UK Visa Tier 2 Visa, Immigration Skills Charge from 6 April 2017

A series of changes under the Immigration Act, 2016 will substantially increase the cost of applications for Tier 2 Visas by employers with Tier 2 Sponsorship Licences who allocate Tier 2 Certificates of Sponsorship(CoS) on or after 6 April 2017. The much maligned Immigration Skills Charge was among the UK Visa changes.

The new charge, announced in March 2016, is due to come into effect on 6 April 2017. The Immigration Skills Charge is being put in place with a view to ‘incentivising employers to invest in training British staff’, according to a Home Office statement.

In order to reduce Britain’s so-called reliance on non-EU workers, Tier 2 visa applications will include a mandatory £1,000 fee for medium and large businesses per sponsored employee per year of sponsorship. However, for smaller businesses as well as educational, charitable and other similar institutions, a concession will be granted reducing the Immigration Skills Charge to £364; the charge is not applicable to a worker’s dependents.

No Immigration Skills Charge for PhD level occupations on UK Tier 2 Visas

Additionally, employees recruited into PhD-level occupations will not be subject to the Immigration Skills Charge. Meanwhile, any students in the UK on a Tier 4 visa who are able to switch to a Tier 2 visa (General) under immigration rules are also exempt from the fee.

Initially, it was not disclosed by the Home Office as to whether those applying to extend their stay in Britain would be subject to the Immigration Skills Charge. However, the Government department has since updated its Tier 2 sponsorship guidance.

The updated changes specify that the charge will not apply to non-EEA nationals, sponsored via the Tier 2 immigration route before 6 April 2017 and who apply from within the UK to extend their Tier 2 stay with either the same or a different sponsor.

The Home Office has confirmed that sponsors are required to pay the Immigration Skills Charge at the time of allocating a Tier 2 CoS and is payable in advance for the total period of time covered by the certificate of sponsorship.

More UK Visa changes

It’s understood that further changes from April 2017 will make the cost of sponsoring many overseas employees even more expensive. For instance, the minimum salary rate payable to ‘experienced workers’ within the Tier 2 (General) immigration category will be increased to £30,000 per annum.

Limited exemptions exist for this rule, which mainly applies to ‘public service occupations’ including medical radiographers; nurses; paramedics and secondary education teaching professionals in maths, physics, chemistry, computer science and Mandarin.

Statement of changes

In a widely circulated email sent out by Home Office Communications, a summary of the key changes to the Tier 2 immigration rules included:

Tier 2 General Visa Overseas criminal record certificates

The Government is set to extend the requirement to provide a criminal record certificate to Tier 2 (General) applicants coming to work in the education, health and social care sectors and to their adult dependents.

A certificate will be required for applicants sponsored in these Standard Occupation Classification codes. Applicants in these codes outside of Tier 2 (General) route, such as Intra-company Transfers are not affected.

Certificates will also be required from partners applying from overseas, on or after 6 April 2017 who want to join an existing Tier 2 (General) visa holder working in one of these sectors.

Immigration Skills Charge

As previously announced in March 2016, an Immigration Skills Charge of £1000 per skilled worker per year is being introduced for employers in Tier 2 (General) and Tier 2 (Intra-company Transfer) routes. The charge is £364 for small and charitable sponsors.

There are exemptions for PhD-level occupations, Intra-company Transfer Graduate Trainees and those switching from Tier 4 to Tier 2 in the UK. Income raised from the charge will be used to address skills gaps in the workforce. The Government has announced that further guidance will be published on 6 April.

Immigration Health Surcharge for Tier 2 Intra-Company Transfer Visas

Introduced in 2015, the surcharge is paid by non-EEA nationals who apply to come to the UK to work, study or join the family for a period of more than 6 months. It is also paid by non-EEA nationals who are already in the UK and apply to extend their stay.

From 6 April 2017 those applying for a Tier 2 (Intra-company Transfer) will be required to pay a surcharge of £200 per person per year. Dependents pay around the same amount as the main applicant.

Other changes to Tier 2 Visa applications

  • Secondary school teachers in combined science, computer science and Mandarin are being added to the Shortage Occupation List. Secondary school teachers in chemistry are being removed from the list.
  • Increasing the minimum salary that sponsors can offer a Tier 2 (General) worker from £25,000 to £30,000 for experienced workers. Some jobs in the health and education sectors are exempt until 1 July 2019.
  • Closing the Tier 2 (Intra-company Transfer) Short Term Staff category, meaning that all ICT workers, except graduate trainees, must qualify under a single route with a salary threshold of £41,500.
  • Reducing the high-earners’ salary for the Intra-company Transfer Long Term Staff category from £155,300 to £120,000. These high earners can stay in the route for up to nine years, rather than the usual five years.
  • Removing the requirement for Intra-company Transfer workers to have at least one year’s experience working for the sponsor’s linked entity overseas, for applicants paid £73,900 or above.
  • Introducing a waiver for the Resident Labour Market Test and an exemption from the Tier 2 (General) limit for posts which support the relocation of a high-value business to the UK or a significant new inward investment project.
  • Annual updates to the occupational salary rates in the codes of practice.
  • Changes to provide greater clarity and consistency as to which types of allowance will be considered against the salary requirements.

The Government has announced that it will be making changes to visit visas, Tier 4 applications as well as minor changes and clarifications to the Immigration Rules relating to family and private life-based visa applications. Watch this space.

