On 1 December 2020, the Government introduced major changes to the sponsorship system – so significant that we could not merely tweak our popular Tier 2 legal guide, but instead have put together a brand new legal guide specifically for the new Skilled Worker route. This guide will be updated as we continue to amass more practical experience of how best to navigate this new route.
As Tier 2 General is replaced by the Skilled Worker route, some of the changes are mere rebranding. However, many changes are substantial as well as cosmetic. Let’s get the bad news out of the way first (and this is a biggie): as of 1 January 2021, free movement ends, and you will generally need a sponsor licence to sponsor new EU arrivals. This aside, there are a ton of changes which should make sponsorship easier. All in all, now is a good time to apply for a sponsor licence.
The Home Office has supposedly been simplifying the Immigration Rules. However, there is now more guidance than ever, which you are supposed to read and comprehend. Whereas there used to be one mega-guidance document, this has now been split into four guidance documents, including one specifically for the skilled worker route, totalling 217 pages.
Unlike many alternatives out there, that essentially re-hash Home Office guidance (leaving you no less confused), we have simplified this area and condensed many years of practical knowledge into a convenient guide.
Whether you want to get a better general understanding of sponsorship before you commit, and whether you want to go it alone or with our expert help, this guide is for you.
How to use this guide
If you are reading this legal guide then your primary concern is to get a licence in place, whether that is to allow you to hire a specific individual or to make you well-placed to hire in the future. Whilst obtaining the licence is itself a challenge, getting the licence really is just one step in the sponsorship process. Do you understand what type of certificate of sponsorship you will need? Although the resident labour market test has been abolished, will you still need to run a recruitment exercise? How do you know which is the most appropriate job code? Do you know how much you will have to pay? How long does all this take? What are my sponsor duties and how do I prepare for an inspection? These are all essential questions you need answers to – and which we cover here.
If you just focus purely on the sponsor licence application part, without considering these other aspects of sponsorship, then you are likely to run in trouble. Your application could be refused, or, even if your application is granted, your licence could be taken away at a later point, if the Home Office do not think you are taking your role as sponsor seriously. And if your licence is revoked then you must terminate any sponsored individual’s employment.
Before you enter the world of sponsorship, you need to understand which roles can be sponsored and how much you will need to pay. This is where there have been helpful changes, as both the minimum skill level and minimum pay thresholds have decreased.
Getting the role right is essential and this should normally be your first port of call. When you assign a certificate of sponsorship you specify a role, and then that individual is tied to that role. If you want that person to do job tasks falling outside of this role, they will likely need new sponsorship.
Getting the right role and pay: our three-step guide
Step 1: Identify the job category and SOC code
You need to be clear under which job classification the job falls, note that the Home Office are concerned about the substance of the work being done, rather than the label.
Still struggling with the SOC code?
Often employers struggle with getting the correct SOC code. You might have a job title which is not recognised as an occupation on Appendix Skilled Occupations.
The Office for National Statistics handles the classification of jobs. Go to their ONS website and use their helpful search tool, for further job roles and SOC codes. You might even mention your efforts to use the ONS search tool in your sponsor licence cover letter – show the Home Office you have seriously considered this issue!
It is important to get the role correct. The Home Office has a specific basis to revoke your licence, if they discover that the role the sponsored migrant is doing does not match either the occupation code or job description as stated on their certificate of sponsorship.
Step 2: Skill level
Bear in mind, when we talk about the minimum skill level of jobs, we are talking about the level at which a job is recognised. There is no requirement that the sponsored migrant necessarily has the corresponding qualification. Eyebrows may be raised if a person appears unqualified to do the job in question, although depending on the job, experience can often count in place of a formal qualification.
It used to be the case that, generally, only degree jobs could be sponsored. New changes mean that jobs recognised at A-level can be sponsored. If the job you want to sponsor is listed in Appendix Skilled Occupations, then it can be sponsored.
