Changes to Tiers 2 and 5 sponsor guidance

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On 6 April 2014, along with changes in the Immigration Rules, the Home Office published a new version of the Tier 2 and 5 sponsor guidance.  These changes will affect both sponsor licence holders as well as those organisations applying for a Tier 2 and/ or Tier 5 sponsor licence.
Below, we have summarised some of the main changes.
APPLYING FOR A SPONSOR LICENCE
The Home Office has restructured its appendix A to the sponsor guidance on the supporting documentation required to apply for a sponsor licence.  This includes the fact that the Home Office will now be able to undertake some online checks rather than needing to see physical documents.
For example, if an organisation is required to send its company accounts, but these are available to view on the organisation’s website, the organisation will need to let the Home Office know the website address, which could be included in a covering letter along with the submission sheet and other supporting documents.
Further, the number of documents required for an application has changed and now depends on the type of organisation, eg certain public bodies, government departments, and local authorities are not required to submit any documents.
GENUINENESS TESTS
The Home Office has added genuineness tests to Tier 2, including Certificates of Sponsorship (CoS) as follows:
  • When applying for a sponsor licence
    • If applying for a licence under Tier 2 (General), the Home Office may refuse an application if it is not satisfied that the organisation can offer genuine employment that meets the Tier 2 (General) requirements on skill level and appropriate rate.  The two examples given by the Home Office are:
      • ‘You do not currently, or have never employed anyone in a role which meets the current Tier 2 requirements.  For example, you are a small retail outlet and currently only have people working for you as shop assistants or in other low-skilled roles.’
      • ‘You tell us you require (or have already sponsored) a person in a managerial role which appears unnecessary, for example you are a small fast food outlet and you tell us you need, or have appointed a full-time HR manager or publicity manager.’
  • Existing sponsors
    • Existing sponsors should be aware that the Home Office may now refuse any application for a Tier 2 (General) CoS if it is not satisfied that a sponsor can offer genuine employment that meets the Tier 2 (General) requirements on skill level and appropriate rate.
  • Genuine vacancy
    • The Home Office has clarified that sponsors must ‘not assign a CoS where there is no genuine vacancy or role, for example:
      • one which contains an exaggerated or incorrect job description to deliberately make it appear to meet the requirements of the Tier and category you assigned it under when it does not.
      • for a job or role that does not exist in order to enable a migrant to come to, or stay in the UK.’
It remains to be seen as to the criteria by which the Home Office will assess genuineness; however, Penningtons Manches LLP will continue to monitor the situation and will provide updates when more is known.  In the meantime, sponsors should be alert to these genuineness tests, in particular where:
  • undertaking genuine resident labour market tests; and
  • a sponsor may be considering NQF level 6 SOC 2010 Code (so as to meet the requirements) where the job description and requirements are clearly below NQF level 6.
TIME LIMITS
First, instead of calendar days, the Home Office now uses ‘working days’.  Additionally, the length of time to report/send documents/information to the Home Office has changed.
From 6 April 2014, the following time limits, amongst others, apply:
  • When applying for a sponsor licence, organisations will now have only five working days to send in their submission sheet and supporting documents.
  • Material changes in circumstance (either for a sponsor or a sponsored migrant) must be reported via the SMS within 10 working days of the change taking place.
  • Where a sponsor licence is downgraded/suspended (or the Home Office considers such an action), the sponsor will now have 20 working days to submit representations.
  • Change in sponsors.  If Sponsor A has assigned a CoS to a migrant, who intended to start working for sponsor A, but who then decided to take up a job offer with sponsor B, the migrant must contact sponsor A to arrange the withdrawal of his or her CoS.  The migrant must request this in writing or by e-mail giving sponsor A five working days to action this.  If sponsor A does not action the request, the migrant must send a reminder, after which sponsor A will have a further five working days.
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AUTHORISING OFFICER
The Home Office has changed its the policy regarding Authorising Officers in that the Authorising Office ‘must be your most senior person responsible for the recruitment of all migrant workers and ensuring that all of your sponsor duties are met.  If you do not recruit the migrants you sponsor, this role must be filled by the most senior person responsible for your activity as a licensed sponsor.’