Resident labour market test: Tier 2 (General)

  1. The resident labour market test is there to protect the settled workforce and means that you must advertise the job you want to recruit for to give settled workers a chance to apply. You can only recruit a migrant if:
    • you have completed a resident labour market test in accordance with this guidance and can show that no suitable settled worker is available to fill the job or
    • the job is exempt from the resident labour market test
  2. A suitable settled worker means any settled worker who has the skills and experience you are seeking. If you find that you have more than one candidate with all the necessary skills and experience you advertised for, where one is a settled worker and the other is a migrant, you must appoint the settled worker even if the migrant is more skilled or experienced. The only exception is if the job falls within one of the PhD level standard occupation classification (SOC) codes listed in Table 1 of Appendix J of the Immigration Rules; when you can appoint a migrant if they are the most suitable candidate

Exemptions from the resident labour market test

Continuing to work in the same occupation

If the migrant is already working for you and they need to extend their leave in the same immigration category to continue working for you in the same occupation, you do not need to carry out a resident labour market test. If they are changing (‘switching’) immigration categories and are not covered by another exemption, you must advertise the post.

Shortage occupations

Shortage occupations are ones where there are not enough settled workers to fill available jobs in particular sectors. The shortage occupation list in Appendix K of the Immigration Rules on GOV.UK is reviewed regularly. The document includes a separate list of shortage occupations for Scotland. If you are filling a vacancy which is listed only on the shortage occupation list for Scotland, the vacancy must be in Scotland.

You do not have to carry out a resident labour market test before assigning a Tier 2 (General) certificate of sponsorship (CoS) to fill a job in a shortage occupation in Appendix K of the Immigration Rules. The exception is if the job is in the occupation code ‘2231 Nurses’, where you must carry out a resident labour market test. You can only assign a CoS for a job on the shortage occupation list if the migrant will work for a minimum of 30 hours per week.

Please note that if you are assigning an unrestricted CoS for a nurse, you should select the “Have you met the resident labour market test?” option, and give details in the box below. If you select the shortage occupation option, you will be unable to complete this box, which may lead to the nurse’s application being delayed or refused.”

The criteria for employing a migrant in a shortage occupation may include additional criteria that the sponsor must meet.

If you wish to employ someone under the digital technology shortage occupation provisions, you must apply to pre-register, see the Tier 2 (General): sponsors of shortage occupation – digital technology workers section.

Post-study work

You do not have to carry out a resident labour market test if a migrant you want to sponsor is already in the UK and is applying to switch into Tier 2 (General) leave and has, or was last granted leave to enter, or to stay in the UK under one of the following:

  • Tier 1 (Post-Study Work)
  •  Tier 1 (Graduate Entrepreneur)
  • the International Graduates Scheme
  •  the Fresh Talent Working in Scotland Scheme
  •  the Science and Engineering Graduates Scheme
  •  where they have, or were last granted permission to stay in the UK as a Tier 4 migrant or as a student and during their last grant of leave, or a continuous period of leave, that includes their last grant of leave, they have received final results confirming they have either:
    • passed and will be (or have been) awarded a UK recognised bachelor’s or master’s degree or
    •  passed and will be (or have been) awarded a UK Postgraduate Certificate in Education or
    •  passed and will be (or have been) awarded a Professional Graduate Diploma of Education or
    •  finished a minimum of 12 months study in the UK towards a UK PhD Note: from 12 November 2015, only migrants whose last sponsor was either:
      • a UK recognised body or a body in receipt of public funding as a higher education institution from the Department of Employment and Learning in Northern Ireland, the Higher Education Funding Council for England, the Higher Education Funding Council for Wales or the Scottish Funding Council
      • an overseas higher education institution to undertake a shortterm study abroad programme in the United Kingdom
      • an Embedded College offering Pathway Courses

will be able to change (‘switch’) into Tier 2 (General) leave from within the UK.

High earners

You do not have to carry out a test where the total salary package for the job will be £159,600 or above. This also applies if a high earner’s salary is cut to an amount below the high earner threshold that applied on the date their original CoS was assigned – they must make a new application for Tier 2 leave, or worker authorisation (Croatian nationals only) but you do not have to carry out a resident labour market test.

Academic leave

You do not have to carry out a resident labour market test if you are a Higher Education Institution and were previously sponsoring a migrant who is returning to resume their post following a period of academic leave. The migrant must have previously been granted entry clearance or leave to remain as a Tier 2 (General) migrant and the break in their employment must have been solely due to a period of academic leave. This does not override the rules on cooling off periods which will still apply if the migrant is still applying to return to the UK.

Supernumerary research positions

You do not have to carry out a resident labour market test where the job is in a supernumerary research position, over and above your normal staffing requirements. This is where:

  • the migrant has been issued a scientific research Award or Fellowship by an external organisation
  •  that award is not transferrable and the role wouldn’t be filled by anyone else if the migrant withdrew from the project
  • the Award or Fellowship has ended but you are continuing to sponsor the migrant so that they can continue to undertake this research

Postgraduate doctors and dentists in speciality training

You do not need to carry out a resident labour market test if the migrant:

  • will be sponsored as a doctor in speciality training where their salary and the costs of their training are being met by the government of another country under an agreement with the UK government
  •  has already started speciality training as a doctor or dentist in the UK and they are applying to continue that training or return to that training (with the same National Training Number) after an out-of-programme experience

You must confirm on the certificate of sponsorship (CoS) that this exception to the resident labour market test applies.

If a speciality training doctor or dentist wishes to undertake an out-ofprogramme experience in the UK, then the organisation providing this will need to become the new sponsor. You, as the current sponsor (usually the Deanery) must tell us that you no longer have sponsorship responsibilities for the migrant because they are taking an out-of-programme experience. If you are the sponsor that is offering the out of programme experience, you must have carried out the resident labour market test before you assign a CoS.

When the out-of-programme experience in the UK has finished, the migrant may need to return to their speciality training. You must assign a new CoS but will not need to carry out a resident labour market test if the migrant is returning to the same training programme. You must confirm on the CoS that an exception to the resident labour market test applies. If you were the sponsor for the migrant when they did their out-of-programme experience you must tell us that you are no longer sponsoring the migrant.

When a postgraduate doctor or dentist is accepted for speciality training they are given a National Training Number (NTN). You must produce this when asked for, as evidence that the doctor or dentist was undertaking training before the out-of-programme experience.