Step 3: Identify the appropriate rate of pay
Key changes around minimum pay and skill level
The minimum pay thresholds have reduced across the board
A decrease in minimum skill level means many, many more jobs can be sponsored
Greater scope for individuals to be classed as ‘new entrants’ and to be classed as such for longer
Stricter rules around what counts towards salary
Identifying the minimum pay level for any given role can get complicated – and this step requires taking various mini-steps. In most cases you will have to pay the higher of either the general minimum threshold, or the ‘going rate’ for the job category. The going rate varies according to each job.
The general minimum salary threshold is £25,600. So, let’s take the example of a Project Manager which would come under code ‘2424 Business and financial project management professionals’. If we check Appendix Skilled Occupations, we can see that the ‘going rate’ is £37,300. This is higher than the general threshold of £25,600, and so you must pay £37,300.
One rare stricter change to be implemented, is that you can no longer count guaranteed allowances, when calculating if the salary meets the relevant threshold.
However, these rates drop if any of the following apply:
Amending for ‘new entrant rate’
If the individual you want to sponsor meets the definition of a ‘new entrant’, then you can pay less. There are various ways to meet the ‘new entrant’ definition. The most common are where the person:
Is aged under 26 by the time they apply for their Skilled Worker visa, or
The applicant is a recent graduate, more specifically, someone who: most recently held Student/Tier 4 leave; that leave expired not more than two years prior to the date of application; was studying at degree level or above; and has completed the course or is applying no more than three months prior to expected completion.
Note that an individual can only be a ‘new entrant’ for up to four years.
If the individual is a new entrant, then the general minimum threshold drops to £20,480. You also only need to pay 70% of the going rate. So, returning to our hypothetical Project Manager – let’s pretend he is actually only 23 years old and thus classed as a ‘new entrant’; in which case you would just need to pay a minimum of 70% of the ‘going rate’ of £37,300, which is £26,110. This is above the general threshold for new entrants (£20,480), and so the going rate applies: you must pay your new entrant Project Manager at least £26,110.
Amending for shortage occupation
If the job is on the shortage occupation list, then again lower minimum thresholds apply. To check whether a job in on the shortage occupation list, check here.
If the job is on the shortage occupation list, then the general minimum salary threshold is just £20,480 and you must pay either that or 80% of the going rate, whichever is higher.
You may be able to pay less if the person you want to hire has a PhD. The requirements are that:
The individual has a relevant PhD or other academic doctoral qualification (or overseas equivalent); and
The job is ‘eligible for PhD points’ – again you will need to refer to Appendix Skilled Occupations to see if the job is eligible. A surprising number of jobs which you might not think of as PhD level, are in fact eligible.
Note that you will need to give a ‘credible explanation’ as to why the PhD is relevant to the job. This explanation should be given at the point at which you assign the certificate of sponsorship.
If these PhD criteria are met, then you can pay a minimum of £23,040 or 90% of the going rate.
PhD job + STEM
If the person you want to hire is doing a job which is eligible for PhD points and has a relevant PhD or other academic doctoral qualification in STEM, then the general minimum threshold is £20,480 or 80% of the going rate, whichever is higher.
Part B: Key Personnel – Who can manage the licence?
When you apply for a licence you must nominate certain key personnel. There are various key personnel roles to fill, although these can all be filled by the same person. Whether you will split these roles across different people, or indeed in the case of level 1 users have multiple appointees, depends on factors such as the size of your organisation and numbers you are likely to sponsor.
There are three key roles, as follows:
The authorising officer
The authorising officer has overall responsibility for the licence. The authorising officer does not have access to the sponsor management system, the web-interface through which the licence is administered, unless also appointed as level 1 user. The authorising officer decides who should be a level 1 user (or level 2 user).
The authorising officer should be ‘the most senior person in your organisation responsible for recruitment’. This allows the employer some leeway, with often either a director or head HR taking this role.
Explainer: What is a ‘settled worker’?
