This guide looks at whether a business can sponsor a migrant worker, what is involved and also other options available.
Current guidance confirms that employers should not check a job applicant’s right to work in the UK until the later stage of the recruitment process to avoid race discrimination. This means that employers are often faced with a difficult situation when they discover the successful candidate for the role does not have the right to work in the UK, unless they can be sponsored by the business.
Is the company eligible to become a sponsor of a migrant worker?
To be eligible to become a sponsor of a migrant worker, you must demonstrate that the business has appropriate systems in place to fulfil its sponsorship obligations, for example, appropriate HR systems. You must also show that the company itself is suitable. For example, that key individuals do not hold any relevant criminal convictions or have a history of failure to comply with immigration requirements.
You will be required to provide detailed information regarding your business to support your sponsor application, for example, Companies House information and your accounts. The Home Office may visit your business to ensure that you’re trustworthy and capable of carrying out your sponsor duties as part of the application process.
Bear in mind that once you become a sponsor you will be under onerous reporting requirements and liable to inspection at any time to ensure you are complying with your sponsor duties.
Is sponsorship available for the role?
Employers generally sponsor workers under a Tier 2 visa. This is a route designed for skilled workers who will be engaged in long term roles. Once an employer has become a sponsor, they must apply for a Certificate of Sponsorship to employ the migrant worker on the basis that it’s a skilled role the employer cannot otherwise fill with someone who is settled in the UK.
The Home Office publishes a detailed list of the roles that may be eligible for Tier 2 sponsorship, including the required salary levels (which you can check online). Each role is assigned a Standard Occupational Classification code (a “SOC Code”). The starting point for an employer is to check your vacancy against these SOC codes to establish if the role is potentially eligible for Tier 2 sponsorship.
Did your recruitment process satisfy the advertisement requirements?
Assuming you can match your role and its requirements to a relevant SOC code, the next stage is to review your recruitment process.
To recruit a non-EU migrant worker you will need to be able to show that the role is a genuine vacancy which could not be filled by a UK national or another worker with an existing right to work in the UK, such as an EU national. Unless your role falls within the Shortage Occupation List or another exception, you must demonstrate you have complied with the Resident Labour Market Test (RLMT), effectively testing the market to ensure that there are no other eligible candidates. This process is due to be abolished in January 2021 but remains in force for recruitment in 2020.
The way you meet the RLMT requirement is via a job advertisement process. You must advertise the role in two different media for a minimum of 28 days. In most cases, one advert must be placed on the “Find a Job” service, the official government site for vacancies. You must keep records of your advertisements, which must have a clear start and end date.
Due to the specific requirements regarding what information must be in the job advert, most employers in this situation find that they have to re-commence the advertisement process.
If you are required to re-advertise the role, you should not specifically tailor the requirements of the role to the candidate you have in mind, or this could be judged to not be a genuine recruitment process.
You need to be able to show that all applicants were given the same opportunities to demonstrate their skills and experience required by the job advert at interview and you cannot reject an applicant on requirements that are not set out in the job advert. You will need clear notes of why you are rejecting any other applicants based on the requirements of the job advert which will stand up to scrutiny by the Home Office.
Can I choose a migrant worker over a settled worker?
No. If you advertise the role and a settled worker applies and meets the criteria in the job advert, you must appoint that settled worker even if the migrant worker has better skills and experience. This is why it is important to think carefully about the requirements for the role that you put in your job advert.
If you already have an alternative candidate, or you re-advertise the role and an appropriate candidate applies who is a UK national or has an existing right to work in the UK, you must give the role to that person.
Is the individual eligible for a visa?
Once you have identified a migrant worker for a role, before applying for a sponsor licence or a Certificate of Sponsorship we strongly recommend you check they are able to meet the requirements for their own individual visa first to avoid a wasted application. For example, checking that they haven’t breached UK immigration rules in the past or have a criminal record.
How long does the process take?
Assuming your original advertisement process did not meet the RMLT criteria, you will need to allow a further 28 days for the advertisement process, together with time to shortlist and interview candidates from this process, so say 6 weeks initially.
Once you have submitted your application for a sponsor licence, it will usually take somewhere between 4 – 8 weeks for the Home Office to make a decision, depending on whether a compliance visit to your premises is needed. If your application is granted you will need to allow further time for the applicant to apply for their individual visa before commencing work. This can take up to 12 weeks.
What are the costs involved?
You will need to pay a sponsor licence fee when you apply for your licence, which is currently £536 for small businesses and charities and £1,476 for medium and large businesses. You then need to pay a fee for each Certificate of Sponsorship, currently £199 per individual. For the majority of workers you will also need to pay the Immigration Skills Charge which is currently £364 or £1,000 per year per individual you sponsor, depending on the size of your business. This is therefore not a cheap exercise and you should consider these costs carefully.
What other options are there?
Before you go down the Tier 2 sponsorship route you should explore any other potential options with the candidate, for example whether they are eligible to apply for the right to work in the UK due to their ancestry or their relationship with their partner.
Sponsoring a migrant worker is a complex process and we recommend you obtain specific legal advice if you are considering this process. This article is designed to provide general guidance only and does not constitute legal advice.