High value inward investment posts

You do not need to carry out a resident labour market test where the job offer is for the migrant to work in support of a posting from an overseas firm to you in connection with the relocation of a high value business to the UK or a significant new inward investment project, where:

  • you were registered in the UK with Companies House no earlier than 3 years before the date the CoS was assigned
  •  you are the registered branch or wholly owned subsidiary of a business which has its headquarters and principal place of business outside the UK
  •  the relocation or inward investment involves new capital expenditure of £27 million or the creation of at least 21 new UK jobs

and you are able to provide evidence of this, if required. You or the overseas business of which you are the branch or subsidiary must be the entity directly making the investment – for this purpose, working in support of an inward investment project does not include the supply of services to a third party client who is making an investment. The capital expenditure or job creation does not need to have taken place before you assign the CoS, but you must be able to provide evidence that this will take place as part of the existing project.

The Tier 2 (General) annual limit

There is an annual limit of 20,700 certificates of sponsorship (CoS) available to sponsors under Tier 2 (General). The limit runs from 6 April each year to 5 April the following year.

The limit applies to:

  • CoS for new hires earning under £159,600 per year coming work in the UK from overseas – we call these ‘restricted’ jobs, for which a ‘restricted’ CoS is needed
  •  CoS for the dependant of a migrant who was last granted leave under Tier 4, where that dependant is already in the UK and wishes to change (‘switch’) into Tier 2 (General) and will be paid less than £159,600
  •  CoS for Croatian nationals

The following are exempt from the limit and we call these ‘unrestricted’ jobs, for which an ‘unrestricted’ CoS is needed:

  •  high value inward investment posts – where the job offer is for the migrant to work in support of a posting from an overseas firm to you in connection with the relocation of a high value business to the UK or a significant new inward investment project, where:
    • you were registered in the UK with Companies House no earlier than 3 years before the date the CoS was assigned
    •  you are the registered branch or wholly owned subsidiary of a business which has its headquarters and principal place of business outside the UK
    •  the relocation or inward investment involves new capital expenditure of £27 million or the creation of at least 21 new UK jobs

and you are able to provide evidence of this if required. You, or the overseas business of which you are the branch or subsidiary, must be the entity directly making the investment – for this purpose, working in support of an inward investment project does not include the supply of services to a third party client who is making an investment. The capital expenditure or job creation does not need to have taken place before you assign the CoS, but you must be able to provide evidence that this will take place as part of the existing project.

  • new hires: high earners – where the annual salary for the job is £159,600 or more
  • all applications by migrants who are applying from within the UK, including those extending their stay in Tier 2, changing employer, or switching immigration category -the only exception to this is where the migrant switching into Tier 2 (General) is in the UK as a dependant of another migrant who was last granted leave under Tier 4 and will be paid less than £159,600

Note: these dependants do count towards the limit and you must apply for a restricted CoS for them.

  • Although a CoS assigned to a Croatian national counts towards the limit, you do not need to apply for a restricted CoS for them and should assign an unrestricted CoS instead.

 

Rates of pay for Tier 2 (General)

  1. The minimum salary you must pay for a Tier 2 (General) migrant is £30,000 per year or the appropriate rate of pay for the job as stated in the codes of practice in Appendix J of the Immigration Rules, whichever is higher, unless one of the exceptions in this section applies.Important note: Applicants who were initially granted leave to enter or remain with a CoS assigned before 24 November 2016 will continue to be subject to the £20,800 threshold, but there are no transitional arrangements for those initially granted leave with a CoS assigned between 24 November 2016 and 5 April 2017 – they are subject to the £30,000 threshold if they apply for an extension using a CoS assigned from 6 April 2017 and none of the other exemptions given in the ‘Rates of pay section apply.
  2. These rates will be updated regularly to reflect the latest available salary data.
  3. The rates of pay are set out in Appendix A of the Immigration Rules.
  4. For most jobs in Appendix J of the Immigration Rules, there are 2 pay thresholds. The lower pay threshold is for ‘new entrants’ the other pay threshold is for ‘experienced’ workers. The thresholds have been set to make sure that the resident labour market is not undercut. The rates of pay are in line with current earnings of settled workers. If the migrant is considered to be a ‘new entrant’ you may pay a minimum of £20,800 per year or the appropriate rate of pay in Appendix J, whichever is higher.
      • Tier 1 (Post-study work)
      • Tier 1 (Graduate Entrepreneur)
      • the International Graduates Scheme
      • the Fresh Talent Working in Scotland Scheme
      • the Science and Engineering Graduates Scheme
      • Tier 4 or as a student and they have received final results confirming thatThe new entrant pay threshold reflects the fact that people in the early stages of their career are generally paid less than their more experienced counterparts. Unless the CoS is assigned for more than 3 years, the new entrant threshold can be paid if you have met the resident labour market test by carrying out a milkround, or the migrant is changing (‘switching’) into Tier 2 (General) and was last granted leave to enter or stay in the UK under any of the following:they have passed and will be (or have been) awarded either:
        • a UK recognised bachelor’s or master’s degree
        • a UK Postgraduate Certificate in Education
        • a Professional Graduate Diploma of Education
        • they have finished a minimum of 12 months study in the UK towards a UK PhD
  5. Unless the CoS is assigned for more than 3 years, the new entrant pay threshold can also be paid if the migrant is under the age of 26 on the date of their application for Tier 2 leave.
  6. You should not sponsor a migrant at the ‘new entrant’ pay threshold if you expect that you will want to sponsor them for more than 3 years and you will not pay them the experienced rate after this time.
  7. In all cases, including where the migrant is applying for a period of leave which will bring their total stay under any combination of Tier 2 leave, or as a Work Permit holder, beyond 3 years and one month, the ‘experienced’ workers threshold must be paid. This means that any worker initially sponsored at the ‘new entrant’ threshold must be paid at least £30,000 or the ‘experienced worker’ rate for their job, if they are needed for more than three years.
  8. This could be if:
    1.  they are still under the age of 26, but are applying to extend their stay in a Tier 2 category to 5 years, the ‘experienced’ workers threshold must be paid
    2.  you assign a CoS for more than 3 years