A settled worker includes someone who is:
An EU national who arrives in the UK before 1 December 2020
People granted status under the EU Settlement Scheme (pre-settled or settled status)
UK Ancestry visa holders
The level 1 user
The level 1 user is responsible for the general administration of the licence and has access to the sponsor management system. Although you can only appoint a single level 1 user when you apply for a licence, you can appoint additional level 1 users once granted a licence.
The Home Office cautions against having more level 1 users than you need, yet also states ‘you should make sure you have at least enough to be able to cover periods of sickness or leave’.
Aside from rare exceptions, you must always have a level 1 user that is a ‘settled worker’.
You must have at least one level 1 user that is an employee, director or partner.
In addition, you can optionally add a Level 2 user. A level 2 user role is similar to a level 1 user but with fewer administrative privileges.
The key contact is, as the name suggests, the contact between the Home Office and your company.
You will need to nominate your authorising officer, level 1 user and key contact, when you apply for your licence.
Suitability and background checks
Bear in mind that the Home Office will carry out background checks on key personnel. They are concerned about criminal records and prior immigration issues. Full details are outside the scope of this guide but, if you have any concerns in this regard, do not apply for a licence without getting this side fully checked out. You may contact us for advice.
Part C: Undefined and Defined Certificates of Sponsorship
Understand which type of certificate you need
Key Changes around certificates of sponsorship
Unrestricted certificates are now called ‘undefined certificates’,
Restricted certificates are now ‘defined certificates’
The monthly cap on defined certificates is suspended
Defined certificates are to be allocated usually within 24 hours of application
Under the new system, there remain two distinct types of certificate of sponsorship and it is important to understand which one you will need. If you assign the wrong one, the Home Office may revoke your licence and ignorance is unlikely to be a sufficient defence.
A certificate of sponsorship is a virtual document which you will ‘assign’ to the migrant which allows him or her to apply the visa.
You will not automatically be granted certificates; you need to request them. They are then ‘allocated’ to you and only then can you assign one to the person you wish to sponsor.
There are different procedures for requesting an undefined or defined certificate. Importantly, you can request an undefined certificate when you apply for your licence. If you are applying for a licence, with a view to sponsoring someone with a defined certificate, then you must make a separate request for a defined certificate after your licence is granted. When applying for a defined certificate, you give personal details of the person you will be sponsoring.
When you apply for undefined certificates, you do not necessarily have to specify to whom you intend to assign the certificate – although you must always justify why you want one.
Undefined certificate of sponsorship
Defined certificate of sponsorship
Which one do I need?
If sponsoring someone who already has permission to be in the UK (e.g. a visa in another category)
If you are sponsoring someone from outside of the UK
Key features of each
You can request an allocation of certificate(s) and then assign them to the individual as when the need arises
You can apply for an undefined certificate of sponsorship when you apply for a licence
You cannot request a defined certificate of sponsorship when applying for a licence
Must make specific request giving details of individual, and role to fill
‘Straightforward’ applications should be approved within one working day
There are important deadlines which relate to certificates of sponsorship – you must assign a defined certificate within three months of allocation. And the sponsored individual must, in all cases, apply for their visa within three months of being assigned a certificate. Find out more in the section Know Your Deadlines and timescales.
How long should I sponsor for?
You can sponsor any individual for up to five years in the first instance. Bear in mind that the individual should qualify for settlement (indefinite leave to remain) after completing five years as a skilled worker. There are pros and cons associated with shorter and longer periods of sponsorship.
If you are liable to pay the Immigration Skills Charge, then there are significantly greater upfront costs if you sponsor for a longer duration, as the charge is either £364 or £1,000 per year (depending on the size of your business, see below section on costs). The individual you are sponsoring also pays more up front, with the Immigration Health Surcharge £624 per year. Also, the visa fee doubles if sponsorship is greater than three years. For more detail around costs, see below. You might also not want to ‘commit’ to sponsorship for a long duration, as you will want to see how individual performs at the job.
