- What kind of sponsor licences are there?
- OK, where do I start?
- What documents do I need to send in?
- Key personnel for the licence
- What about the suitability criteria?
- How do I actually submit the application?
- When do I get a decision?
- What is on the horizon for sponsorship?
With EU free movement fading into memory, the main visa route available for non British and Irish nationals wanting to work in the UK is now the Skilled Worker visa.
The Skilled Worker visa is a sponsorship system: a foreign worker cannot simply apply for this visa unaided. Applicants need a job offer from an organisation willing to employ them before they can apply. As such, the impetus often comes from the employer.
The first step is for the would-be employer to secure a Skilled Worker sponsor licence. This enables them to issue “certificates of sponsorship” (virtual work permits, in simple terms) to applicants so they can get their visa.
With EU nationals arriving in the UK after 1 January 2021 now requiring a visa to work in the UK, more employers are going to need a Skilled Worker sponsor licence if they want to maintain staffing levels. With this in mind, if you are a legal representative or a business trying to get a handle on the sponsor licence application process, here is a short guide.
What kind of sponsor licences are there?
There’s actually a plethora of possible sponsor licences that a non-educational organisation can apply for, reflecting the different types of sponsored work visas:
- Skilled Worker
- Intra Company Transfer
- Ministers of Religion (T2) / Temporary Worker – Religious (T5)
- Sportsperson visa (T2)
- Temporary Worker – Creative and Sporting (T5)
- Temporary Worker – Charity (T5)
- Temporary Worker – Government Authorised Exchange (T5)
- Temporary Worker – International Agreement (T5)
- Temporary Worker – Seasonal (T5)
Some of these licences can be applied for in conjunction with each other, using the same form and a similar bundle of supporting documents (for example, a Skilled Worker and Intra Company Transfer licence). Others, such as the sporting categories, have their own separate application process with bespoke criteria.
This note will focus on the process for applying for a Skilled Worker sponsor licence specifically. It is the most common application within work based migration and forms the backbone of the Points Based Immigration System.
OK, where do I start?
With Part 1 of the Home Office’s guidance for sponsors, which details the process for applying for a sponsor licence.
Section L8 of the guidance details how would-be sponsors have to fulfil certain eligibility and suitability criteria to get their licence.
The eligibility criteria are pretty straightforward. The would-be sponsor has to submit evidence to show that it is a genuine employer with a lawful trading presence in the UK. I’ll give some examples in the next section.
The suitability criteria is a much broader assessment. The Home Office will look at whether the organisation is “honest, dependable, reliable”, and capable of meeting the responsibilities that it expects from sponsors. The department will check the following (adapted from paragraph L8.5 of the guidance):
- That the sponsor has the human resource and recruitment systems in place to meet, or continue to meet their sponsor duties — the Home Office will judge this by either visiting the sponsor before or after the licence is granted
- That the Home Office are able to visit and conduct checks to ensure that the sponsor duties are being complied with on an immediate, unannounced basis; this includes checks at any physical addresses where the sponsored employees would carry out their employment duties
- That the sponsor can offer a genuine vacancy which meets the criteria of the category the sponsor is applying to be licensed for
- If any of the key personnel within the business have an unspent criminal conviction for a relevant offence
- Any evidence of previous non-compliance by the sponsor
This is vitally important, as sponsorship is a two-way street. In the paternalistic eyes of the Home Office, a sponsor is benefitting from employing migrant workers, and so must shoulder some of the burden in ensuring the system is not abused. The Home Office makes clear in its guidance that “sponsorship is a privilege, not a right” and wants to be reassured that sponsors can live up to the “significant trust” that the department places in them.
Putting aside the condescending overtones, it is important that your client understands this. Failure to do so has serious consequences (more on this below).
A familiar refrain that is peppered throughout the guidance is the need for a sponsor to demonstrate that they can offer “genuine employment” that meets the skill and salary thresholds of the Skilled Worker route. The Home Office will assess whether a business truly needs the role they are wishing to sponsor, by examining the business type and the people they already employ to see if the sponsored role makes sense within their current structure.
Sponsors should also take note that the Home Office will consider the degree to which someone is required to attend a place of work as part of their job, implying that remote working will be taken into account when assessing whether a role is genuine. With home working looking like a permanent fixture for many businesses, a sponsorship system that demands presenteeism of workers will need reform. The Home Office will have to accept that it cannot require businesses and workers to meet overbearing rules that are out of step with current workplace practices.