Reductions in salary

  1. If you decide to cut a migrant’s salary package to a lower rate than you stated on their CoS, such as, if the allowances offered have changed, the new rate that you pay to them must meet the current appropriate rate requirements.
  2. If the new rate is below the appropriate rate, you cannot continue to sponsor them and you must report this to us using your sponsor management system (SMS) account.
  3. There is an exception to this rule if the migrant is undertaking professional examinations to assess whether their skills meet UK standards before starting work for you, where the passing of such examinations is a regulatory requirement for the job the migrant will be sponsored to do, for example, where they are taking OSCE or PLAB tests
  4. The only other exceptions to this rule are:
    • where the reduction is due to the migrant taking a period of:
      • maternity leave
      • paternity leave
      • shared parental leave
      • adoption leave
    • long-term sick leave for more than one continuous calendar month
    • where a doctor is taking unpaid leave with your agreement to assist in the
      Ebola crisis – this limited concession will enable you to continue sponsoring
      the migrant for up to 6 months of unpaid leave per year, you should use the
      SMS as usual to tell us of the changes
    • in the case of a Tier 2 (ICT) migrant where the reduction is due to them not
      being physically present in the UK
  5.  You must not continue to sponsor a migrant who is absent from work without pay for 4 weeks or more in total, other than for the reasons listed above. You must report this using your SMS account. This applies whether the migrant is absent from work over a single period or more than one period during any calendar year (1 January to 31 December). The 4 weeks is worked out according to the migrant’s normal working pattern.
  6. If a sponsored migrant wishes to take a longer period of other unpaid leave, such as a sabbatical, you must stop sponsoring them and report this using your SMS account
  7. If the migrant was granted leave under Tier 2 (General) as a ‘high earner’ and the reduction in salary takes them below the high earner threshold, the migrant must make a new application for leave.

Requirements for sponsoring a Tier 2 (General) migrant in a digital technology job on the shortage occupation list

You must meet certain conditions before you are allowed to sponsor under this provision and we will assess you before you are allowed to allocate CoS for these jobs.

  • The assessment will be made when you apply for your licence, if you are not yet licensed. You should indicate on your application that you intend to sponsor migrants in these jobs and supply the extra evidence in Appendix A of the guidance for sponsors.
  • If you already have a licence and want to sponsor migrants under this provision, you must apply via your SMS account, using the ‘Request any other change to your licence details’ function and selecting ‘Digitech Application’.
  • To meet the conditions you must:
  • be a small or medium sized enterprise (SME) – this means that you must have between 20 and 250 employees;
    • if you have fewer than 20 employees you may still apply but you will need a letter from the Department for International Trade (DIT) or economic devolved government departments in Scotland, Wales or Northern Ireland confirming that they have been working with your company about the company’s trade or investment activity; DIT and economic devolved government departments in Scotland, Wales or Northern Ireland help companies locate in the UK and/or grow internationally through exporting from the UK Note: if you have fewer than 20 employees and you don’t provide a letter from DIT or an economic devolved government department in Scotland, Wales or Northern Ireland you cannot sponsor migrants under the digital technology shortage occupation provision
    • you cannot use this provision if you have more than 250 employees Note: if your company is not already working with DIT or an economic devolved government department in Scotland, Wales or Northern Ireland as either an inward investor or an exporter, visit their website to learn more about what they do
  • be independent in the UK – this means that you must not be more than 25% owned by a company which has one or more other establishments in the UK, and one of those establishments employs more than 250 employees – you may, however, be owned (partly or wholly) by an overseas company with no other branch, subsidiary or other representative in the UK
  • not have been established in the UK for the purpose of supplying services exclusively to another company in the UK
  • You are limited to sponsoring a maximum of 10 employees at one time in all of these digital technology shortage occupations, which are set out in the shortage occupation list. This means that you may not assign more than 10 CoS for such jobs that permit migrants to be in the UK at the same time, this includes both restricted and unrestricted CoS.
  • If the number of your employees increases above 250, you must tell us. You will not be able to recruit any more workers under these shortage occupation provisions, but you may continue to sponsor the migrants that you already have. You may recruit more migrants into these roles providing you first do a resident labour market test for the job.
  • You will be required to keep more information on these jobs and migrants, to show that the jobs and migrants qualify for the shortage occupation classification.

What is a certificate of sponsorship?

A certificate of sponsorship (CoS) is not a paper certificate or document, but a virtual document, like a database record. When you have followed all of the rules set out in this guidance and you are ready to sponsor a migrant under Tier 2 or Tier 5, you must assign a CoS to them using your sponsor management system (SMS) account. This involves working through a short online form where you give us information about the migrant you want to sponsor and the work they will do. All of the information you enter will be stored and can be viewed by UKVI. A CoS can only be assigned by a person who has access to the SMS as a level 1 or level 2 user.

When you assign a CoS, a reference number is generated and you must give this number to the migrant you want to sponsor. They must then include the reference number in their application for entry clearance, if outside the UK or leave to remain under Tier 2 or Tier 5, if inside the UK or worker authorisation if they are a Croatian national. When you give the CoS number to the migrant, you should treat it as a secure and confidential document.

The migrant may ask for other information that was part of the process of generating the reference number. You can give the migrant a copy of their CoS and there is a function within your SMS account to print any CoS you have assigned. You can do this by using the ‘View CoS’ function, where you can open the CoS and choose ‘Print’.

When a CoS you have assigned has been used to support an application, it will show in your SMS account as ‘used’ and it cannot then be used again. If the migrant’s application is refused and they wish to re-apply, you must assign a new CoS to them to quote on their new application. The only exception is where the CoS has been assigned to and used by a migrant who is a non-visa national and who is entering the UK under the Tier 5 (Temporary Worker) Creative and Sporting sub category, for fewer than 3 months.

