Employer's guide to employing non-UK workers

EMPLOYING NON-UK WORKERS

For many UK employers, particularly those operating in sectors with a skills shortage, the ability to recruit and retain talent from overseas is imperative to meeting client demand, launching innovative projects and growth.

Unfortunately, for many UK employers and those wishing to establish a branch or subsidiary of their overseas business in the UK, the UK’s post-Brexit landscape presents new challenges to the recruitment of non-UK workers and compliance with UK immigration law.

All UK employers who wish to employ a non-UK national who does not already have permission to work in the UK, including those from the EU, EEA and Switzerland, must first apply for authorisation from the Home Office to do so. This entails the UK business making a Sponsor Licence application and thereafter, maintaining the licence and complying with a raft of sponsor duties.

Applying for a sponsor licence and employing non-UK workers is a considerable undertaking for any UK employer; it presents cost and on-going administrative burdens and if these are not managed correctly, an employer could find themselves exposed to a range of consequences, including suspension or revocation of its sponsor licence, an inability to continue to sponsor non-UK workers or sponsor new workers, significant civil penalties and criminal sanctions and reputational damage.

How we can help you

We will take time to understand your business’ recruitment and workforce needs and provide you with tailored advice and a comprehensive service that will guide you from start to finish of the application process.

Once the Sponsor Licence is in place, we can continue to assist you in planning for your workforce needs and in maintaining compliance with your Sponsor Licence duties. Our Sponsor Licence management services include assistance with navigating and operating the

Sponsorship Management System (as a Level 1 User), ad hoc advice, compliance training and mock audit services to ensure your business is prepared for a Home Office compliance inspection.

Does your business need a UK Sponsor Licence?

To determine whether your UK business needs a Sponsor Licence to meet its recruitment needs, it is important to first understand who has the right to work in the UK:

• British citizens have an immediate right to work in the UK with no restrictions.
• Irish citizens can live and work in the UK by virtue of the Common Travel Area arrangement (CTA). Under the CTA, British and Irish citizens can move freely and reside in either jurisdiction and enjoy associated rights and privileges, including the right to work without restriction.
• Those with Indefinite Leave to Remain (ILR): also known as ‘settlement’ – this gives the holder the right to reside permanently in the UK with no restrictions on their right to work. ILR can be lost if the holder remains outside of the UK for two consecutive years or more.
• Those with an existing UK visa: existing UK visa holders may have the right to work in the UK – this will however depend on what type of visa they have, whether they are subject to any conditions / restrictions on their ability to work and the visa’s validity / expiry dates.
• EU, EEA and Swiss nationals: those with ‘pre-settled’ or ‘settled’ status under the EU Settlement Scheme (EUSS) have the right to work in the UK without restriction.

EU, EEA and Swiss citizens who have made a valid late application for status under the EU Settlement Scheme and who have been issued with a Certificate of Application will also have a right to work in the UK without restriction while that application is determined.

Newly arriving EU, EEA and Swiss citizens or those who began living in the UK after 31 December 2020, will not qualify for status under the EUSS and will therefore need to obtain another type of UK visa to have the right to work in the UK.

Right to Work Checks and Illegal Working

All UK employers are required to carry out compliant Right to Work Checks on all UK-resident employees before they commence employment, regardless of their nationality or status (this includes British nationals). Those on a visa with a time limited right to work in the UK will also require further checks to be made during the course of their employment.

Failure to conduct a compliant Right to Work Check can leave an employer exposed to a range of civil and criminal sanctions under the illegal working legislation.

As part of our bespoke immigration compliance services, we can provide your business with advice and / or training on how to conduct compliant Right to Work Checks and audit your existing processes.  

Should you discover an employee does not have permission to work for you, we can also advise and assist you, helping you to navigate both immigration and employment law considerations.

Applying for and Maintaining a Sponsor Licence: the 7 step process

The 7 main steps that UK employers will need to navigate to obtain and maintain their Sponsor Licence are as follows:

1. Check if your business is eligible to apply for a Sponsor Licence;
2. Decide which type(s) of Sponsor Licence your business should apply for and which worker visas your prospective workers will be eligible for;
3. Decide who will manage the Sponsor Licence and be responsible for your business’ compliance with sponsorship duties;
4. Apply for your Sponsor Licence online, provide the mandatory supporting documents to the Home Office and pay the Home Office application fee(s);
5. Apply for / create and assign a Certificate of Sponsorship to each of your prospective workers and pay the Certificate of Sponsorship fee;
6. Pay the Immigration Skills Charge for each prospective worker (if applicable); and
7. Comply with your sponsor duties throughout the lifetime of the Sponsor Licence.

Key requirements and considerations

To be eligible to apply for a Sponsor Licence, the following requirements and considerations apply:

• The UK entity applying for the Sponsor Licence must be operating or trading in the UK (Expansion Worker Sponsor Licence applications are an exception to this rule). This will evidenced by the types of mandatory documents you will submit with your Sponsor Licence application.
• If your business operates in a sector that requires you to be registered, inspected or monitored by a regulatory body to operate lawfully in the UK, you must be able to evidence you are compliant when you apply for a Sponsor Licence.
• ‘Key personnel’ must be in place to manage the licence before an application is submitted: this requires, at a minimum, at least one senior employee or office holder (e.g. a Director) to be nominated to manage the licence. This person must be resident in the UK and be either a British / Irish national, hold ILR or status under the EUSS.
• You must have a robust HR system in place to monitor and track any sponsored employees and ensure ongoing compliance with sponsor duties once the licence is in place. There is no specified type of HR system employers must have, but it should be reliable, effective and sufficient to manage the number of sponsored workers.
• Suitability checks: a sponsor has a duty of honesty to the Home Office, they must be dependable, not behaving in a manner that is not conducive to the public good and be complying with UK wide law, including the prevention of illegal working legislation and UK employment law, such as payment of National Minimum Wage, holiday and sickness pay, maximum working hours, health and safety, and trade union and worker rights. Before a Licence is applied for, it may therefore be necessary for an employer to seek employment law advice to ensure its employment contracts and polices are up to date and compliant. Our employment department can assist you with any employment law services required.