What documents do I need to send in?
To meet the general eligibility criteria
The answer lies within Appendix A: supporting documents for sponsor licence application. That is, if you are able to decipher it. In a closely fought contest for the most confusing and badly written Home Office immigration guidance, Appendix A wins by a nose.
To be fair, the Home Office has set itself a tough task. Instead of stepping back and assessing a sponsor’s credentials in the round, it expects employers of all different shapes and sizes to provide documents from a defined list to demonstrate their eligibility. Sponsors will need to accumulate at least four pieces of evidence from the Appendix A list to support their application.
Four pieces of evidence doesn’t sound like much, but when this requires businesses to dig out VAT and employer’s liability insurance certificates, gathering evidence can take a surprisingly long time. So it’s wise to have the documents ready before you tackle the submit the online application (see below).
Appendix A is split into four tables. It is easiest to go through them in turn to see if you can find the documents which fit your client.
For instance, table 1 confirms that a public authority or a company listed on the London Stock Exchange does not have to submit documents other than those specific to the licence they are applying for. Table 2 covers starts-ups (organisations that have been trading for less than 18 months), as well as franchises and charities. Table 3 lists the specific evidence that needs to be sent for a particular tier.
Table 4 then lists all the other possible documents you could provide, one of which must be the latest set of audited accounts if the organisation is legally obliged to submit them.
In my experience, the average private limited company tends to find the following easiest to find, although this is very much case by case:
- Evidence that the sponsor has coverage for employer’s liability insurance up to £5 million
- Certificate of VAT registration
- Evidence of registration as an employer with HM Revenue and Custom
- Recent bank statement or a letter from the bank setting out dealings with the organisation
- Proof of ownership or lease of the business premises
Until last year, documents for a sponsor licence application had to be either originals or certified copies. Since the outbreak of the pandemic, the Home Office has relaxed this rule. Documents in support of a sponsor licence application can now be emailed to the Home Office as pdf files.
Specific evidence required for Skilled Worker visa
Most of the visa-specific documents are covered in table 3 of Appendix A. But for reasons which remain mysterious, the specific documents required for the Skilled Worker route are listed near the start of Appendix A.
Alongside some basic information about the organisation, the role they want to fill and the candidate they have in mind, the organisation must also tell the Home Office why they are applying for a licence. With the Resident Labour Market Test now consigned to the Immigration Rules graveyard, this does not require a sponsor to necessarily go through an advertising process or even have a candidate or role in mind. The Home Office will accept applications from businesses who simply anticipate a sponsorship need. However, it is best to err on the side of caution and put forward as much evidence as can be gathered to support your case which may include presenting the results of a recruitment process.
Key personnel for the licence
The Home Office also requires the organisation to nominate certain individuals to take on roles in respect of the sponsor licence. The people nominated must be primarily based in the UK. The main roles are:
- authorising officer – perhaps the most important of all the roles, this should be given to someone senior. Ideally it should be someone who has some involvement with recruitment and/or HR as they will be ultimately responsible for the licence and to ensure that the sponsor licence duties are met.
- key contact – this person is the main point of contact with the Home Office. A legal representative can undertake this role, and it is recommended you do so, as this will enable you to chase the application on your client’s behalf if needs be.
- level 1 user – responsible for all day-to-day management of the licence via access to an online portal, the sponsorship management system (SMS). At the application stage this has to be an employee but once the licence is secured, others, including representatives, can be set up as level 1 users, or level 2 users who are able to undertake certain limited tasks on the SMS.
It is important to carefully consider whether anyone nominated has skeletons in the closet, particularly any criminal conduct or previous adverse involvement with the Home Office. Applications for sponsor licences can be refused due to the character and past behaviour of the key personnel. The Home Office can and will run its own checks on nominees.
What about the suitability criteria?
This is more complex, I’m afraid. Essentially the Home Office will want to be sure that the organisation and the key personnel are bona fide.
Specifically, they will want to know that the organisation has the HR or recruitment systems in place to meet the myriad sponsorship duties that an employer effectively signs up to when they become a sponsor. These are set out in Part 3 of the guidance for sponsors.
