New UK visa sponsorship for employers

The new UK visa sponsorship system for employers replaces the Tier 2 sponsorship scheme. In many respect the new system is less onerous for the employers as well as sponsored employees. This is understandable in the aftermath of Brexit when (since 01 January 2021) UK Sponsors can no longer employ new entrants from EEA and Switzerland outside the sponsorship system (unless they are here on other visas, e.g. as a student, investor, dependant migrant).

In this article I shall try to briefly outline the key considerations for sponsoring foreign workers under the new system.

Assessment

There are three things that an employer should consider carefully before making a sponsorship application:

1. That the employer’s business is a genuine business operating lawfully in the UK
2. It has genuine vacancy for the proposed sponsorship(s)
3. It has personnel with sufficient knowledge and ability to carry out sponsorship duties

When assessing the genuineness of a business, the Home Office is likely to look at the following:

• Business premises – size, suitability and right of occupation (e.g. lease or tenancy agreement)
• Whether the business has the licences and registrations required for its trade
• Financial accounts, turnovers, bank account – if a business is not financially viable it is unlikely to get sponsorship licence.
• Website – whether that provides the impression of a genuine business (this is not necessary for all business, e.g. small businesses that relies on local or small group of clients)
• PAYE registration
• VAT registration – a strong indicator of genuineness
• Record as an employer
• Business plan (for relatively new businesses)

In assessing genuine vacancy, the Home Office would look at the needs of the business and its affordability. The following factors are important in this regard:

• Size of the business, turnover, net profit – whether the business can afford additional employees under the sponsorship system (with minimum salary of £20,480)
• Business needs/workload -vs- existing staff/employees
• Whether the business already has enough employees in positions for which the sponsorship is being sought (if yes, you are unlikely to get the sponsorship licence)
• Whether the business is genuinely in need for employing someone at the proposed skill level and salary. For example, if your business requires an admin staff, but you propose to employ a marketing consultant or sales consultant instead so that the job title falls within Table 1 of Appendix: Skilled Occupations (just to meet the immigration rules), and if the Home Office can figure this out, then you are unlikely to get the sponsorship or your sponsored candidate may not get the visa.

The Home Office would also check if the proposed sponsor has the requisite personnel with adequate knowledge and ability to carry out the sponsorship duties. It would also want to see if that business has satisfactory system in place to carry out the sponsorship duties (e.g. appropriate HR and recruitment system and practice in place).

In order to fulfil the sponsorship management roles a sponsor needs to have the following (could be filled by one person):

• Authorising officer – a senior and competent person responsible for the actions of staff and representatives who use the sponsorship management system (SMS).
• Key contact – its main point of contact with the Home Office
• Level 1 user – responsible for all day-to-day management of sponsor’s licence using the SMS

The person or persons (Key Personnel) in charge of the above need(s) to be honest, dependable and reliable. This means:

• a clean record – not broken the law
• no unspent criminal convictions for immigration offences or certain other crimes, such as fraud or money laundering
• not subject to bankruptcy
• no fine by UKVI in past 12 months
• not reported to UKVI
• no failure to pay VAT/ other excise duty
• no history of non-compliances with sponsorship requirement

The Key Personnel also:

• needs to be knowledgeable and competent in carrying out/ supervising the sponsors’ duties – background checks would be carried out on the key personnel
• has not been a key person for a Sponsor which lost its licence in the past 12 months, and
• not a contractor/ consultant for a specific project/ be based in UK most of the time

Types of licence

• Workers (long term job offers): (a) Skilled, (b) Intra-company visas, (c) Minister of Religion, (d) Sportsperson
• Temporary workers: (a) Creative/Sporting (1Y), (b) Entertainer/Artist (2Y), (c) Charity (1Y), (d) Religious (2Y), (e) Govt authorised work experience (1Y), (f) Medical/scientific training (2Y), (g) International Agreement, (h) Seasonal – farm work (6M).
• Application can cover one of the above or both

Application process

• Apply online
• Submit supporting documents in 5 days (Home Office can ask for more documents upon considering an application)
• Potential compliance visit
• Timeframe: usually 8-12 weeks
• Fee: (i) Small/ charitable (turnover less than £10.2m, assets less than £5.1m, 50/less employees): £536 for Worker/ Temporary Worker or both; (ii) Medium/large: Worker £1,476, Temporary Worker £536, both: £1,476
• Priority Service application: £500 extra, decision within 10 working days

