Tier 2 and Tier 5 sponsorship
Work start dates
Appendix D
The Tier 2 and Tier 5 guidance is now over 200 pages long, following the changes introduced in November 2016. The common theme in the changes is a renewed focus on genuineness and the removal of untrustworthy sponsors from the register. For example, employers can no longer add a related entity as a branch under its licence if that branch's sponsor licence is suspended or has been revoked in the last 12 months. This will be problematic for Tier 2 migrants who are sponsored by an employer with a suspended licence, as they cannot be transferred to a related group entity which holds an A-rated sponsor licence.
If an employer applies for a new sponsor licence, those who would need to serve as the authorising officer or key contact must not owe the Home Office any litigation debt. The Home Office now has discretion to refuse sponsor licence applications or revoke an existing licence on this ground in addition to the myriad of circumstances in which they can downgrade or revoke a licence.
The Home Office has also begun charging employers to expedite change of circumstance requests, which usually take up to 16 weeks to process. The Home Office offers a processing time of five working days at a cost of £200 per request for limited types of change request (eg, increase in unrestricted certificate of sponsorship allocations and appointment of new authorising officers).
For overseas non-European Economic Area (EEA) nurses, there are more restrictive rules on how and when they must satisfy the examination requirements to become a registered nurse with the Nursing and Midwifery Council while under sponsorship. Employers that fail to report or continue to employ pre-registration nurses who have failed the requisite examination will face increased scrutiny and risk suspension or revocation of their licences.
One change that will have an immediate effect on employers is the work start date used in the certificate of sponsorship. This can no longer be delayed by more than four weeks. Accurate time management is therefore crucial. If an individual is unpaid for more than four weeks from the original start date, employers cannot continue the sponsorship. Employers must therefore choose the work start date carefully and anticipate that a delay in a start date for an employee may be caused by a lack of priority service processing in the applicant's country, delays in IELTS score reporting or issues with notice periods with the applicant's previous employer.
Sponsors that hold a Tier 5 licence can certify the maintenance for dependants on the certificate of sponsorship (effective January 2 2017) if the dependants are applying together with the main applicant.
There has been a major change in the document retention period. The new guidance states that all documents must be kept for one year from the date on which the employer ends the sponsorship or the point at which a compliance officer has examined and approved the documents, whichever is the shorter period. Previously, sponsors had to keep documents for the longer of the two periods, so sponsors were required to wait for a Home Office audit before being able to dispose of documents.
Other welcome changes to Appendix D include replacing the requirement to keep a detailed job description with a requirement to keep a copy of the contents of the ad that includes the job title, main duties and responsibilities, skills, qualifications and experience needed, together with an indication of salary package or salary range and the closing date for applications. Therefore, it is acceptable for a job description to be contained in the body of the ad. Previously, a separate job description was required ‒ this allowed the Home Office to compare the ad with the company job description. A job description must still be held on file where no resident labour market test has been undertaken.
Employers must still keep all applications shortlisted for final interview. However, the guidance now requires only 'interview notes' for each settled worker who was rejected. Settled workers include EEA nationals, British nationals and those with indefinite leave to remain. Employers that have not interviewed settled workers need not retain reasons for why the interviewees did not meet the requirements of the post.
For further information on this topic please contact Yuichi Sekine at Magrath LLP by telephone (+44 20 7495 3003) or email ([email protected]). The Magrath LLP website can be accessed at www.magrath.co.uk.