Applying for a Tier 2 Sponsor Licence

In this series we are looking at the process companies need to go through if they want to recruit a foreign national from overseas.

The Home Office announced today that it intends

"to open key routes from Autumn 2020, so that migrants can start to apply ahead the system taking effect in January 2021. Employers not currently approved by the Home Office to be a sponsor should consider doing so now if they think they will want to sponsor skilled migrants, including from the EU, from early 2021."

If you are an employer and you believe you will need to sponsor migrants from 2021 then contact us now to discuss your needs. More information about our sponsorship service for companies is available here.

Applying for a Tier 2 Sponsor Licence

We have already covered whether a company needs a licence and whether the role they wish to recruit for will be eligible (see this previous post). Here we cover the process for companies making an application to the Home Office for a Tier 2 Sponsor Licence and obtaining that approval.

At this stage you will have established that there is a role which you need to fill and which is eligible for sponsorship under the Tier 2 skilled worker scheme.

Is a Resident Labour Market Test needed before you apply?

Where recruiting for certain roles, you will still (at the time of writing) need to run a Resident Labour Market Test (RLMT) to ensure that there is not a suitably qualified resident worker able to fill the role for which you are recruiting. Note that this requirement is due to be scrapped from January 2021, but if you are planning on sponsoring migrants before this time it may still apply.

Some roles will be automatically exempt from the RLMT due to their placement on the Shortage Occupation List. Others roles may be exempt for other reasons and in certain circumstances.

If the role is not exempt, the process by which you discover whether a suitably qualified local worker exists is to advertise the role and undertake a compliant recruitment process as prescribed in the sponsor guidance.

If, following this process, and assuming the RLMT has been undertaken in a compliant way, there is no resident worker who has the necessary qualifications, skills or experience able to fill the role, the RLMT should be considered to have been satisfied.

It has always been our practice, taking a belt and braces approach, to advise clients to undertake the RLMT – if it applies – before applying for the Tier 2 Sponsor Licence.

In this way, at the time the Tier 2 Sponsor Licence application is made, the applicant company can make a strong case as to why the licence is required in a particular case.

Preparing your Tier 2 Sponsor Licence application

Assuming that you have either run a compliant RLMT and found that sponsorship of a migrant worker is required, or the role is otherwise RLMT exempt, the next step is to apply for the Tier 2 Sponsor Licence.

Applications are made to a specific Tier 2 Sponsor Licence applications team at Home Office in a two-step process: initially via an online form, and then followed up with the required hard copy supporting documents within 5 working days.

Very broadly, when considering an application from a company applying for a Tier 2 sponsor licence (and the right to sponsor migrants to come to the UK and work), the Home Office will expect the following basic criteria to be met

be a genuine business, and operating or trading lawfully in the UK
be based in the UK
hold the appropriate planning permission or Local Planning Authority consent for the type of business operated at the trading address (if applicable)
be 'honest, dependable and reliable'
not represent a threat to immigration control, and
be capable of complying with the sponsor duties and responsibilities, and evidencing that compliance as confirmed in the relevant guidance

As it states in its guidance, sponsorship is a privilege, not a right. The Home Office is looking to award Tier 2 Sponsor Licences to businesses which are as enthusiastic as they are about immigration control and compliance.

‘Genuine business’

For most businesses, demonstrating that they are a genuine organisation will be one of the most straightforward parts of the application, requiring the information and documentation set out in an appendix to the full policy guidance, Appendix A. The type of documentation required will depend on the nature of the applicant organisation’s activity.

Organisations are also required to provide information on the sector in which they operate, their opening/operating hours, and to explain why they are applying for a sponsor licence.

They must provide an up to date hierarchy chart detailing any owner, director and board members. Where a business has 50 employees or fewer, it must list all employees and set out the names and titles of all staff.

Information about the role(s)

In the Tier 2 Sponsor Licence application, you will need to include the following information for each role you wish to sponsor:

job title and Standard Occupational Classification (SOC) code
duties
where the job sits on the hierarchy chart
minimum salary you would guarantee if the job were vacant today
skill, experience and qualifications required

It will be important, for the purposes of this stage of the Tier 2 Sponsor Licence application at least, to have gone through the steps outlined in our previous note regarding SOC code determination and role eligibility.

Information about the prospective employee(s)

The guidance requires that, if you have already identified someone that you wish to employ, you provide evidence of how you identified this person. If via a recruitment process, the guidance states

you should include copies of advertisements placed to recruit for the job, details of any applicants and why they were not suitable for the job. You should confirm whether the person is already working for you.

If you have not advertised the job and the migrant is not currently working for you, you should confirm how you identified that this person was the most suitable for the job.

If you have already identified a person, including if they are a migrant already working for you, and intend to sponsor them, you should provide the following details of the person:

full name
date of birth
nationality
current immigration status
current job title and duties
3 monthly payslips, if applicable

Other pre-licence application steps

Although we have covered the main steps here, depending on the circumstances of your organisation, you might be required to take additional steps in preparation for the application, or to provide additional evidence or information in support of the application.

There is extensive guidance for organisations making a Tier 2 Sponsor Licence application, and applicant entities should ensure they have considered it all carefully before submission. The main guidance documents are as follows

Human Resources systems

It is a requirement of holding a Tier 2 Sponsor licence that organisations have Human Resources systems in place to ensure that they are able to meet the various sponsor's duties and responsibilities as set out in the guidance.

Whilst organisations do not need to provide evidence that these systems are in place with their sponsor licence application, it is something that each applicant organisation should review and consider carefully before submitting an application.

This is a whole subject in itself, but what this means in practice is that you have HR systems sufficient to ensure that you can

monitor your employees’ immigration status · keep copies of relevant documents for each employee, including passport and right to work information
track and record employees’ attendance
keep employee contact details up to date
report to UKVI if there is a problem, for example if your employee stops coming to work

In the event that the Home Office arrange a compliance visit, it is likely that a compliance officer will review these systems carefully.

Main image credit: Photo by Kristin Hardwick on StockSnap