Cooling off period

This refers to the length of time that you would need to wait before making a sponsorship licence application if you had a revocation of licence or refusal of licence application in the past:

• No cooling off period if a previous application is refused for lack of documents
• For other refusals – 6 months
• For revocation of license – 12 months

Required documents and information

As part of the application, depending on the circumstances of your business, you would need to provide certain documents. Examples of these are as follows:

• Evidence of current bank account
• Documentary evidence of registration/ endorsement (where registration/endorsement with a body is mandatory)
• VAT registration certificate
• Letter from your corporate banking provider, setting out the dealings it has had with you, including the nature and duration of those dealings
• Recent business bank statements
• A letter from the Department for International Trade (DIT) confirming that your business is working with them
• Evidence that you have employer’s liability insurance cover for at least £5m from an authorised insurer
• Current Financial Report or Audited Annual Report, plus latest Audited Annual Accounts
• Proof of registration with HM Revenue & Customs (HMRC) as self employed
• Latest Annual self-assessment tax return
• Evidence of Registration with HM Revenue & Customs (HMRC) as an employer to pay PAYE & National Insurance
• CT620 or CT600&CT603 for companies
• Proof of ownership or lease of your business premises
• Franchise agreement
• Premises license for restaurants
• Planning permission (where appropriate)
• Documents showing payment of business rate
• Web address in covering letter
• Up to date hierarchy chart detailing any owner, director, and board members
• HR related papers (e.g. staff handbook)

Following are the examples of information that you might be required to provide for sponsorship application:

• Why the application is being made
• Sector in which your business operates
• Operating hours, contact number and email address
• List of all employees if business has less than 50 employees
• Information about the job(s) you wish to fill including salary range, required skill, experience and qualification
• Any potential/ selected candidate (with reasons for selecting/considering that person and how that person was identified)
• Recruitment process
• Home Office could seek further information (e.g. details about affordability or selection of a candidate)

Who can be sponsored

There are three key changes in this regard. First, the Resident labour market test no longer applies, meaning that now sponsors can issue CoS to foreign workers without first having to see if the vacancy can be filled by home workers. This saves time and makes it lot easier to sponsor foreign workers.

Second, the cap on the number of employees that could be brought each year from outside the UK  has been removed.

Third, the salary threshold has been rearranged with a new set of tables for applicable jobs and the following six salary categories:

Please refer to Appendix Skilled Occupations of the Immigration Rules (https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-skilled-occupations) for the applicable job tables 1 and 2.

Appendix Shortage Occupation List (https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-shortage-occupation-list) provides list of shortage occupations (SOL 1/2). This list includes, Executive/Head/Sous/Specialist Chefs, Civil Engineers, Electrical Engineers, Programmers and Software Development Professionals, Web Design and Development Professionals, Nurses, Medical Practitioners, Psychologists, Secondary Education Teaching Professionals (maths/physics/computer science/Mandarin) and Social Workers. 80% of the going rate applies for jobs from the Shortage Occupation list, but candidates need to have 5 or more years’ experience of working in same or similar job to get this reduction.

When thinking of sponsoring someone, you should note that the candidate:

• Needs to have adequate skill, qualification and experience [as an example, if your business is looking to sponsor someone as a Management Consultant, the candidate needs a suitable qualification (e.g. MBA/ MSc in management) and sufficient experience for that (e.g. working for other businesses in same or similar position)]
• Needs to satisfy salary threshold
• Cannot be an owner of the sponsor business
• Must have English proficiency required at B1 level (SELT certificate) or degree from UK/equivalent
• Does not have any general ground for refusal of visa – e.g. certain criminal conviction

For applications that are being made from within the UK, candidates must not have, or have last been granted, permission as visitors, short-term students, parents of child students, seasonal workers, domestic workers in private households or outside the immigration rules.

Overall, the current set of rules on sponsoring foreign workers are much more flexible than the previous rules. It is expected that this flexibility and the employers’ inability to employ new entrants from EEA or Switzerland, would prompt a sharp increase in sponsorship of foreign workers.