ukborderMargaret Burton will be speaking at Symposium events’ Expatriate Management and Global Mobility  Forum on Tuesday 9th July 2013, where she will provide an immigration update on the UK’s Points Based System, European and global immigration developments and UKBA audits and sponsor licence protection.

Any UK employer wishing to hire overseas nationals in their business may need to consider obtaining a sponsor licence from the Home Office to enable them to bring foreign employees to the UK.  But what does this process entail for employers and, as the Home Office can visit the corporate sponsor before or after the licence is granted, what considerations does this process raise?

At the time of writing, the sponsorship licence application process is principally the same whether the employer wishes to bring one or 100 foreign workers into the UK.  The first matter to consider is whether a licence is required at all – can the administration (and fee)  attached to the sponsor application process be avoided by making another type of visa  application altogether which does not require a licence?   Some overseas nationals are able to work here freely through UK or European connections or another type of visa could be available.   The sole representative visa for example can be used in specific circumstances to enable a senior employee of an overseas company to set up a new subsidiary or registered branch in the UK.   The full range of possible options needs to be considered to decide which course of action best addresses the immigration needs of the organisation and the individuals intending to come here.

If a sponsor licence is required, the application has to be submitted on line after consideration of a number of matters – such as who will be appointed as “Authorising Officer” in the sponsoring company and be held responsible for the organisations immigration compliance.  One feature of the UK “Points Based System”, introduced in 2008, has been renewed emphasis on the employer being held responsible for their own immigration compliance and being held accountable to the Home Office.  As part of this system, the Home Office can visit any employer before granting the sponsor licence – and/or after the licence is obtained – to check on their immigration processes.  These visits are usually regarded with some anticipation by those in the organisation who have responsibility for immigration processes – and with good cause.   The outcome of the audit can result in the employer not being granted the licence or the licence being rated as a “B” licence rather than “A” licence.   A “B” grading entails a more onerous process must be followed to obtain visas for potential foreign employees and an action plan must be put in place to gain an “A” rating in future.

At the current time, there are concerns that Home Office checks follow a “one size fits all” template, with the same or similar questions being asked across large and small organisations, both those established in the UK for many years and newly incorporated entities.   We understand the Home Office is currently looking at changing the process to ensure more tailored visits according to sponsor type.   In addition, in the past, Home Office feedback after their visits has been rather sporadic with some companies not receiving feedback or only receiving it some months after the visit has taken place.   This does not provide companies (who have often invested considerable time and money in preparation for the Home Office visit), with the assurance they need that their investment has been worthwhile and their immigration compliance processes are sound.  The Home Office have begun to feedback to sponsors on a more regular basis in recent months and a continuing emphasis on feedback will bring welcome closure to a prospective licence applicant or current sponsor.

Having attended a number of licence visits, and conducted some “test” visits of our own for companies wanting feedback on their immigration processes, corporate sponsors, large and small, are generally compliant and take their sponsor duties very seriously.    Some common gaps in processes include not conducting annual right to work checks for those with limited leave to remain in the UK (as well as pre employment right to work checks for all employees) and lack of timely reporting through the Home office’s on-line management system – the “SMS”.    The Home Office requires sponsors to report a number of events within 10 days of the event occurring.  These include reporting if a sponsored migrant does not turn up for their first day at work (including the reason for non-attendance such as a missed flight) or if a sponsored migrants employment contract ends earlier than was originally intended (and providing the name and address of any new employer if known).   Involvement in a merger or take- over must also be reported within 28 days but can be overlooked if corporate legal departments are not aware of immigration reporting duties.

In conclusion, the sponsor licence process is one which has become an integral part of UK immigration compliance although is not always necessary in order to bring overseas nationals to the UK – alternative options may apply.   If a licence is applied for, Home Office visits can be anxious events for the corporate employer although we can expect more regular feedback from visits and some potential changes in visit format and approach.   Whether making an initial sponsor licence application or whether a licence is already held, employers should take time to prepare for a Home Office visit and consider arranging their own “trial” compliance tests before “an inspector calls”.

About the author

Margaret Burton, Director, Deloitte

Head of Deloitte’s UK immigration services group, Margaret has over 20 years experience managing global immigration client accounts and devising global migration strategy for multinational companies.

Her team in the UK specialises in corporate immigration policy reviews, providing immigration “health checks” focusing on immigration compliance and advice relating to all categories of UK visa application, including those for high net worth investors and entrepreneurs.

Margaret is a frequent guest speaker at immigration events in the UK and overseas.