Summary

This chapter sets out requirements for employer sponsorship under the general UK employment visa scheme. In effect, a sponsoring employer must have a UK base. If a trader’s employees were employed through such a base, this might preclude them being categorised as business visitors and may also impact on their personal taxation status.

This chapter also sets out certain current UK immigration rules in relation to employers’ responsibilities, visa types and conditions. These rules change from time to time. This is the current set of rules applicable to third-country nationals. The purpose of setting out the rules is to state the worst-case scenario of full immigration controls in the UK, applying to EU 26 citizens.

Sponsor Licence

UK work visas are required for almost all employment of non-EU nationals in the UK. In almost all cases and particularly for the standard skills-based Visa, the employer must hold a sponsorship licence. In practice, it would be very difficult for a sponsorship licence to be obtained by an entity which is not UK established.

A sponsorship licence is not required for a business visitor Visa.

For a general migrant Visa, the UK sponsor must be a genuine organisation or sole trader operating legally in the UK. For an intracompany transfer, migrant there must be a UK entity was a direct link by common ownership or control with the overseas entity for the migrant is currently working.

An employer needs a sponsor licence to employ someone from outside the European Economic Area (EEA) and Switzerland to work for the applicant in the UK. Sponsorship must be applied for. There are significant conditions and requirements.

The application is made on-line, and a prescribed fee is payable. The licence sponsor has certain duties including reporting certain matters to the Home Office including particulars of migrants, changes in circumstances, termination of employment absence and work et cetera. The strip typically sponsorship is a unique reference number. It does not guarantee that clearance visas will be given.

The employer normally has to pay the immigration skills charge to the UK government to assign the certificate of sponsorship to a tier 2 general migrant worker to intracompany transfer migrant entry to work for six months or more. The size of the sponsor’s organisation and period of employment determines the fee. Smaller employers take £364 for the 1^st 12 months and £182 for each additional six months. Other sponsors pay £1000 for the first 12 months and £500 for each additional six months.

The relevant UK guidance at present is here

https://www.gov.uk/uk-visa-sponsorship-employers

Licensing of Sponsors

Under the points-based system, an employer or education provider who wants to act as a sponsor needs a licence. When licensed, they are added to the register of sponsors. The register of sponsors lists the name, location and sponsor rating of every registered organisation.

Licensing depends on

• whether the business is eligible.
• the type of licence the applicant wants to apply for – this will depend on what type of worker the applicant wants to sponsor.

The applicant is given a licence rating if his / her application is successful. He will be able to issue certificates of sponsorship if the applicant has jobs that are suitable for sponsorship. The licence will be valid for four years. The applicant may lose his / her license if the applicant doesn’t meet his / her responsibilities as a sponsor.

Licences can only be applied for if:

• The potential sponsor is a legitimate organisation working within the law in the UK;
• There are no reasons to believe that the potential sponsor is a threat to immigration control; and
• the organisation will meet its sponsorship duties.

These criteria are to ensure that those working or studying in the UK do so legally. If the potential sponsor is awarded a sponsor licence, they will be given a sponsor rating – this will be an ‘A rating’ or a ‘B rating’ and will be listed on the register. Instead of an A or B rating, Tier 4 (General) sponsors could apply for a Highly Trusted sponsor licence.

Points are awarded under the points-based system for the following:

• Qualifications (this ranges from GCSE A-Level equivalents to PHD’s);
• Future Expected Earnings (the salary that is received by the applicant);
• Sponsorship (the type of sponsorship);
• English language skills;
• Available maintenance (funds used to support)

Sponsors Obligations

Employers seeking to sponsor migrants have duties to:

1. keep accurate and up-to-date records,
2. report changes in circumstances,
3. comply with the law,
4. co-operate with the UK Border Agency and
5. meet any additional tier-specific duties.

Those duties last until either (a) the sponsoring employer notifies the UK Border Agency that the migrant has ceased to be in their employment, (b) when the migrant leaves the UK and their entry clearance or leave to remain lapses, (c) when the migrant is granted leave to remain with a different sponsor or in another immigration category, (d) if the sponsoring employer surrender their licence, or (e) the UK Border Agency revokes the licence.

Employment Visas

In respect of non-EU nationals, the UK operates a points-based system of work visas. Tier 1 relates to self-employed persons. Tier 2 covers the majority of work-related visas. There is a cap on Tier 2 general visas. They are subject to the skills requirement and pay thresholds for the jobs concerned.

There two routes; the short occupation list and the labour market test.  Under the latter route, the employer – needs to show there is no suitable resident worker available to fill the post, having advertised it for a certain period. Jobs offered through the resident labour market test must meet skills and salary thresholds; £30,000 subject to occupations specific requirements.

Jobs under the shortage occupation list do not need to meet the resident market labour test and are subject to salary thresholds for each job, which may be lower than the above level. Each year two shortage occupation lists are published, one for the UK as a whole and one for Scotland only.