On the other hand, if you sponsor for the full five years, then it is administratively easier for all parties, as you would not need to apply for another certificate of sponsorship and the individual would not need to apply for a visa extension. It is also worth bearing in mind that if the sponsored individual is not up to the job, or terminates early for whatever reason, then you would receive a reimbursement for any ‘unused’ portion of the Immigration Skills Charge, and the individual would receive an apportioned refund on the Immigration Health Surcharge.
Often, when we talk through the pros and cons of a shorter or longer initial period of sponsorship, my clients will opt for a three-year period, but this is a decision for the business, in conjunction with the individual.
Part D: How do I show the job is ‘genuine’?
What the Home Office want to know
Since 1 December 2020, the resident labour market test has been abolished. This was the time-consuming recruitment method by which you previously showed no ‘settled worker’ could do the job. This was a pain in the backside, so no love lost there.
However, on closer inspection, it seems that the Home Office will still, in most circumstances, expect you to have advertised for a position, as I explain below.
But first ‘genuineness’: there has always been a requirement to show a ‘genuine vacancy’, and with the abolition of the resident labour market test, this ‘genuineness’ test seems likely to take centre stage. The various Home Office guidance documents are littered with references to ‘genuineness’ in respect of the role.
The Home Office are particularly concerned that the sponsored employee is doing work within their designated occupation code. If the individual is doing predominantly lower-skilled duties then this is especially problematic. The Home Office will be on the lookout for job descriptions which appear exaggerated.
If you are inspected, you can expect the Home Office to go through with a fine tooth comb the exact duties that any sponsored migrant has been performing.
Do I have to advertise for the position?
Given the abolition of the resident labour market test, the obvious answer may be ‘no’. But if you look more closely, you will see that although the formality of the resident labour market test has been abandoned, the Home Office seems to expect you still normally to have advertised domestically for the position before looking abroad.
This expectation that you advertise is contained, not in the main sponsor guidance documents, but is buried within Appendix A, which states
‘If you did not advertise the role, you must be able to explain:
why you did not advertise it (for example, if you are sponsoring a Religious Worker in a supernumerary role, or the individual was previously legally working for you on a different type of visa)
How you identified the individual was suitable for the role
The examples given, of when you might not have to advertise are extremely limited. This suggests there is a strong general expectation that you will need to advertise for the position. This is a tricky area and one which you should give special consideration to. A key difference from before is that, if you do need to advertise, you will not need to go through the strict formalities of the resident labour market test (i.e. advertising for 28 days in two mediums).
Note that if you do advertise you are expected to keep specific evidence of the recruitment exercise, as set out in Appendix D.
In some respects, these new changes around recruitment make things worse for employers. As previously, if a job was exempt from the resident labour market test (such as a job on the shortage occupation list or a tier 4 student switching), then there was clearly no need to advertise. However, the new requirements in Appendix D seem to apply to all positions.
But a word of warning! Reading between the lines, the Home Office probably thought that the resident labour market could be a charade (which it often was), with employers often going through the motions of a formal recruitment exercise, all the time knowing they would be looking to hire their preferred choice from overseas.
The guidance gives a specific example of a vacancy not considered genuine as:
‘…advertisements with requirements that are inappropriate for the job on offer (for example, language skills which are not relevant to the job) or incompatible with the business offering the employment, and have been tailored to exclude settled workers from being recruited.’
So if you are going to advertise, give careful consideration to the job advert.
This brings me nicely on to the next point.
Why getting the job description right is important!
Whether or not you are advertising for the position, you should have a well-thought through job description. If you do advertise for the position and put the recruitment exercise to the Home Office as supporting evidence, then expect the Home Office to hold you to this. If they inspect you, they are likely to want to see that your sponsored employees are doing duties as outlined in the job advert.
Even if you do not advertise, then when you apply for a sponsor licence, you must state the job duties, skills, experience and qualifications, if any.