All company owners, directors, all key personnel and anyone else who is involved in the day-to-day running of the business must be able pass the Home Office’s suitability checks. These checks include (but are not limited to) whether those individuals have any unspent criminal convictions, whether they have previously breached sponsor duties or immigration law, whether they have been issued any fines for unpaid VAT and whether they are prohibited from becoming a company director.  

• You must be able to offer a sponsored worker a ‘genuine vacancy’. A genuine vacancy has a defined meaning within the Home Office’s Sponsor guidance and whether this can be met requires careful consideration against a range of factors at the outset of the application process. The Home Office will request employers justify and evidence how they meet the genuine vacancy requirement, particularly where no Resident Labour Market Test (requirement to advertise the role externally) applies. To ensure employers can meet this requirement, there should be careful consideration of the proposed worker’s suitability for role on offer against the job description.

• The vacancy on offer must be eligible for sponsorship and must meet the required skill level and salary thresholds, as specified by the Immigration Rules.

• ·        The English language skills and employment status of any proposed worker should be considered at the outset of the application process – this in conjunction with other factors, will determine which worker visas they are eligible for and therefore which type(s) of Sponsor Licence your business should apply for.

We understand that every business requires tailored guidance and advice to navigate these requirements. As part of our consultation process, we will take time to assess your business’ ability to meet these requirements and advise on the available Sponsor Licence and worker visa options to meet your workforce needs in the short and long-term.

We will also explore whether any alternative (unsponsored / personal) immigration visa options are available to your prospective workers. Alternatives to sponsored work visas are an important consideration; they can provide the individual worker with fewer restrictions on their ability to work and for employers, they offer far fewer cost and administrative burdens and free an employer from ongoing sponsorship management duties.

Home Office processing times for a Sponsor Licence application

The standard processing time for applications is 8 weeks. You may however be able to purchase a priority service, reducing the wait time for a decision to 10 working days.

During the processing time, the Home Office may conduct a compliance visit or make enquiries with you to check your business is able to meet the requirements and comply with sponsorship duties. If a compliance visit or further enquiries are made, the decision-making timescale will be extended.

Your application may be refused if you failed to demonstrate you meet all sponsorship  requirements and duties.

Home Office fees for making a Sponsor Licence application

There are various Home Office fees that must be paid to apply for a Sponsor Licence and thereafter, to sponsor a worker. These fees vary depending upon the size of the UK business, how long the worker will be sponsored for and whether the business and / or worker wish to make use of any priority services to speed up the standard decision-making timescales.

Please get in touch with us to discuss your business needs and we can provide you with summary of the relevant Home Office fees that will apply.

What happens if your Sponsor Licence application is rejected or refused?

If your sponsor licence application is refused or rejected by the Home Office, this can have a hugely detrimental impact on your business operations and workforce planning. This is why we take great care in ensuring your business meets all of the requirements and understands its compliance duties before an application is submitted.

While there is no right to an appeal or Administrative Review if your sponsor licence application has been refused, other options may be open to you depending on the circumstances and grounds for the Home Office’s decision.

Rejections generally result from applications that are deemed invalid. Rejections are typically for applications that have relatively minor issues, which can easily be rectified by the applicant, for example, by paying the correct application fee. Invalid applications usually have their application fees refunded, allowing you to make a revised application.

Sponsor licence applications are refused where there are more substantial or fundamental issues with the application. Refusals are more problematic for the applicant as the licence application fee will generally not be refunded and you may be subject to a ‘cooling off’ period of 6 to 12 months – during this time you are not permitted to submit a new application. 

Your options after receiving a refused sponsor licence application will be determined by the Home Office’s reasons for refusal.

The first option is challenging the licence application refusal by way of an ‘Error Correction Request’. This request can only be made where the decision is a result of a Home Office caseworker error or where relevant supporting documents were submitted but not considered by the Home Office. These requests must be submitted within 14 days. It usually takes up to 28 days thereafter to receive a decision.

The second option to challenge a refusal of an application, where this was arguably unlawful, unreasonable or procedurally improper, is to apply for permission for judicial review of the decision. Judicial review is a process by which a judge reviews the lawfulness of a public body’s decision, examining the way in which the conclusion was reached, rather than evaluating the merits of the decision itself. A Judicial Review is a last resort remedy, it is time consuming to pursue, difficult to succeed with and carries cost risks – you may be liable not only for your own legal costs, but also those of the Home Office if your claim is unsuccessful. As such, even where this option is available to you, it may not necessarily be in your best interests to pursue.

This is a highly complex area that requires specialist guidance. You will also need to act quickly, as judicial review applications must be submitted within 3 months of the date of the refusal decision.

A third option is to resubmit an application that rectifies (if possible) the issues flagged by any refusal. If the Home Office have imposed a cooling-off period, you will need to wait for this to expire before another application can be submitted.  

We can advise and assist you in challenging any decision to refuse your sponsor licence application.