Business Immigration

Non-settled workers will be subject to UK immigration control. So, you may well be able to employ them, but this depends on their UK immigration status. An individual may have a particular visa or status that gives them a right to work in the UK without the need for formal employer-sponsorship. This is often the case for those with a student, graduate or ancestry visa. It’s also true of those with status under the EU Settlement Scheme.

For others, it may be necessary for you to formally sponsor an application for a work visa. This requires you to hold a sponsor licence under the UK’s points-based immigration system. In any case, you must assess and verify the right to work in accordance with current Home Office guidance before allowing work to commence in the UK, to avoid the risk of fines running into tens of thousands of pounds and/or possible revocation of your sponsor licence for visas.

If your worker does not require visa sponsorship, then you won’t have the reporting duties in respect of migrant changes of circumstances that you otherwise would. However, you must keep records of when a non-settled worker’s right to work will end, and ensure you take appropriate action to check continued right to work in advance of their current immigration status expiring.

The process of obtaining sponsor licences for work visas can take two to three months from start to finish (possibly longer if UK Visa and Immigration (UKVI) decide to make a site visit to assess your suitability to be a sponsor). The process can also be delayed if your application is rejected because of some administrative error, as it will have to be resubmitted. If your application is refused, you may have to wait several months before you can make a fresh sponsorship application (which may then be subject to greater scrutiny). Therefore, it is worth doing all you can to ensure that the application is successful, on the first attempt.

Some of the requirements necessary for a worker sponsor licence application include:

• Demonstrating that you are a genuine UK organisation
  Showing that you have sufficient key personnel at your organisation who are (or will be) based in the UK and are equipped to deal with sponsor licence compliance duties throughout the period of your licence
• Having adequate HR systems, training, and recruitment policies in place to meet your sponsor licence duties and deal with immigration and sponsorship issues
• That you are compliant with UK laws applicable to your organisation
• Are able to offer genuine employment in the UK for roles suitable for visa sponsorship in the work category (or categories) for which you are applying

This is done through a combination of an online application form and, crucially, supporting evidence and information in respect of the organisation and the roles it wishes to sponsor. So the application is not straightforward, and because of the time and expense associated with applying for a sponsor licence it’s important to get the application right so that it is not refused by UKVI. If it is, then in addition to losing the fee paid to the Home Office for the application, the worker(s) you are seeking to sponsor may look for an alternative employer in light of the delay, undermining any long-term planning you’ve made.

Yes, we regularly assist organisations making an inward investment into the UK in this regard. The immigration route changed recently, to one that now requires formal visa sponsorship by way of a sponsor licence, but it is possible to obtain such a licence by way of application by the organisation from outside of the UK, and then to send up to five individuals to the UK to set up the business here under the Expansion Worker route.

Alternatively, for example if you already have a trading presence in the UK, it may be possible for your existing UK operation to apply for a Worker licence under the UK points-based immigration system, and then sponsor the move of your existing workforce to the UK under either the Skilled Worker or Global Business Mobility routes.

When you are granted a sponsor licence, you are agreeing to understand and follow the Sponsor Guidance (SG) issued by the Home Office. The SG is split into parts and is lengthy, covering matters from visa sponsorship eligibility requirements, to reporting of changes of circumstances, record-keeping, and co-operating with UK Visas and Immigration (UKVI). Compliance with the SG is key, because non-compliance is often ground for UKVI to revoke your licence, resulting in the immigration status of all your sponsored workers being cancelled.

So, you must consistently meet the prescriptive UKVI rules around compliance, record-keeping and reporting. UKVI relies on sponsors to assist it in managing and tracking the whereabouts and status of sponsored migrants, and the Home Office expects you to carefully monitor and manage these individuals throughout the course of their sponsorship by you. This means:

• Maintaining all required records and documentation relating to sponsored workers
• Appointing suitable key personnel, including an Authorising Officer and Key Contact to manage compliance, and ensuring they are in place at all times
• Keeping track of your workers’ attendance at work and any relevant changes in personal circumstances (e.g. a change in home address)
• Monitoring and controlling your employees’ role and work status, noting that certain changes will require a new sponsored visa application
• Reporting any immigration status or visa compliance issues to the Home Office as required
• Responding appropriately to any requests from the Home Office, including agreeing to any site compliance visits it wishes to make

At DMH Stallard we work closely with our business clients to help them meet these requirements and help them deal with any regulatory intervention or scrutiny.