When you apply for a defined certificate of sponsorship you will need to give details about the duties, qualifications required and guaranteed salary. When you assign an undefined certificate, you will give similar information.
So, to avoid problems down the line, take time to ensure you have an accurate and compliant job description, making sure you have the correct SOC code and that you are paying enough – see Who can I sponsor for more details.
Part E: Know your deadlines and timescales!
There are various sneaky deadlines/time limits which, if you are not aware of and have not factored in, can seriously undermine your plans. You should also be aware of general processing times.
Here is what you need to know:
As the resident labour market test is gone, there is no need to necessarily allow for a minimum 28-day recruitment exercise. However, as explained above, often you will still need to show you have tried to recruit domestically before sponsoring, so any recruitment exercise may need to be factored in.
The Home Office processes eight out of 10 applications within eight weeks. Three to four weeks seems to be the normal wait-time. However, a new service allows you to pay extra for priority processing: an additional £500 will buy you a decision within 10 working days if eligible to use this service. However, an important caveat is that if you are visited, then you can expect your application to be delayed by up to a few months or more.
If you need a defined certificate of sponsorship, then this would need to be applied for after you are granted a licence. Straight forward decisions should only take 24 hours.
A defined certificate of sponsorship must be used within three months of allocation, otherwise it will be removed from your account.
Once the certificate is assigned to the individual then he or she must apply for his or her visa within three months.
Note that the migrant cannot apply for their visa more than three months prior to the ‘start date’ as recorded on the certificate of sponsorship.
In terms of the visa processing, there is a three-week wait for a decision. However, an individual can pay for the Priority Service and get a decision within five working days. A visa application from within the UK is eight weeks or five working days if paying Priority Service. One working day if they buy Super Priority service.
If you are applying for a sponsor licence with a view to hiring a specific individual, then it takes some careful planning, to work out when you need to apply for a licence and when your prospective sponsored employee can start work.
At Truth Legal, as part of our service we will help you to plot a road map to sponsoring an individual.
Part F: Sponsor licence compliance
What is sponsor licence compliance?
When the Home Office talks about sponsor licence ‘compliance’, it is talking about those duties and responsibilities you agree to take on when you apply for a licence. The Home Office takes compliance very seriously, which is why you are supposed to be well versed in the Home Office’s 63-page document on this very issue (you are also supposed to be familiar with all of the other guidance documents!).
In allowing organisations to sponsor, the Home Office considers the sponsor to have taken on certain responsibilities around ‘keeping tabs’ on the migrant. You need to show the Home Office that it can trust you.
Compliance is for life (…time of a licence)
When applying for a licence, most employers are at least dimly of a need to ‘get HR in order’. Depending on your profile, you may be more or less likely to be inspected before the Home Office grants a licence, known as a pre-licence inspection. If you face a pre-licence inspection, then you must have adequate systems in place from the word go.
Many sponsors manage to avoid a pre-licence inspection but then fall into the trap of forgetting about their sponsor duties. This then causes major problems down the line; when you are told that you will be inspected with limited advance notice.
Our advice therefore is to ensure you have a proper understanding of compliance and have appropriate systems in place when you apply for a licence.
When is a pre-inspection visit more likely? Risk factors:
If you are recently incorporated or trading
Business is at your personal address/virtual office
If you in a ‘high risk’ sector, e.g., hospitality
You are sponsoring someone related to an existing employee
You have had previous immigration issues
Other information provided in the application which casts doubt
Key areas of compliance
Some of the key areas of sponsor licence compliance are below – although the Home Office expect you to be familiar with its 63 page guidance document.
There are various changes you must report to the Home Office and these attract either a 10-working day or 20-working day deadline to report. There are many changes in circumstances that you must report to the Home Office, but to give a few examples:
If your sponsored employee is absent from work for more than 10 consecutive days without permission (report within 10 working days)
If you stop sponsoring the employee (10 working days)
A change in the employee’s location (10 working days)
If you sell all or part of your busines (20 working days)
Record keeping duties
Again, it is beyond the scope of this guide to go through all your record keeping duties and, frankly, this is not the most interesting of topics. However, compliance is one of the most important ones and a key focus of any inspection.