Sponsorship duties include reporting certain information about sponsored workers via the sponsorship management system. The report must be made within ten working days of the event occurring. Reportable events include a delay in a start date or change in work location for a Skilled Worker.
They also include keeping detailed records on sponsored workers, such as contracts of employment, salary details and evidence that a vacancy is genuine. Further details on this can be found in Appendix D: keeping records for sponsorship.
The duties are certainly burdensome, and in some cases entirely pointless. One particularly irksome duty is to report when a worker has changed their immigration category — for instance, when they have been granted indefinite leave to remain after holding a Tier 2 (General)/Skilled Worker visa for five years. It is maddening to be required to report something the Home Office already knows.
Reform is being promised by the Home Office as part of an overhaul of the sponsorship system due in 2022. Until then, a sponsor will need to be prepped on what the duties are, what they entail and the consequences if they fail to adhere to them.
In particular, sponsors should be warned that the Home Office can visit them as part of the sponsor licence application process to check that their systems are robust enough. This is the principal method by which the Home Office can assess the suitability criteria.
Pre-licence visits are due to start again shortly after a hiatus for the pandemic. They will usually occur if the application is deemed high risk in some way, or if the sponsoring company is newly formed.
Even if they avoid a visit during the application process, a sponsor can be inspected by the Home Office at any point while they remain a sponsor licence holder.
During a visit the inspector will want to check the sponsor’s HR systems and speak to the authorising officer. They can also request to interview sponsored employees to ensure that the vacancy they have filled is a genuine one.
If the Home Office finds evidence that the employer is not meeting their duties, their licence can be suspended or even revoked — meaning their sponsored workers will have their visas curtailed. In 2019, almost 600 licences were suspended, and over 400 revoked.
This puts the worker at risk of losing their job and their right to remain in the UK, not to mention operational and reputational damage for the employer.
Spending some time with your client during the application process, checking their policies and systems to see if they can meet the standards that are expected of them, is a useful exercise. You can then spot and iron out any deficiencies which could come back to haunt them in the future.
How do I actually submit the application?
Not on a nice user-friendly Access UK form, unfortunately. You will instead have to grapple with an online application form specific to sponsor licensing, which crashes regularly and is badly in need of an update.
The form is pretty straightforward, if a little awkward to use. You will need to choose which categories you want the license to cover (as shown below).
It then asks for the key personnel on the licence and which supporting documents you are going to provide to meet the eligibility criteria, as discussed above.
A legal representative can help a sponsor to complete the form but the Home Office guidance is clear that it must ultimately be submitted by the sponsor. If you can’t be with the client when they submit it, you can prepare the form and pass on the login details for them to press submit themselves.
Then a submission sheet is generated which previously had to be printed off and signed by the authorising officer. The Home Office will now accept a pdf and a digital signature.
You then have five working days from the point of submission to send your bundle of supporting evidence to the Home Office.
When do I get a decision?
Decisions can take up to eight weeks but tend to come through within four to six weeks. Always with an eye on ways to make an extra buck, the Home Office has recently introduced a service to expedite a sponsor licence application for an extra fee of £500 which will ensure an application is decided within 10 working days. Predictably this has seen waiting times for applications submitted via the standard service slip, so if you are on a deadline you may have to stump up the extra cash.
Details on how to use the expedited service are emailed through once the application is submitted. Only a limited number of applications will be expedited per day so prepare to set a timed email to go out at midnight to stand any chance of being accepted.
The sponsor will be emailed with the result of the application and if successful they will be granted a licence valid for four years from the date of decision. This will usually be an “A-rated licence” which means they will be granted access to the sponsor management system via login details for the nominated user. The organisation will then have the ability to start sponsoring workers.
Bear in mind that there are no second chances. If the application is refused, there is no right of appeal against this decision and a six-month cooling-off period will kick in. This prevents the sponsor from making another application during this time period.
What is on the horizon for sponsorship?
The sponsorship system remains outdated and unworkable for many employers. The application process is cumbersome and the duties sponsors have to adhere to are overly onerous.
As the need for sponsorship is only likely to expand over the coming months and years, reform is urgently needed to prevent it from inhibiting the labour market. The government wants to overhaul the sponsorship system and make the application process easier. We should see some significant changes by the end of 2022 but with so many issues to resolve we should keep expectations in check for the time being.
This article was originally published in April 2020 and has been updated so that it is correct as of the new date of publication shown.