There are six broad categories of employment visa described by reference to various tiers. Three are based on points namely those applicable

• to certain skilled workers who have been offered employment sponsored by an employer,
• high-value migrants including investors, entrepreneurs and exceptionally talented persons who may enter without a job offer and
• temporary workers with a UK sponsoring employer participating in a youth mobility scheme

Non-points-based visas are potentially applicable to certain categories including

• Commonwealth citizens with UK ancestry (at least one grandparent born in the UK),
• employees and business owners from Turkey wishing to establish a business or already employed in the UK,
• certain other categories including representatives of overseas firms and businesses, domestic workers and others

Tier 2 (General) visa

Conditions for visa:

1. offered a skilled job in the UK
2. from outside the European Economic Area (EEA) and Switzerland
3. employed by a licensed sponsor to apply to live in the UK.

His / her sponsor checks that the applicant can do the job they’re hiring the applicant for and if it qualifies the applicant for a visa. They’ll assign the applicant a certificate of sponsorship to prove this.

The applicant can come to the UK with a Tier 2 (General) visa for a maximum of 5 years and 14 days, or the time given on his / her certificate of sponsorship plus 1 month, whichever is shorter.

The applicant can start his / her stay up to 14 days before the start date on his / her certificate of sponsorship.

The applicant can:

• work for his / her sponsor in the job described in his / her certificate of sponsorship
• do a second job in certain circumstances
• do voluntary work
• study as long as it doesn’t interfere with the job sponsored for
• travel abroad and return to the UK
• bring family members

The applicant can’t:

• own more than 10% of his / her sponsor’s shares (unless the applicant earns more than £159,600 a year)
• get public funds
• apply for a second job until started working for his / her sponsor

Tier 2 (Intra-company Transfer) visa:

Conditions for visa:

• his / her overseas employer has offered the applicant a role in a UK branch of the organisation
• from outside the European Economic Area (EEA) and Switzerland
• the applicant meets the other eligibility requirements

The applicant needs to be employed by a licensed sponsor to apply to live in the UK.  His / her sponsor checks that the applicant can do the job they’re hiring the applicant for and if it qualifies the applicant for a visa. They’ll assign the applicant a certificate of sponsorship to prove this.

They must also give the applicant other information the applicant needs when the applicant applies, for example, how much paid.

There are two types of Intra-company Transfer visa.

Long-term Staff -if transferring into a role that requires the applicant to have had previous experience working for the company.

Graduate Trainee This visa is for transfers into graduate trainee programmes for specialist roles. The applicant needs to be a recent graduate with at least three months’ experience with his / her employer overseas.

The applicant can come to the UK with a Tier 2 (Intra-company Transfer) visa for up to the maximum stay allowed for his / her visa type, or the time given on his / her certificate of sponsorship, whichever is shorter. The maximum stay for each type of Tier 2 (Intra-company Transfer) visa is:

• Long-term Staff (if the applicant earn more than £120,000 a year): 9 years
• Long-term Staff (if the applicant earn less than £120,000 a year): 5 years, 1 month

Graduate Trainee: 12 months

The applicant can start his / her stay up to 14 days before the start date on his / her certificate of sponsorship.

The applicant can:

• work for his / her sponsor in the job described in his / her certificate of sponsorship
• do a second job in the same profession and at the same level as his / her main job for up to 20 hours per week
• do voluntary work
• study as long as it doesn’t interfere with the job sponsored for
• travel abroad and return to the UK
• bring family members

The applicant can’t:

• get public funds
• start working before the applicant get a visa

Other Conditions

It is usually a condition of leave that the person does not have recourse to public funds. This may be obliged to register with the police if this is required under the immigration rules.

Generally, a migrant must have a job offer from a UK based licence employer that fills a recognised gap in the UK labour market. Job must be on a list of occupations in accordance with codes of practice which are one of a specified number of occupations or on the shortage occupation list.

A Tier 2 migrant must be able to demonstrate he can support himself in the UK. He must not have been in the UK with entry clearance or leave to remain as a Tier 2 migrant any time within 12 months before the date of the application other than under certain conditions including gross salary > £120,000 certain intracompany transfers or in respect of certain short assignments.

Applicants must pay the immigration health surcharge for themselves and any dependents.

A tier 2 general migrant Visa may be granted a visa for five years and one month. The person may thereafter apply for settlement.

There are rules on intracompany transfers which differ in some respects might be relevant if traders had an Irish and UK company.

The shortage occupation list is published. The resident labour market test requires certain advertisements for the job and a failure to recruit a suitably qualified settled worker.

For an intracompany transfer worker, there must be at least the appropriate annual salary of £30,000 or more and a certificate of sponsorship.

If the gross annual salary is below £73,900 no points will be awarded unless the applicant has been working outside the UK for at least 12 months in a business established outside the territory of the UK which is linked by common ownership/control of the sponsor, in order to meet the requisite 50 points threshold.

No points are awarded for a certificate of sponsorship if the Secretary of State has reasonable grounds to believe that the job described in the application is not a genuine vacancy or the stated requirements are inappropriate or have been tailored to exclude resident workers.

The government has also imposed overall limits on the number of tier 2 certificates of sponsorship that may be granted.