The record keeping duties are set out in the general guidance, as well as in a new document I have not mentioned before, Appendix D.
Sanctions for non-compliance
There are serious repercussions if you do not comply with your sponsor licence duties. If you are at the stage of applying for a licence, then a failure to comply will likely lead to a sponsor licence refusal. If you are refused, then you will normally be subject to a six-month ‘cooling off period’, during which you cannot reapply. A refusal, as well as the subsequent cooling-off period, can be fatal to your recruitment plans.
Sponsor licence suspension or revocation
As I mentioned, a common mistake made by licence holders, is to apply for the licence and then to basically forget about or neglect the ongoing compliance duties. This can be disastrous both for the business and the individual sponsored.
If you already have a licence in place and are found to be in breach of your sponsor licence duties, then you might receive notification that your licence is being suspended. During the suspension, you can continue to sponsor any individual but cannot sponsor new ones. The Home Office will then decide whether to reinstate, downgrade or revoke your licence.
The Home Office will usually revoke, rather than downgrade. If your licence is revoked, then you must stop sponsoring any individual. The individual will then have their visa curtailed, usually leaving them with insufficient time to find an alternative immigration route, and thereby requiring them to leave the UK.
If the licence is revoked then you will normally have a 12-month ‘cooling-off period’, during which you cannot apply for another licence (and any subsequent licence application will come in for extra scrutiny).
Preparing for a compliance visit
The Home Office aim to ‘visit’ all licence holders at some point. I should say that although the Home Office use the word ‘visit’, I would suggest ‘inspection’ or ‘audit’ would be a more accurate description of what takes place. You can either be visited before being issued with a licence, or after.
During the visit, a Home Office compliance officer will hold in depth interviews with the authorising officer and level 1 user (if different), as well as any sponsored migrants.
The Home Office will be meticulous in examining the role any sponsored migrant is (or will be) undertaking, with a view to assessing whether the role is genuine. They will want to know that you are complying with your record keeping and monitoring duties. They will want to know what systems you have in place to check your sponsored migrant’s contact details, and how you are complying with your Right to Work checks?
How Truth Legal can help you to become compliant
At Truth Legal we help you to become compliant. If you instruct us to help you with your sponsor licence application, then during our detailed consultation we will highlight the key compliance issues as they apply to your organisation. We can discuss ways in which you can devise compliant HR systems.
Our HR Compliance Package
To help you implement compliant systems, we offer an HR Compliance Package. This cost-effective package gives you the necessary tools to prepare key folders of evidence, so you have all your documents in a convenient place, ready to present to the Home Office. These folders will also incorporate key areas of Home Office policy, which should show any inspecting officer that you are on top of things.
Many of our clients have opted for the HR Compliance Package prior to a visit and have fed back how essential this was in preparing for, and passing, the inspection.
We can carry out a mock-audit of your HR systems to check compliance. We will then write an Action-Plan to let you know which areas are compliant and which need improving. We can conduct audits on-site or remotely.
Making representations and judicial review
If you have had a sponsor licence application refused, or if your licence is at risk of revocation, then we can help. We will review your case and decide on the best approach. Often we find that writing a detailed letter (making ‘representations’) on your behalf leads to a positive outcome.
Where necessary, we will write a letter before claim and run judicial review proceedings.
By the time you are ready to apply for a sponsor licence you should either have identified a specific role you wish to sponsor or have identified the types of roles you are likely to sponsor. You should also be familiar with sponsor licence compliance and have implemented appropriate systems, where possible. You will also need to be clear on who will act as key personnel.
If you have covered all the above, then you should be ready to prepare the application itself.
