Sponsorship can be a minefield of rules, legislation and criteria

5th May 2015

Complex situations with Tier 2 Sponsorships

In the ever-changing world of UK Immigration, it can be very easy to fall into the trap of assessing all sponsorships under the same or out-of-date criteria. As more and more changes continue to be implemented by the government, it is increasingly important to assess each role individually against the sponsorship criteria and also assess whether the jobholder / prospective employee qualifies for the visa.

With the complexity and convoluted nature of the UK Immigration Rules it can be easy to miss a certain criterion resulting in a refusal or even issues with your sponsor license. In other cases, overlooking a specific part of the guidance or rules can result in more work, hassle and cost than is actually necessary e.g. conducting a Resident Labour Market Test (RLMT) when it is not in fact required.

Whilst it is vital to ensure that each Certificate of Sponsorship (CoS) that you issue meets the requirements, it is sometimes difficult to know exactly where to look for accurate information. Between the latest Immigration Rules, the Appendices, the Policy and Sponsor Guidance, the SMS Guidance, the SOC Codes of Practice, the Immigration Directorate Instructions and the Entry Clearance Basics; sponsorship can be a minefield of rules, legislation and criteria.

Before you issue any sponsorship to an employee, you should be able to answer the following questions:

Tier 2 General:

  1. Is the role a shortage occupation?
  2. Is an RLMT required or is the role exempt?
  3. If required, did the RLMT meet all of the specified criteria and do you hold the required documents on file as proof of this?
  4. Have you applied for the correct category of CoS: i.e. Restricted / Unrestricted (in UK switch, graduate, high earner, extension etc.)?
  5. Is the salary at the specified level and above the minimum threshold per the SOC codes of practice?
  6. If you are paying the migrant worker below the ‘experienced rate’ as stated in the codes of practice, do they meet the criteria for the ‘new entrant rate’? If so, do you intend to hire them for more than 3 years and will you be able to pay them at the experienced rate after 3 years?
  7. If allowances are used in the salary that is stated on the CoS; are the same allowances given to all equivalent workers, not just migrants?
  8. Is the SOC code at or above the minimum skill level?
  9. Does the cooling off period apply to this particular migrant?
  10. If the migrant is already in the UK, do they hold a category of UK visa, which enables them to switch into a Tier 2 visa? If so, do you hold the required supporting documents as evidence that their current immigration status is valid if applicable?
  11. Do any other special circumstances apply (e.g. will the migrant be working out of a contractor’s office in the UK)? If so, have you provided the necessary information on the CoS?
  12. Can the migrant worker meet the English Language and Maintenance requirements?

>Tier 2 (Intra-Company Transfers):

  1. Has the migrant worked for a qualifying overseas branch of the company for the minimum amount of time as specified for their sub-category?
  2. Is the overseas entity either named on the sponsor license or at least a 51% owned subsidiary? If not, does a Joint Venture agreement exist and can the overseas entity be added to your sponsor license?
  3. Is the length of time that you require them to work in the UK in line with that allowed for the sub-category of visa?
  4. If the sponsor is a limited company, does the employee own more than 10% of its shares?
  5. Is the salary at the specified level and above the minimum threshold per the SOC codes of practice?
  6. Has the salary been converted to pounds sterling via www.oanda.com on the day that the CoS is issued if necessary?
  7. If you are paying the migrant worker below the ‘experienced rate’ as stated in the codes of practice, do they meet the criteria for the ‘new entrant rate’? If so, do you intend to hire them for more than 3 years and will you be able to pay them at the experienced rate after 3 years?
  8. If allowances are used in the salary that is stated on the CoS; are they permitted allowances per the sponsor guidance?
  9. Is the SOC code at or above the minimum skill level?
  10. Does the cooling off period apply to this particular migrant?
  11. Do any other special circumstances apply (e.g. will the migrant be working out of a contractor’s office in the UK)? If so, have you provided the necessary information on the CoS?

 If you have checked all of the above and both the role and employee meet the sponsorship requirements then you are generally good to go!

The above may not cover every single circumstance or requirement for sponsorship. The most up to date rules and guidance should always be checked prior to issuing any sponsorship.

If you have any queries regarding the sponsorship of migrant workers, please feel free to make contact.