If the migrant’s application was rejected or withdrawn, the CoS will still show in your SMS account as ‘assigned’. It can then be used again to support a further application.

Processes are in place at the port of entry for migrants who come to the UK under the Tier 5 (Temporary Worker) Creative and Sporting sub category, if they have not applied for entry clearance because they are:

  • non-visa nationals; not nationals of a country whose nationals must always have a visa to enter the UK
  •  seeking entry to the UK for 3 months or fewer

Under the Tier 5 (Temporary Worker) Creative and Sporting, you can assign a ‘group CoS’ to all members of a group.

Once you have assigned a CoS, it can be used by the migrant you have assigned it to, to support their application at any time during the 3 month period from the date it was assigned. During this period a migrant cannot be assigned another CoS by any other sponsor. If the migrant does not use the CoS within this 3 month period to make an application, it will expire and will show as ‘expired’ in your SMS account. Please note, that a migrant cannot apply for Tier 2 or Tier 5 leave more than 3 months in advance of the start date stated on their CoS.

The start date given on the CoS must be the date that the migrant will start working for you. A migrant can be granted entry clearance no more than 14 days before the start date given on the CoS. Once the entry clearance has been granted, it is possible to delay this start date but, in the case of a Tier 2 (General) migrant, any revised start date cannot be put back more than 4 weeks from the start date on the CoS or the date entry clearance is granted. Under Tier 2 (Intra-Company Transfer (ICT)), it is possible for the start date to surpass the 4 weeks as long as the migrant continues to be paid by the sending overseas entity.

The start date given on the CoS must be the date that the migrant will start working for you. A migrant can be granted entry clearance no more than 14 days before the start date given on the CoS. Once the entry clearance has been granted, it is possible to delay this start date but, in the case of a Tier 2 (General) migrant, any revised start date cannot be put back more than 4 weeks from the start date on the CoS or the date entry clearance is granted. Under Tier 2 (Intra-Company Transfer (ICT)), it is possible for the start date to surpass the 4 weeks as long as the migrant continues to be paid by the sending overseas entity.

Assigning a CoS does not guarantee that the migrant will succeed in being granted entry clearance, leave to remain or worker authorisation. They must meet all of the criteria for the Tier 2 or Tier 5 leave they are applying for, or for worker authorisation if they are a Croatian national.

Before assigning a CoS, you should talk to the migrant about their current immigration status, as this may affect any application they make because of the rules on switching (‘changing’) from one immigration category to another

Cancelling a certificate of sponsorship

UKVI can cancel a certificate of sponsorship (CoS) assigned by you if they  find it should not have been assigned, for example, if it was assigned through misrepresentation or fraud.

You can withdraw a CoS assigned to a migrant, which has not yet been used to support an application for leave to enter, or remain in the UK. This can be done using your SMS account.

A migrant can only have one CoS assigned to them at any given time. If you have assigned a CoS to a migrant who intended to start working for you, but then decided to take up a job offer with a different sponsor, they must contact you to arrange the withdrawal of their CoS. This is because the sponsor who they want to start work for will not be able to assign a CoS to them until you have withdrawn the one you assigned. They must request this in writing or by email giving you 5 working days to action this. If you do not action their request they must send a reminder, after which you will have a further 5 working days.

If you refuse, or fail to withdraw the CoS within the set time, the migrant can ask UKVI to cancel it. UKVI  will not cancel it until they have talked to you about why you have not done as they have asked. Failure to action this request from a migrant, within the set time, may lead to us taking action against you.

When a CoS is cancelled or withdrawn, the fee will not be refunded and we will refuse any application that is supported by that CoS.

If a migrant is in the UK with entry clearance, leave to remain or worker authorisation, we will cancel or reduce their leave, or revoke their worker authorisation if we find the CoS which supported their application was improperly assigned. If this happens:

  • their permission to be in the UK as a Tier 2 or Tier 5 migrant will be shortened to 60 calendar days, to give them a chance to find a new sponsor, if they were not actively involved in the CoS being assigned, or issued improperly
  •  immediately ended (curtailed) if they were actively involved
  •  their worker authorisation will be revoked

Skill level for jobs under Tier 2 (General) and Tier 2 (IntraCompany Transfer)

Migrants sponsored under Tier 2(General) and Tier 2 (Intra-Company Transfer (ICT)) can only work in a skilled occupation at or above Regulated Qualifications Framework (RQF) level 6, or the equivalent in Scotland. This does not mean that the person employed to fill the job must be educated to that level, it means that the work that person will do is pitched at that level.

The only exceptions to this skill level rule are where the migrant:

  •  will be sponsored under Tier 2 (General) for a job in a shortage occupation listed in Appendix K of the Immigration Rules
  •  will be sponsored in one of the following creative sector standard occupational classification (SOC) codes:
    • o 3411 – Artists
    • 3412 – Authors, writers and translators
    • 3413 – Actors, entertainers and presenters
    • 3414 – Dancers and choreographers
    • 3422 – Product, clothing and related designers
  •  is a Croatian national who needs to apply for worker authorisation – Croatian nationals can be sponsored to fill vacancies at or above RQF level 4 or the equivalent level in Scotland
  •  is already working in the UK under Tier 2 (General) or Tier 2 (ICT) and they first successfully applied under one of those routes under the rules in place between 6 April 2011 and 13 June 2012; in these circumstances, the migrant can be sponsored to fill a vacancy at or above RQF level 4, or the equivalent level in Scotland – before you apply for a licence or request a CoS to employ the migrant you must tell us that they meet these exception criteria, why they are eligible and provide us with their name for us to check their eligibility. We will close the transitional arrangements for workers sponsored at RQF level 4 from July 2018. This will give those workers sufficient time to apply to extend their stay for long enough to reach the qualifying period for settlement. We will continue to allow workers sponsored at these RQF levels to apply for settlement beyond these dates

You must add a sponsor note when you assign a CoS to explain that they meet these exception criteria and why they are eligible

If you sponsor a migrant who is already in the UK, you will need to find out when they were first granted leave under Tier 2 or the Work Permit arrangements to work out whether they are allowed to take the job you intend to offer them. You should ask for any evidence they have from when they first successfully applied for Tier 2 or the Work Permit arrangements before assigning a CoS. If you assign a CoS and their application is refused because the skill level requirement is not met, we will not refund the CoS fee.