The sponsored work visa routes are many and various, and the number and type changes quite frequently. They fall under two broad schemes (formerly ‘Tiers’) covering ‘Workers’ (skilled, long-term employment) on the one hand, and ‘Temporary Workers’ (relating to specific types of temporary employment) on the other.

• Worker licences can be obtained to include one or more of the: Skilled Worker route; Global Business Mobility route for senior/specialist workers; and for longer-term employment of Ministers of Religion and international sports people/coaches in the UK.
• Temporary Worker licences can be obtained by eligible organisations for specific types of temporary employment, letting you sponsor people on a temporary basis. The variety of visa routes is larger than under the Worker licence, and encapsulates everything from charitable workers to the representative of your overseas business setting you up in the UK; and from seasonal agricultural workers to actors/singers. You can get a Temporary Worker licence for specific types of employment and visas, or you can potentially become a member of an existing scheme run by another Temporary Worker licence sponsor, to benefit from their visa sponsorship of your intended worker(s). This route for a sponsored work visa is particularly suitable for businesses wishing to scale up rapidly, and for those engaging workers in the creative industries and the charitable sector.

The laws on prevention of illegal working in the UK, expose employers to the risk of significant fines if they have failed to undertake right to work checks on all employees in accordance with the then current Home Office guidance. In addition, if you are a licensed sponsor of work visas then a failure to conduct right to work checks in accordance with the guidance is grounds for revocation of your licence, and the resulting cancellation of your sponsored workers’ visas.

At DMH Stallard we provide a wide range of employers with compliance guidance and advice on how to conduct right to work checks and maintain all necessary records.

There are now multiple ways in which to carry out a right to work check to comply with the Home Office guidance. Not all the methods are valid for every type of immigration status, so it is critical you choose the right one. Some of these enable you to carry out these checks without meeting the worker in person. These methods include using the Home Office online right to work portal. However, for certain categories of worker you cannot rely on the online right to work scheme, and will be required either to carry out the check by obtaining the original right to work evidence in your hand (e.g. a passport) and checking it in the presence of the individual (either in person or by video link) or, alternatively, to utilise the services of an Identity Service Provider (IDSP) approved by the Home Office.

Home Office guidance and systems for conducting right to work checks are changed or updated quite frequently, so you should always clarify that you are following the correct/latest guidance when conducting a check, and not permit work in the UK to commence until the check has been validly undertaken and recorded.

The costs associated with obtaining a sponsored work visa for someone can be substantial, so it’s crucial to consider the investment you will make as an employer, and the return you expect to see on it. Fees (as at October 2023) include:

• The fee for the sponsor licence itself – this varies depending on whether you are applying for a Temporary Worker licence or Worker licence. The Temporary Worker license fee is £536 and the Worker sponsor licence ranges from £536 to £1,476 depending on the size/status of your business*
• A Certificate of Sponsorship fee – £25 for each Temporary Worker visa you sponsor, and £239 for each Worker visa you sponsor
• In most cases, an ‘Immigration Skills Charge’ (ISC) of £364 (small/charitable sponsors) or £1,000 (larger/non-charitable sponsors) payable up-front in respect of each year of the visa being sponsored**

*There is no fee for adding a Temporary Worker licence to an existing Worker licence

**For visas of more than one year in length the ISC will be assessed in 6-monthly increments for the further period being sponsored

The worker will also be responsible for the cost of their own visa application. These costs can be significant, and usually include a hefty Immigration Health Surcharge. You might opt to contribute towards some or all of these costs on their behalf, and it may be possible to implement a claw back arrangement in respect of some or all of your investment in the event that the sponsored employment ends prematurely.

Subject to demonstrating some very specific eligibility requirements in respect of your non-UK organisation and/or business plans for the UK, you may be able to sponsor the move of a worker to the UK to establish your operations here. Alternatively, the individual might be eligible to work in the UK under another of the Temporary Work routes, such as Scale Up, or Service Supplier (which requires a UK based client to act as visa sponsor).

However, it is important to note that the vast majority of current work visa routes for the UK do require a formal UK-based sponsor organisation, and very often (but not always) that entity will need to be the sponsored worker’s employer.