4-Step Guide to Applying for a Sponsor Licence
Key Changes around applying for a licence
You no longer must submit originals or certified copies (unless Appendix A explicitly requires a certified copy)
You can now email your supporting documents
You can pay £500 for priority processing of your sponsor licence
Step 1: Get your documents ready
The Home Office document Appendix A tells you which types of documents you will need to support your application. Appendix A is not particularly user-friendly. You have to work your way through a series of ‘tables’ to work out which documents you need. Once you have identified four documents then you have enough – although I tend to encourage applicants to get five documents just to be safe.
Beware that some documents are mandatory. For example, if you are a start-up (defined as operating or trading for less than 18 months) then you must include bank statements or a letter from your bank. If you are a franchise, then you must send a franchise agreement signed by both parties. If you are a food business then you must provide evidence of registration/approval by a food authority, such as evidence of your ‘Scores on the Doors’ rating. If you have audited accounts, then these must be submitted.
And do not forget the hierarchy chart! This must detail any owner, director and board members. If your organisation has 50 employees or fewer, then you must include the name and title of each staff member.
Step 2: Write your cover letter
We are often asked ‘Do I need to write a cover letter?’, to which our answer is a resounding ‘yes!’. If you instruct us to help you with the application process, then we consider this to be perhaps our most important task. There are two reasons why you need a good cover letter.
Reason 1: You must submit mandatory information
If you are applying under the Skilled Worker category, then you must submit certain mandatory information as requested in Appendix A. If you do not provide mandatory information then your application will probably be rejected, so getting across this information is just as important as providing the supporting documents.
Here is a snapshot of what is asked for in Appendix A:
Our approach is to include this information in a cover letter.
Reason 2: Your cover letter allows you to paint a picture
Your cover letter also gives you the chance to build a compelling case for why you need the licence. You might set out your company background in a glowing light. Perhaps you want to highlight past difficulties recruiting or explain how an individual you want to sponsor has previously contracted for you, or explain your expansion plans.
Once you have submitted your online application, then you will need to print off a ‘Submissions Sheet’, which you will need to email to the Home Office, along with the rest of the supporting documents. You have five working days to email your documents.
The Home Office ask that you submit all documents in PDF form and that all attachments are suitably labelled, using no more than 25 characters.
Part H: Niche sponsor licence issues
Can I sponsor a family member?
A common question we are asked, is whether it is possible to sponsor a family member. The answer is ‘yes’, but it is complicated, and you will need to make important allowances.
Prohibition on a level 1 or level 2 user assigning a certificate of sponsorship to a family member
In terms of the outright prohibitions on sponsoring family members, the only categorical ban is on ‘SMS users’ assigning a certificate of sponsorship to a ‘close relative or partner’. ‘SMS users’ means a level 1 or level 2 user. ‘Close relative or partner’ is interpreted widely, to cover:
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
Taken at face value, this prohibition merely restricts the level 1 or 2 user from undertaking the specific act of assigning the certificate of sponsorship to the family member. Therefore, this provision does not necessarily preclude a family member from acting as level 1 user. For example, it might be possible to appoint multiple level 1 users or another level 1 or 2 user to undertake the specific act of assigning the certificate.
Appointing a different level 1 user can be difficult for certain businesses, particularly smaller ones. There are other requirements which create further hurdles, such as the requirement that you must always have a level 1 user that is either a director, partner or employee. You must also have at least one level 1 user that is a ‘settled worker’.
Possible ways around this include appointing a legal representative as your level 1 user, or appointing an ‘employee of a third-party organisation engaged by you to deliver all or part of your HR function’.
Requirement to disclose to the Home Office if you assign a certificate of sponsorship to a family member
You must also disclose to the Home Office if you assign a certificate of sponsorship to a family member of anyone within the sponsor organisation if your organisation is classed as a small or medium business. If it is a large business then duty is only if you are ‘aware’ you are assigning a certificate to a family member of someone within your business. Disclosure is made by way of a sponsor note. For a definition of what is classed as a small/medium or large business, see here.