 

Suspending a Sponsor licence

If UKVI  believe you are breaching your duties and pose a threat to immigration control, for example, assigning CoS to migrants who do not qualify to come to the UK, UKVI may suspend your licence while they make further enquiries.

You will not be able to assign any CoS while your licence is suspended. You must continue to comply with all sponsor duties and any requirements set out in this guidance, throughout the period of suspension. If your licence is due to expire during the period of suspension, you must still apply to renew it if you want to keep it.

If your licence is suspended, it is suspended in all the tiers and categories you are licensed under and UKVI will remove your entry from the public version of the register of sponsors during the suspension period. Migrants who you are sponsoring at the time of the suspension won’t be affected, unless we decide to revoke your licence.

If UKVI decide to revoke your licence, UKVI will write to you to tell you of this. There is no right of appeal and you won’t be allowed to apply for a sponsor licence again until the end of the appropriate cooling off period from the date your licence is revoked.

If UKVI  decide not to revoke your licence we will lift the suspension and reinstate your entry on the public version of the register of sponsors on the GOV.UK website.

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What happens if my sponsor licence is reinstated after being suspended?

If your licence has been suspended and UKVI do not later revoke it UKVI  will
reinstate it either as an A-rating or a B-rating.
If UKVI  reinstate your licence with a B-Rating you will not be given a further 20
working days to reply as this process will have been completed during the
period your licence was suspended.
Re-instatement with a B-rating means you must comply with an action plan.

We may also reduce, or set to zero, the number of CoS you are allowed to
assign. The ‘Sponsorship action plans’ section has more information on action
plans.

What happens to my sponsored migrants if my licence is suspended?

You will not be able to assign any certificates of sponsorship (CoS) when your licence is suspended.

While your licence is suspended, if a migrant makes an application supported by a valid CoS that you assigned before your licence was suspended, we will not decide their application until the reason for suspension has been resolved, unless the application falls for refusal on other grounds (including where we consider that the job is not a genuine vacancy).

If you are an endorsing body under the Tier 1 (Graduate Entrepreneur) route and a migrant applies for Tier 1 leave with a valid letter of endorsement from you, we will not decide the case until the reason for the suspension has been resolved, unless the application falls for refusal on other grounds.

If a migrant has already been granted entry clearance on the basis of a CoS assigned by you but they have not yet travelled to the UK, they will be allowed to enter the UK and start working for you. We advise all migrants to check the status of their sponsor’s licence before they travel.

During the time that your response is being prepared or considered, we may tell migrants who have been assigned a CoS by you that you are suspended from the sponsor register, however, we will not disclose the reasons why.

 

Tier specific duties under Tier 2 (General) and Tier 2 (IntraCompany Transfer)

Some Tier 2 (General) migrants are subject to an annual limit. You must apply for a ‘restricted certificate of sponsorship (CoS)’ if you wish to sponsor them. Migrants who are not subject to the annual limit can be sponsored using an ‘unrestricted CoS’. You must also understand the different requirements for assigning a restricted or unrestricted CoS.

You must not assign:

  •  a restricted CoS to a migrant for any job other than the one you described in your application for that restricted CoS
  •  a restricted CoS where an unrestricted CoS is needed
  •  an unrestricted CoS where a restricted CoS is needed

When you assign a CoS under Tier 2 (General) you guarantee one of the following:

  • You carried out a genuine resident labour market test in accordance with the rules in force at the time
  •  the job is exempt from the resident labour market test
  •  the job appeared in a UK-wide shortage occupation listed in Appendix K of the Immigration Rules, on the date that you assigned the CoS
  •  if the job is in Scotland, the job appeared in a shortage occupation listed for Scotland in Appendix K of the Immigration Rules, on the date that you assigned the CoS
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You also guarantee all of the following:

  •  where it was a requirement to carry out a resident labour market test, the migrant will be paid in line with the rate you stated when you advertised the job
  •  the migrant will be paid at or above the appropriate rate including specific permitted allowances for that job
  •  the job is a genuine vacancy, see complying with the law and genuine vacancy

duties of a licensed sponsor

As a licensed sponsor you will benefit directly from migration and UKVI expect you to play your part in ensuring that the system is not abused. This means that you must fulfil certain duties. Some of these duties apply to all sponsors, whilst others are specific to those licensed under certain tiers or categories.

The objectives of these duties are to:

  • prevent abuse of assessment procedures
  •  capture early any patterns of migrant behaviour that may cause concern
  •  address possible weaknesses in process which can cause those patterns
  •  monitor compliance with Immigration Rules

When do my sponsor duties start and finish?

Your responsibilities as a sponsor start on the day we grant your licence and end if:

  •  you surrender your licence
  •  we revoke your licence

Your responsibility for each migrant starts on the day you assign a CoS to them.

Your responsibility for each migrant ends:

  •  when you tell us that you are no longer sponsoring them for any reason
  •  when they leave the UK and their entry clearance or leave to remain lapses
  •  when they are granted further leave to remain with a different sponsor or in another immigration category which means that you do not need to sponsor them under Tier 2 or Tier 5 anymore
  •  where they are a Croatian national and they have worked lawfully in the UK for a period of 12 continuous months

Record keeping duties

You must keep the following records or documents, and make them available to us on request:

  •  a photocopy or electronic copy of the relevant page, or pages, of each sponsored migrant’s passport, worker authorisation (Purple Registration Certificate) or UK immigration status document and biometric residence permit (if available) – that show their entitlement to work including their period of leave to remain in the UK
  •  each sponsored migrant’s contact details – up to date UK residential address, telephone number and mobile telephone number. Appendix D: record keeping of the guidance for sponsors has more information.

