Changes affecting
Tier 2 employers
updated UKVI guidance

19 November 2014

Changes Affecting Employers – updated UKVI guidance

UK Visas and Immigration (UKVI) has issued a new version of its guidance on how to apply for a Tier 2 or 5 sponsor licence and how to sponsor an employee. The guidance is to be used for all Tier 2 and Tier 5 applications made on or after 6 November 2014 and includes some key updates in the guidance that all sponsors should take note of.

In this article we highlight the changes announced that apply to Tier 2 sponsor licence holders:

Employer Duties:

• UKVI has added the provision that a sponsor must only employ an appropriately qualified and/or registered migrant for a genuine vacancy. Entry Clearance Officers and caseworkers will be able to refuse applications where there are grounds to believe that the job does not genuinely exist. Whether or not the vacancy has been made up or exaggerated to meet the Tier 2 skills threshold will be assessed, along with whether or not the Resident Labour Market Test (RLMT) and/or the vacancy has been tailored to suit a particular migrant worker and thereby to exclude resident workers.

• So what is a genuine vacancy? In order for a vacancy to qualify as genuine, it must require the jobholder to perform job-specific duties and meet all of the requirements of its Tier and Standard Occupation Classification (SOC) category. It is not allowed to include dissimilar or lower-skilled duties or have an exaggerated or incorrect job description to keep it in line with the Tier and category. To this end, UKVI may request additional information from you and may refuse a migrant’s application if this information is not provided.
• The new guidance reminds sponsors that should any of their migrant employees gain Indefinite Leave to Remain (ILR) then the sponsor is obliged to inform UKVI of this change within ten working days of becoming aware of it.
• Reductions to salary from what was stated on their Certificate of Sponsorship (CoS) due to the economic downturn will no longer be accepted and must stay in accordance with the current rate requirements. If the salary drops below this rate, then sponsorship of the migrant is no longer possible and this must be reported via the SMS. An exception to the rule will be regarding the salary for nurses undertaking OSCE

Documents you must retain as an employer:

The new guidance contains extra stipulations regarding the retention and clarity of documents held by sponsors for each migrant you employ, and these are as follows:

• As a sponsor, you are already required to retain all documents submitted with the sponsorship application.  However, you must now also include any documentation which confirms the migrant’s skill level if this was included in the RLMT, along with copies of any registration and/or confirmation letter the migrant is required to have in order to do the job, eg. proof of registration with the General Medical Council if the migrant is a doctor.

• Evidence of the amount and frequency of all salary payments made to each migrant must be retained, showing the transfer of each payment into the named migrant’s bank account or onto their pre-paid card.

• If you wish to rely on other account records, UKVI must be able to clearly identify the specific migrant’s wage in order to assess whether the migrant is being paid in line with UKVI guidance and what was originally stated on the Certificate of Sponsorship (CoS). Accounts that only show ‘wages for personnel’ are not acceptable.

• Appendix D of the new guidance also reminds new sponsors that they must also retain a copy of any contract of employment between sponsor and migrant which clearly shows the names and signatures of all parties involved, the start and end dates of the contract, details of the job or work that the migrant has been contracted to do and an indication of how much the migrant is to be paid.

• If the migrant receives any allowances as part of their salary package, evidence of those allowances must be kept unless they are clearly shown in a contract of employment or on the migrant’s payslips. For example, if you are providing accommodation for the migrant, evidence must be provided which clearly states the amount payable in rent per month. You must always be able to accurately document the value of any allowance you pay in cash or by way of goods and services.

• Copies of the migrant’s payslips must always be retained, clearly showing the name, NI number, tax code, any allowances paid and deductions made.

Updates to employer compliance and sanctions:

• As a sponsor, you have a duty not to provide false statements or documents and to ensure that all necessary documentation is valid and up to date. The guidance also reiterates the UKVI’s right to take action against any employer who falsifies documents.

• If a sponsor, a representative or an employee is found to have provided false information during the application process, then UKVI will take information gained in interviews into account when assessing how to take action against you.

• As a sponsor licence applicant you must now inform UKVI of any previous history of non-compliance, including any pending criminal prosecutions or any failure to pay VAT, or if you have been suspended or removed from any sponsor register up to 5 years prior to your application date. Any such information will be taken into account as part of the suitability criteria. Current sponsor licence holders should be aware that compliance checks are commonplace and that you must provide any information and documentation which may be asked of you at any time.

• The UKVI uses the updated guidance to re-affirm its right to pass information about you and your employees to other government departments and agencies, local authorities and fraud prevention agencies to help them carry out their functions and to prevent fraud and criminality.

• The new Guidance reiterates the UKVI’s right to take action against an employer if they have reason to believe that they pose any risk to immigration control. For example, if they determine that you are not using the processes or procedures necessary to fully comply with your sponsor duties. In the case that a risk to immigration control is found, the UKVI can look to downgrade your licence rating.

• UKVI has added HM Revenue and Customs and the Insolvency Service to the list of bodies which it may inform of any illegal employment.

Click here for the full version of the Tier 2 and 5 of the Points Based System Guidance for Sponsors and contact Smith Stone Walters for advice and guidance in relation to these changes

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