Even if you navigate these tricky issues, you can expect to be closely scrutinised by a suspicious Home Office, if you sponsor a family member. A likely point of attack by the Home Office, is the ‘genuineness’ of the role and so you will need to have this aspect clearly covered.
In summary, sponsoring a family member is in theory possible, but you must make key adjustments and even if you make those adjustments, you will have to be ‘whiter than white’ in all compliance matters. You should take legal advice before going down this tricky route.
Can I be sponsored by a business I own?
Can a company I own sponsor me under a Skilled Worker licence? Again, the answer is yes, on paper, provided you pay careful attention to the limitations of doing this and are prepared for extra scrutiny.
Two changes make this more doable. First, the abolition of the resident labour market test clears a potentially awkward hurdle. Second, there used to be a general prohibition on tier 2 visa holders owning more than 10% shares in their sponsoring company. There is no such restriction under the Skilled Worker route.
However, other challenges remain. First, your business must be ‘operating or trading’ before it can get a licence. So you may need to enlist help to establish the business in the UK, if you wish to set up a new business, or you might be able to do limited work on a business visitor visa.
You would need to have suitable persons in place to act as the authorising officer and level 1 user, as you could not take on these positions. This is a tricky area; you should contact us if you want to go down this route.
Part I: Dealing with a rejection or refusal
The difference between a ‘refusal’ and a ‘rejection’ of a sponsor licence application
A refusal means the Home Office is not satisfied that you can meet the requirements of sponsorship. You will normally be subject to a ‘cooling off’ period during which you cannot reapply – normally six months or more. You will not be refunded.
A rejection is the lesser of two evils. It follows from you not submitting some mandatory information or evidence. You will normally receive a refund and you can re-apply straight away
Receiving a negative decision can come in two forms: a rejection or a refusal, and it is important to understand the difference between the two.
If you have been refused then there will normally be a ‘cooling-off’ period, during which you cannot reapply, usually six months, sometimes longer. There is no right of appeal against a refusal and no formal process to request a reconsideration.
However, at Truth Legal we have had success in persuading the Home Office to overturn refusals and cooling off periods, by making detailed representations on our clients’ behalf.
Alternatively, it might be a case of making a new application, addressing any points of refusal. Again, at Truth Legal we are experienced at helping you to build a compelling case, in circumstances where you have previously been refused or had other issues. If you have received a rejection or a refusal, then contact us and we can advise you on the best course of action.
Part J: How much does sponsorship cost?
There are various costs involved with sponsorship. Some of these must be borne by the employer. Other costs are the liability of the sponsored individual.
Note that some of the sponsor fees vary depending on whether the employer is a charity/small business or a medium/large business. You are a small business if two of the following apply:
your annual turnover is £10.2 million or less
your total assets are worth £5.1 million or less
you have 50 employees or fewer
Sponsor licence (one off fee)
£536 (charity/small), or
Cost of one certificate of sponsorship
Immigration Skills Charge
£364 (charity/small), or
£1,000 per sponsored migrant per year *
Skilled Worker visa
£610/£1,220 if sponsored for less/more than three years and applying from overseas,
£704/£1,408 if sponsored for less/more than three years and applying from within the UK **
Immigration Health Surcharge
£624 per year of the visa (e.g. a three year visa would be=£1,872
* only applies if sponsoring from overseas on a defined certificate of sponsorship. Sponsoring on an undefined certificate does not incur this charge
** lower fees apply if the job in on the shortage occupation list and/or if the visa is a ‘Health and Care Visa’
Truth Legal – Sponsor Licence Experts
Truth Legal are experts in all areas of immigration and specialise in all matters around sponsorship.
If you want to apply to apply for a Skilled Worker sponsor licence, or have any other issue relating to your sponsor licence, contact us for a free consultation today.
Contact Truth Legal
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