This is in line with what the Penningtons Manches LLP immigration team has been advising sponsors.  Whilst carrying out compliance audits and health checks, we often find that an organisation’s Authorising Officer is not always the most appropriate person.  Current licence holders should therefore review the Authorising Officer’s position and consider whether the role has been allocated to the most appropriate person.  As a reminder, a sponsoring organisation is responsible for the actions of the Authorising Officer; therefore, the individual who is nominated must fully understand the importance of the role.
NEW EXEMPTION TO THE RESIDENT LABOUR MARKET TEST
A higher education institution (HEI), which was previously sponsoring a migrant who is returning to resume his or her post following a period of academic leave, will not have to conduct a Resident Labour Market Test.
However, this does not override the rules on cooling-off periods, which will still apply if the migrant is applying to return to the UK.
GRANT OF LEAVE
Sponsors can now assign a Tier 2 (General) or Tier 2 (Intra-Company Transfer) Long Term Staff CoS for any period up to five years; however, if a sponsor assigns a CoS for a period in excess of three years and one month, the sponsor must pay the migrant at the ‘experienced rate’ as set out in the sponsor guidance and the codes of practice.
TIER 2 (INTRA-COMPANY TRANSFER) MIGRANTS
The Home Office has widened the policy that requires a migrant to have worked for a sponsor for a specific period prior to applying for leave under the Long Term or Short Term Staff categories, ie in addition to the current rules, the 12-month period can be an aggregated period of 12 months if the migrant has, during his or her continuous employment, lawfully worked for the intended sponsoring organisation in the UK with leave in an immigration category such as the dependant of another migrant.
NO MORE B-RATED SPONSORS
The Home Office will no longer grant a sponsor licence with a B-rating; however, under the transitional arrangements, any application from a migrant submitted before 6 April 2014 will be assessed under the rules in place before 6 April 2014.
ANNUAL CERTIFICATE OF SPONSORSHIP ALLOCATIONS
In some circumstances, a sponsor will not have to apply for its next year’s CoS allocation; the Home Office will give a sponsor a further year’s allocation, which will be equal to the number of CoS assigned in the previous year.
If the Home Office is able to do this, it will write to inform the sponsor.  If the Home Office does not write, a sponsor must apply as usual towards the end of its CoS year.
SOC 2010 CODES
Where a sponsor assigns a CoS for a migrant to apply for further leave to continue in the same role, if the migrant’s original CoS was assigned before 6 April 2013, and the job they have been doing is not contained in one of the SOC 2010 codes in the read-over table in the codes of practice, the sponsor can assign a CoS under the most appropriate SOC 2010 code, but only if it is clear that the job the migrant is doing did fit in the SOC stated on their original CoS and does not fit into one of the read-over SOCs.
However, we recommend that, before such an action is taken, sponsors carefully reflect on this and seek advice.
MINIMUM SALARY THRESHOLDS
As previously announced and as of 6 April 2014, the minimum salary thresholds for Tier 2 (General) and Tier 2 (Intra-Company Transfer) migrants have been updated.  Additionally, the salary rates in the codes of practice have been amended.
Sponsors should take note of the transitional arrangements, which state that any application submitted by a migrant on or after 6 April 2014, which is supported by a CoS assigned before 6 April 2014, will be assessed under the appropriate rate rules in place on the date on which the CoS was assigned.
APPENDIX D: GUIDANCE FOR SPONSORS ON KEEPING DOCUMENTS
Sponsors should be familiar with appendix D to the sponsor guidance, which lists the documents sponsors must keep to meet their sponsorship requirements.  Sponsors should review the updated appendix D and, in particular, note the change to requirements for a contract of/for employment/service.
TIER 2 (SPORTSPERSON) MIGRANTS
The previous policy that permitted football players to move to another club on loan has been extended to all sports, but this will only be allowed if the sport’s governing body permits it.
TIER 5 – GOVERNMENT AUTHORISED EXCHANGE SCHEMES
The Home Office has made the issue of timing clearer for the benefit of prospective sponsors who want to establish a new scheme.
Additionally, the Home Office has added another category to the range of acceptable Government authorised exchange schemes.  Migrants can come to the UK to participate in overseas Government sponsored language programmes for up to 24 months.
Published on :http://www.lexology.com/library/detail.aspx?g=55c2f309-216e-420b-a444-2c1db72eadae
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