You must keep the following records or documents, and make them available to us on request:

  •  a photocopy or electronic copy of the relevant page, or pages, of each sponsored migrant’s passport, worker authorisation (Purple Registration Certificate) or UK immigration status document and biometric residence permit (if available) – that show their entitlement to work including their period of leave to remain in the UK
  •  each sponsored migrant’s contact details – up to date UK residential address, telephone number and mobile telephone number.
  • You must give us, when asked, any documents relating to your sponsored migrants or the running of your organisation that we consider relevant to assessing your compliance with your duties as a sponsor. We might, for example, ask for details of your recruitment practices so that we can make sure that a resident labour market test was carried out correctly
  • Since 2008, we have been introducing biometric residence permits. These are immigration documents which contain details of the holder’s immigration status, fingerprints and facial image. Where the migrant has a biometric residence permit, you must keep a copy.
  • If you are a higher education institution endorsing a migrant under the Tier 1 (Graduate Entrepreneur) route, you must keep evidence of the selection process that resulted in that endorsement.
  • If you sponsor a child aged under the age of 18, you must keep a copy of the letter from their parents or legal guardian, or just one parent if that parent has sole legal responsibility for the child. This should consent to the arrangements for the child’s application, travel, reception and care arrangements in the UK. Children aged 16 and 17 have the legal right to live independently in the UK, and may make their own arrangements for accommodation, but they need the consent of their parent(s)/legal guardian to do this and to travel to the UK if applying from overseas.

Reporting duties

You must report certain information or events to UKVI using the sponsor management system (SMS), within any time limit set. The ‘What is the sponsor management system’ section has more information on the SMS. Any information reported about a migrant’s non attendance, non compliance or disappearance will be used to take enforcement action against them.

You must report the following within 10 working days:

  •  if a sponsored migrant does not turn up for their first day of work – you must include any reason given for their non-attendance, for example a missed flight: you must include the last recorded residential address and contact telephone number for the migrant, and any personal email addresses you have for them
  •  if a sponsored migrant’s contract of, or for employment, or services or registration is terminated earlier than shown on their certificate of sponsorship (CoS), for example, if the migrant resigns or is dismissed you must include the name and address of any new employer that the migrant has moved to, if known; you must include the last recorded residential address and contact telephone number for the migrant, and any personal email addresses you have for them
  • if you stop sponsoring a migrant for any other reason, this could be if:
    • you become aware that they have moved into an immigration route that does not need a sponsor
    • they are absent from work without pay for 4 weeks or more, which is not covered by the exceptions in reduction in salary; you must include the last recorded residential address and contact telephone number for the migrant, and any personal email addresses you have for them
  • if there are any significant changes in the sponsored migrant’s circumstances, for example:
    • o a promotion or change in job title, or core duties, other than those which need a change of employment application – the ‘Change of employment’ section has more information on this
    • a change of salary from the level stated on the CoS, other than changes due to annual increments or bonuses
    • a change of salary from that stated on the CoS due to maternity, paternity shared parental or adoption leave, or a period of long term sick leave lasting one month or longer
    • the location they are employed at changes – this includes where a sports player moves on loan
    • if a sponsored migrant’s employment is affected by TUPE or similar protection – this could be if you are involved in a merger or demerger
    • any information which suggests that a sponsored migrant or a migrant you endorsed under the Tier 1 (Graduate Entrepreneur) route (where applicable) is breaching the conditions (‘rules’) of their leave
  • If a sponsored migrant is absent from work for more than 10 consecutive working days without permission, you must report this within 10 working days  of the 10th day of absence.

If there are any significant changes in your own circumstances, for example, if you sell all or part of your business, stop trading, go into administration, substantially change the nature of your business, are involved in a merger or are taken over, you must report this within 20 working days.

If you are endorsing a migrant under the Tier 1 (Graduate Entrepreneur) route, you must make contact with them at least once every quarter (within a 12 month period). If a migrant misses an expected contact point without your permission, you must report this by email to the Tier 1 Graduate Entrepreneur team within 3 months of it happening.

You must include in your report:

  •  whether or not you are continuing to endorse the migrant
  •  if you are continuing to endorse them, why

You must give the police any information that suggests any migrant you are sponsoring, or endorsing under any tier may be engaged in terrorism or criminal activity.

You must report details of any third party intermediary, whether in UK or abroad, that has assisted you in the recruitment of migrant employees.

Complying with the law

To make sure you are complying with our immigration laws, you must:

  • only employ migrants who are appropriately qualified, registered or experienced to do the job, or in respect of a Tier 2 (General) migrant, will be, by the time they begin the job – such as if the migrant is working as a doctor, you must make sure that they have the correct registration that allows them to practise legally in the UK
  •  you must keep a copy of any registration document, certificate or reference that confirm they meet the requirements of the specific job, and give this to us on request – we may request further information or evidence from you or the migrant to confirm this requirement
  •  not employ migrants where they don’t have the experience or permission to do the job in question, and stop employing any migrants who for any reason are no longer entitled to do the job
  •  not assign a CoS where there is no genuine vacancy or role which meets the Tier 2 or 5 criteria – if you assign a CoS and we do not consider that it is for a genuine vacancy, we reserve the right to suspend your licence, pending further investigation which may result in your licence being revoked
  •  only allow the migrant to undertake the specific role set out in their CoS –
    • only assign a CoS to migrants who you believe will meet the
      requirements of the tier or category, and are likely to comply with the
      conditions (‘rules’) of leave or worker authorisation; the
      requirements and conditions of leave or worker authorisation are set
      out in the Immigration Rules and the Accession of Croatia
      (Immigration and Worker Authorisation) Regulations 2013 for
      Croatian nationals only
  • disclose if you assign a CoS to a family member of anyone else within the sponsor organisation if it is classed as a small or medium sized business, or if you are aware that you are assigning a CoS to a family member of anyone else within a sponsor organisation classed as a large business – this should be done via the ‘notes’ field on the CoS
  • only employ migrants in a shortage occupation listed in Appendix K of the Immigration Rules if you qualify to sponsor the migrants, where there are restrictions on who can sponsor them
  •  comply with UK employment law, for example, National Minimum Wage and paid holiday entitlement
  •  hold suitable planning permission or Local Planning Authority consent to run your type/class of business at your trading address (where this is a Local Authority requirement)
  •  if you are a food business, be registered with or approved by the relevant food authority
  •  if you are employing a migrant who is working for you on a Work Permit, you must comply with all associated conditions, for example, you must pay them at or above the rate of pay shown on the Work Permit
  •  only assign a CoS to a migrant if you are satisfied that they intend and are able to fill the role
  •  where applicable, only assign a CoS for a role which is at or above the minimum skill level as set out in this guidance
  •  only employ a migrant who has had a Disclosure and Barring Service (DBS) check, where this is a requirement for the role

