In recent years, employers hiring overseas workers has increased and it appears that employers have widened their recruitment process to include candidates outside the UK. This has been done in an obvious attempt to hire the most suitable candidate who will be able to undertake the advertised role competently and efficiently.
Before an employer in the UK can employ an overseas worker from outside the EU, the employer must fulfil certain requirements as well as obtain the relevant permission from UKVI. Once an employer successfully employs an overseas worker, there are certain obligations that must be fulfilled. Employing overseas workers carries with it a huge responsibility and trust with the UKVI and as such, UKVI expects employers to remain up to date with their duties and obligations. It is therefore, vital to summarise the top five things that all employers must know about employing overseas worker.
Obtain a sponsor licence.
In order to successfully obtain a sponsor licence, employers must evidence that the company is a genuine organisation. This can be done by submitting certain mandatory documentation which depend on whether the organisation is seeking to sponsor a worker under the Tier 2 or Tier 5 visa category of the Points Based System. A Tier 2 visa is usually most suitable for those who wish to be employed in the UK as a skilled worker. A Tier 5 visa is more suitable for temporary workers who wish to undertake roles within an organisation in order to help meet cultural, charitable religious or international aims and objectives.
By way of an example, the mandatory documents can include corporate bank statements, a certificate of VAT registration as well as registration with the relevant regulatory body where applicable. There is therefore, a requirement for an organisation to evidence that it is registered and currently trading in the UK.
Contact us and our specialist Business Immigration team can provide further guidance on the other mandatory documents required in order to make a successful sponsor licence application.
Further to the above, the employer must be honest, reliable and dependable which UKVI will investigate further in order to determine whether an organisation can be considered to have the above traits. This can be done by an in-depth background and history check, not only on the organisation but also the key personnel selected.
In addition, the UKVI need to be sure that an organisation is able to carry out its’ sponsor duties effectively and competently. Consequently, UKVI will therefore carry out an analysis of the organisation’s Human Resources department as well as also visiting the organisation to gain a better understanding of how the department operates.
Ensure the role you are hiring for falls within the Standard Occupational Classification (SOC) Code.
Before an employer can even begin the recruitment process for filling a vacancy in the UK, the employer must demonstrate that it is attempting to fulfil a genuine vacancy at the appropriate level and salary as required by the SOC Code. If a role is not listed within the SOC code or the Shortage Occupation List, then an employer will not be able to sponsor an overseas worker for the vacancy. The employer therefore, will be required to fill the vacancy with a settled person in the UK. The most common type of workers that employers sponsor is Tier 2 (General) highly skilled migrant workers for which, the employer must ensure that the role undertaken must be at RQF level 6 with a minimum salary of £30,000 per annum.
Ensure the Resident Labour Market Test is carried out correctly.
The purpose of the Resident Labour Market Test (RLMT) is to ensure that there are no settled workers in the UK who have the required skill to undertake the role instead of a migrant worker. Therefore, for roles that are not contained in the Shortage Occupation List, the employer must advertise the role for 28 days by placing a minimum of two adverts. One advert can be placed on the Jobcentre Plus website and any other, job site such as Indeed or Reed.
It is also vital for the organisation to show that the role fits within the organisation and that it is only rational to hire an individual for the advertised role; this is connected with the requirement for the vacancy to be a genuine one. Only once the above process is satisfied can an employer issue a Certificate of Sponsorship; this is an undertaking by the employer that the relevant test has been carried out or alternatively, in cases where the test was not carried out, that the role falls within the Shortage Occupation List
Be aware of the duties and obligations imposed by UKVI on sponsors.
An employer must select key personnel to undertake certain duties which assist the organisation in complying with their duties and obligations as a sponsor. The employer is therefore, responsible for appointing:
- An Authorising Officer – this role must be fulfilled by a senior employee who carries the main recruitment responsibility at the company
- Key Contact – the employee fulfilling this role will be the person of contact between the company and UKVI
- Level 1 User – this role will require the employee to carry out the daily tasks required on the Sponsorship Management System
- Level 2 User – this role does not allow the employee to undertake the same level of activities as a Level 1 User however, they will be able to assign Certificate of Sponsorships and inform UKVI about the activity of skilled migrant workers
It is important to note that an organisation’s responsibilities and obligations as a sponsor begin as soon as a sponsor licence is granted and will continue unless the licence is surrendered or revoked.
The sponsor is required to undertake the right to work checks competently to ensure that their employees are legally allowed to be in employment. Further duties include record keeping such as keeping a copy of the migrant’s passport and maintaining up to date contact details as UKVI may request these records as part of their compliance checks.
As a sponsor, an employer is also required to undertake their reporting duties. Sponsors must report any change in circumstances or any other updates within 10 working days. This includes reporting migrant workers who have not attended work or where the sponsor ceases sponsorship of the migrant worker.
The UKVI can revoke or suspend a sponsor licence.
It should not be assumed that once a sponsor licence is granted that the organisation will continuously hold the licence. UKVI will undertake random checks and can also attend a sponsor’s place of business to ensure that the sponsor is complying with their duties and responsibilities. If during a compliance check or visit, it transpires that a serious breach has been made by the sponsor, UKVI have the right to revoke the licence which can be detrimental to the business and to those workers sponsored by the business. In circumstances where a sponsor has made a minor breach, UKVI may suspend their licence and require the organisation to rectify their breach within an imposed deadline.
Contact us if you are concerned that you have not been complying with your sponsor duties and our team of specialist immigration solicitors will assist you in ensuring compliance.