigration Skills Charge for a Skilled Worker visa and the employee agreed to pay the remaining half via salary deduction. I now understand we cannot do this, and our licence is now at risk – is this correct?
If a sponsor passes the cost of the Immigration Skills Charge onto a worker, the sponsor licence may be revoked. If this has happened, the sponsor should refund the worker as soon as possible to bring the licence back into compliance.
12. Once the sponsored Visa of a person expires, does the company need to get another CoS for them?
If the business wishes to continue to sponsor the individual beyond the expiry of their existing immigration permission, then a new CoS and immigration application will be required.
13. Are we legally able to send sponsored employees on secondment?
There is no absolute prohibition on this however we would suggest obtaining advice on a case-by-case basis as there are restrictions on working for third parties. Also, it would be important to understand the impact of any absences from the UK on settlement eligibility if the secondment is outside the UK.
14. Once the CoS is allocated, is it the skilled workers’ responsibility to apply for the visa and then the employer funds the cost?

The visa application is the individual’s responsibility however how much assistance the sponsor provides and who funds the cost of this is a matter for agreement. Some sponsors will put in place a clawback agreement for visa costs. We can advise further on this as needed.

The sponsor must however pay for the Immigration Skills Charge in all cases.

Right to work check Q&A

  Question Answer
1. Where a company has acquired a business through a merger or acquisition, and it is discovered that right to work checks were not appropriately conducted by the entity acquired, and checks are then undertaken shortly after the transaction, will that be considered a sufficient excuse to reduce any risk of inspection?

It is not possible for a buying entity in an M&A transaction to exclude the risk of becoming liable for paying a civil penalty where an employee is found to be working illegally and the selling business did not carry out a compliant right to work check.

The Home Office advises employers who acquire staff under a TUPE transfer to carry out a fresh right to work check within 60 days from the date of the transfer. This will make the employer compliant with the Home Office’s guidance, which is important for sponsor licence compliance, however if illegal working is detected as part of this check, then the employer may be liable for a civil penalty and should also begin the process for termination of employment. We would suggest that both immigration and employment law advice is obtained if this situation arises.

2. Contractors have a contract for services, so right to work checks wouldn’t be needed? As opposed to a Contract of Service which is an employment contract. Is this correct interpretation?

Employers are not required to carry out a right to work check person engaged as a self-employed person under a contract for services, unless they are also sponsoring that person.

The Home Office does however recommend that businesses carry out right to work checks for self-employed contractors to minimise the risk of business disruption or reputational damage if it comes to light that a contractor does not have the right to work in the UK.

3. If a certified Identity Service Provider (IDSP) is used for right to work checks from 1 October 2022, does that cover the checks fully or would we still be at risk of a fine etc.?

Digital checks using an IDSP can be used to establish a statutory excuse against liability for illegal working in relation to holders of valid British and Irish passports, however employers should be aware that the employer remains responsible for ensuring the visual check is also carried out and documented. It is not sufficient for example just to retain the Identity Document Validation Technology (IDVT) report generated by the IDSP without also documenting that the employer has carried out a visual check of the person presenting for work and has retained any other required supporting documents, e.g. regarding change of name. A statutory excuse will also not be available if a digital check is carried out after a person’s employment has started.

It is allowed for an employer to use an IDSP that is not certified under the Department for Digital, Culture, Media and Sport’s UK Digital Identity and Attributes Trust Framework, however using a certified provider maximises the likelihood that the Home Office will consider that the IDSP is able to carry out digital identity verification to at least a medium level of confidence, which is the minimum accepted by the Home Office for digital right to work checks using an IDSP.

4. Do you have to pay for the IDSP?
Yes, the IDSPs all charge a fee for their services. The fee structures vary across the various IDSPs.
5. With the video check, does the reviewer need to have the original documents?
Yes; from 1 October 2022, the reviewer must have the original document(s) when carrying out a manual right to work check. It is however still acceptable for the original documents to be checked with the person present via live video link rather than in-person.
6. Under what circumstances do we need to see the person physically? Can we do a video check if we do an online check rather than physical document checks?

It is not necessary to see the person physically. A live video link is acceptable for the visual check element of a manual, online or digital check using an IDSP.

However, where the reviewer needs to check physical documents, it may be cheapest and most convenient for these to be reviewed with the person physically present. This is because there would be no need to receive, handle, store and/or return the documents.

7. I understand there are 3 ways of checking right to work. Can we use only online right to work checks for our employees?

No, the Home Office’s online system only covers certain individuals with limited immigration permission or who are settled in the UK. Note that since 6 April 2022, an online check is the only acceptable check for holders of biometric residence permits, biometric residence cards and frontier worker permits.

There will be some employees for whom a manual check is the only option. For British and Irish nationals with a valid passport (including Irish passport card), a digital check can be carried out using an IDSP, however these individuals can opt for a manual check if they wish.

8. Do we have protection against a civil penalty if the IDSP is certified and has operated within the Home Office framework?
See answer to Right to work check Q & A question 3.
9. Can we still use the adjusted right to work checks for employees starting on the 1 October 2022, or soon after? Will the Home Office allow a gap for checks?
An adjusted right to work check can be used for an employee whose start date is on or after 1 October 2022, provided it was carried out on or before 30 September 2022. For any manual check carried out on or after 1 October 2022, the adjusted process cannot be used.
10. What IDSP provider would you recommend?
The most appropriate IDSP may vary depending on an employer’s individual needs. For further information, see our article: Using an Identity Service Provider for digital right to work checks.
11. How would you recommend recording the businesses follow-up ID check if you do use an IDSP?

There will not be any follow-up right to work check required. This is because digital checks using an IDSP currently only cover checks for British and Irish citizens, who have an ongoing right to work in the UK.

However, some IDSPs’ services include the option to manage the right to work check process for all checks, including manual and online checks. Using an IDSP for this purpose will not form part of the statutory excuse, but an employer may choose for other efficiency or risk minimisation reasons to use the same management system for all employees. Enquiries would have to be made with the IDSPs to determine whether they incorporate a mechanism for generating reminders for follow-up checks, or if the employer would have to maintain a separate system.

12. If a student who is allowed to work 20 hours a week during term-time has to do working experience as part of University requirements, can this student work full-time? What requirements do we need to ensure it is all legal?

Yes a student who is undertaking a work placement that is assessed as an integral part of their course may do this full-time for the duration of the work placement.

The specific requirements vary depending on the student’s sponsor and the type of course they are undertaking. We are able to advise further on a specific work placement as needed.

If you have any queries about Sponsorship of workers in the UK, please get in touch with a member of our Immigration Team.

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