We are often approached by individuals involved with the running of a business, wanting to know whether their company can sponsor a family member under a sponsor licence. Most commonly this would be under a Skilled Worker sponsor licence, until recently known as a Tier 2 sponsor licence.
The short answer is ‘Yes, it may be possible to sponsor a family member, but you will need to be able to make key adjustments. And you can expect closer scrutiny by the Home Office.
Here are what are in my view the key considerations and adjustments you will need in place if you want to sponsor a family member.
A level 1 or 2 user cannot assign a certificate of sponsorship to a family member
It is not prohibited to sponsor a family member of someone already involved with the running of your business. However, they have put a specific restriction on a Level 1 User or a Level 2 assigning a certificate of sponsorship to their own family member.
The Home Office has a wide definition of a family member. It covers:
a spouse, civil partner or unmarried or same-sex partner
a parent or step-parent
a son or step-son
a daughter or step-daughter
a brother, step-brother or half-brother
a sister, step-sister or half-sister
a nephew, niece, cousin, aunt or uncle. father-in-law, mother-in-law, brother-in-law, sister-in-law, son-in-law or daughter-in-law
This prohibition on assigning a certificate of sponsorship is less likely to be a problem in larger businesses, where someone who is not the family member is more likely to be able to assume the role of the Level 1 User.
Bear in mind that there is no prohibition on having a Level 1 User who is related to the sponsored migrant per se. There is just a specific restriction on a family member undertaking the act of assigning the certificate of sponsorship (and there is a separate duty to disclose the family relationship to the Home Office, as explained below).
Ideally, keep the relative well-away from the position of Level 1 or 2 User, but again, remember you will still need to disclose to the Home Office the family relationship, see below. Alternatively, you could appoint a second Level or 2 User to undertake the specific act of assigning the certificate.
In small businesses, however, there may not be any other employee who can undertake this role – especially once you allow for the various rules on who can and cannot act as a level 1 user. It may be possible to appoint HR professional to undertake this role, provided they are also engaged by you to deliver all or part of your HR function.
If you want to go down the road of appointing a HR professional as a Level 1 or 2 User, then in doing so you must continue to adhere to the rule that states you must always have at least Level 1 that is either a director, partner or employee. You must also have at least one Level 1 User that is a ‘settled worker’.
You must disclose to the Home Office if you assign a certificate of sponsorship to a family member of anyone in your organisation
Even if you get around the Level 1 user issue above, you will still always need to disclose to the Home Office if you sponsor a family member of anyone in the organisation by assigning a certificate of sponsorship to them. This is a clear-cut duty if you are a small or medium-sized business and ignorance of the familial relationship appears to be no excuse. For a definition of what is classed as a small/medium or large business, see here. If you are a large business, then this duty to disclose arises only if you are aware you are assigning a certificate to a family member.
Disclosure must be made by way of a sponsor note.
What may happen if I disclose to the Home Office the sponsorship of a family member?
If the Home Office know you are sponsoring a family member this appears to be something of a ‘red flag’ and increases the likelihood of a compliance visit. However, this is hugely favourable to not disclosing this to the Home Office and them finding out.
What happens if you fail to disclose to the Home Office the sponsorship of a family member?
If the Home Office discovers that you are sponsoring a family of anyone within your organisation, and you have not already disclosed this to them, then this is a ground for revoking your licence. The Home Office are likely to further question the genuineness of the role and probably seek to find multiple reasons to revoke your licence.
If you lose your licence, then you also must stop sponsoring and employing any individuals working under the licence. You will be subject to a ‘cooling-off period’, meaning you cannot apply for a licence for at least six months from the date of the decision.
What happens the Home Office find out that I have assigned a certificate of sponsorship to a family member?
If you already hold a sponsor licence and the Home Office discover that a Level 1 or Level 2 User has assigned a certificate of sponsorship to a family member, then this is a mandatory ground to revoke your licence. This means your licence will be revoked. Again, if you lose your licence, then you also must stop sponsoring and employing any individuals working under the licence. You will be subject to a ‘cooling-off period’, meaning you cannot apply for a licence for at least six months from the date of the decision.
Applying for and maintaining a sponsor licence is a complicated business at the best of times. If you either are sponsoring, or intend to sponsor a family member of anyone within your organisation, then you should proceed with extra caution. You are likely to increase your chances of a compliance visit and you can expect greater suspicion and scrutiny on the part of the Home Office – that is assuming you do not fall foul of any the above provisions.
However, difficulties around the sponsorship of family members are often surmountable provided you pay careful attention to the rules around sponsorship and what you can and cannot do.
At Truth Legal we are experts in sponsorship as well as assisting employers if they want to sponsor a family member. If you are an employer and are considering applying for a licence, and/or are looking to sponsor a family member, then please contact us.
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