Put simply, this means employers will need to be licensed as ‘sponsors' by the UK Border Agency (UKBA) to bring in, or to renew the immigration status of, these migrant workers after the November start date. Employers will not be licensed if they cannot demonstrate they are able to track, monitor and report to UKBA on their migrant worker population. Importantly, migrant workers themselves will also need to demonstrate they meet the requirements of the immigration rules, including they have enough points to qualify for the immigration category for which they are applying.
While these changes sound simple in theory, there are a number of areas that employers are seeking clarification over. Here is our guide to some of the most common questions and answers you need to know:
Q: Who needs to be a sponsor?
A: Once this new system starts, only an employer licensed as a sponsor by UKBA will be able to arrange for a migrant worker to work in the UK. Similarly, an employer who has obtained a work permit for an employee before this change-over will not be able to extend the employee's right to remain in the UK to work unless the employer is licensed as a sponsor and the employee meets the points based criteria under the new system.
Q: What is UKBA looking for in a sponsor?
A: UKBA will license a UK employer as a sponsor if:
- the employer is a bona fide organisation operating lawfully in the UK;
- the employer is trustworthy; and
- the employer is adjudged to be capable of carrying out its duties as a sponsor.
Q: How will an employer demonstrate that it is a bona fide organisation?
A: UKBA wants to ensure the employer is based in the UK, is operating lawfully and is able to offer the proposed job. Documents required to prove satisfaction of these criteria are similar to those required under the current work permit system. Employers are required to apply as sponsors tier-by-tier and category by-category, and there are special criteria and additional documentary requirements for each of these tiers and categories.
Q: What information is required to prove trustworthiness?
A: UKBA will consider the immigration track record of the employer to date and the personal details of the people who will be licensed by the employer as having various levels of responsibility for operating the sponsorship system for the employer. The application also calls for disclosure of transgressions of UK immigration law, both by the employer and by the individuals named in the application.
Q: What are the duties of a sponsor under this system?
A: Every UK employer has certain record-keeping duties, whether or not they intend to register as a sponsor. All employers must check an employee's immigration documents prior to employment and retain copies of them. Employers must verify (at least annually), that workers who have limited leave to remain and work in the UK are still in status. Sponsors will also have to ensure the personal contact information of its migrant workers is kept up-to-date. Sponsors will have an obligation to report to UKBA the occurrence of any of a number of events involving any of its employees who are subject to immigration control. Events include a migrant worker's unauthorised non-attendance at work for more than 10 days, non-compliance with immigration requirements or disappearance, and significant changes in the migrant worker's or the sponsor's circumstances. A sponsor also has an obligation to comply with UK immigration laws and to co-operate with UKBA.
Q: How does UKBA assess that a sponsor-applicant is capable of complying with these duties?
A: UKBA will review any history of non-compliance with immigration laws and grade the employer's human resource systems. In reviewing the human resource systems, UKBA will look at five areas of an employer's capabilities:
* Monitoring immigration status of workers
* Maintaining contact details of employees subject to immigration restrictions
* Record-keeping
* Migrant tracking and reporting
* Recruitment practices and accreditation.
Q: Who will be responsible for an employer's sponsorship rights and responsibilities?
A: Four positions must be filled by individuals identified in the sponsorship application. One person may fill more than one of these roles:
Authorising Officer: This person must be a senior, competent officer within the organisation and be based in the UK. The authorising officer will be responsible for the activities of users of the sponsor management system - the web-based interface with UKBA through which the sponsor will exercise its sponsorship activities - on behalf of the employer. UKBA will hold the authorising officer fully accountable for the organisation's failures as a sponsor.
Key Contact: This UK-based employee will be the employer's main point of contact with UKBA.
Level 1 User. This UK-based employee or authorised representative will have full rights to operate the sponsor management system on behalf of the employer.
Level 2 User. A Level 2 User will have only limited rights to operate the sponsor management system on behalf of the employer.
Q: What happens after the sponsorship application is submitted?
A: Based on its assessment of the information in the application, supporting documents, its own investigations and a visit by a compliance officer, UKBA will license the employer as a sponsor for four years or refuse to register the employer. A sponsor will be issued with a license number and given access to the sponsor management system. Sponsors will be given an "A" rating or "B" rating. The "A" rating means the employer's application and systems are acceptable. The "B" rating means the sponsor must do better in some areas.
Q: Are there penalties associated with the sponsorship system?
A: Failure of an employer to comply with its obligations as a sponsor may result in the following penalties:
- Border Agency officials will be empowered to issue on-the-spot civil fines for failings identified in an employer's carrying out its obligations as a sponsor. Fines may also lead to an employer's license being downgraded or revoked.
- The failure to comply, or to be seen as capable of complying with these obligations, may result in the denial of a license application or the employer being granted only a "B" rated license.
In short, these sanctions can affect the employer's ability to bring more workers into the UK and to continue to employ workers it has previously sponsored.
Conclusion
The new sponsorship system makes new demands on employers. Like it or not, employers wanting to continue bringing migrant workers to the UK will need to meet these challenges - and soon.
Scott M. James is of counsel at Faegre & Benson