Genuine vacancy

A genuine vacancy is one which:

  •  requires the jobholder to perform the specific duties and responsibilities for the job and meets all of the requirements of the tier and category – if you have already assigned a CoS, the vacancy must be for the period of employment stated on the CoS
  •  does not include dissimilar and/or lower-skilled duties

We may request additional information and/or evidence from you or the migrant to establish this requirement, and may refuse the migrant’s application if this is not provided within our deadline.

Examples of vacancies that are not considered to be genuine include but are not limited to:

  •  one which contains an exaggerated or incorrect job description to deliberately make it appear to meet the requirements of the tier and category 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
  •  advertisements with requirements that are inappropriate for the job on offer, and have been tailored to exclude resident workers from being recruited

 

 

What is the sponsorship management system?

Once licensed, you will be given access to use the sponsorship management system (SMS). This online function lets you carry out day to day activities and report any changes to us, such as, a change of address. You will also use it to assign certificates of sponsorship (CoS) to migrants who wish to come to, or stay in the UK to work, and to fulfil your reporting duties for your sponsored migrants.

UKVI call a person who has access to the SMS a ‘user’. The SMS allows users 2 levels of access – ‘level 1’ and ‘level 2’. The level decides the type of access (permissions) the user has to the system and the functions they can perform, the ‘Level 1 user’ and ‘Level 2 user’ sections have more information.

Your SMS account is also a source of information about your sponsor licence. You can see details on how many SMS users you have appointed and who they are, the date your licence will expire, the number of CoS left to assign, and when your allocation of CoS will expire. Your SMS account also has a ‘message board’ where UKVI post useful messages.

You need to regularly access your SMS account to review and update your licence details and to keep up to date with the latest news and messages, and any changes that may be coming up. UKVI recommend that your level 1 user accesses your account at least once a month.

When UKVI grant your sponsor licence, UKVI set up your SMS account and send the level 1 user’s ‘user name’ to your authorising officer by post. UKVI send the level 1 user their password by email. Once your level 1 user has successfully accessed your SMS account, they can perform a number of functions. The ‘Level 1 user’ section has more information on this.

SMS users must never give their password to anyone else. If they do, UKVI will take action against you.

You can use the SMS on GOV.UK to:

  •  manage or renew your organisation’s licence or services
  •  create and assign certificates of sponsorship to prospective employees for Tiers 2 and/or 5
  • report changes of circumstances of your sponsored employees or students, including withdrawal of sponsorship

You are responsible for your actions and the actions of a representative or employee who assigns CoS on your behalf. Any non-compliance with the rules on assigning CoS will result in us taking action against you. If UKVI find you are employing an illegal migrant worker because your recruitment practices are negligent, UKVI may issue you with a civil penalty and refer your case for prosecution. You must have at least one level 1 user who must be your employee in place throughout the life of your licence. If UKVI find you have no level 1 user in place at all, this means you cannot fulfil your sponsor duties and UKVI will take action against you. UKVI will also take action against you if you have no SMS users in place at all.

What happens if my circumstances change?

You must tell us of any changes to your details. UKVI may ask for more details and documents to support the change you are requesting.

Your level 1 user must use your SMS account ‘request changes to sponsor details’ function to:

  •  change your address
  •  change your name
  •  change your existing key contact or authorising officer details
  •  tell us about changes to your structure, such as more branches or sites, or new linked entities in the UK or overseas if you are licensed under Tier 2 (ICT)
  •  tell us if you are convicted of a relevant offence
  •  tell us about a change in the status of any registration by a governing body that you need to hold
  •  replace your authorising officer and/or key contact
  •  amend your organisation details, such as telling us of takeovers and mergers
  •  tell us that you have sold all or part of your business
  •  tell us of any other changes to your circumstances, such as adding or removing a representative or surrendering your licence

The following changes you report may automatically update your SMS account:

  •  your main, or head office address
  •  the address of your authorising officer, key contact, or level 1 user – if their new address matches your main or head office address, or the address of your representative for a key contact or level 1 user

UKVI will write to you if we are able to make these or any other changes automatically.

If you request a change to the name on your licence, UKVI will need to understand why you are changing your name because, in some circumstances, you may have to apply for a new licence. This could be if the only reason you are changing your name is because you are incorporating yourself for the first time, and nothing else is changing, we can change the name on your licence. If your change of name is part of a wider change, this could be if you are involved in a merger or takeover, you may have to apply for a new sponsor licence.

When you send in the changes UKVI will tell you what documents you must send  to support your request. For some changes, such as replacing your authorising officer or surrendering your licence, you also have to sign a declaration. The ‘Reporting duties’ section has more information on the timescales for reporting changes to UKVI.

There are circumstances when you have to complete more than one action on the SMS. This could be if you tell us of a change of address, you may also need to tell UKVI of a change to the working address for your key personnel. You must request each change separately.