Following on from the March Statement of Changes in Immigration Rules, the ‘Tier 2 and Tier 5: Guidance for Sponsors’ has been updated. This Guidance reflects the Statement of Changes by updating the minimum salary rates for SOC codes, as well as altering some of the definitions and processes relevant to sponsors.
Importance of complying with the Sponsor Guidance
It is extremely important that, when a new set of Guidance is published, sponsors take the opportunity not just to update themselves on any changes, but to also check that they remain compliant generally with the sponsorship rules and duties.
Unfortunately, time and time again, the courts have upheld UKVI enforcement action, even where the breach appears to be isolated or minor.
In the most recent case concerning a challenge against a decision to revoke a sponsor licence, the judge reiterated the importance of compliance by stating that:
‘The case emphasises that, as has been observed in previous judgments, sponsor status is a fragile gift which depends on absolute compliance with the requirements of the Guidance.’
Salaries and recruitment
The Statement of Changes updated the SOC code appropriate salary rates contained in Appendix J of the Immigration Rules. However, initially some incorrect rates were published. This has been clarified in Annex 9 of the Guidance and sponsors should ensure they are awarding the correct salary rate by referring to both Appendix J and Annex 9.
As a result to the changes in the appropriate salary levels, a transitional provision has been included in the Guidance to account for Resident Labour Market Tests (RMLTs) which were conducted prior to the new appropriate salary rates coming into force on 30 March 2019. Sponsors should note that:
“If you advertised a job before 30 March 2019, but you assign a CoS on or after that date, you may find that the highest salary stated in your advertisement is lower than the new appropriate rate set out in the ‘Rates of pay’ section. If this happens, the salary you state on the CoS must meet the new appropriate rate. If this is higher than the rate you originally advertised, you do not need to carry out a new resident labour market test”.
The Guidance also widens the scope for those switching from Tier 4 (General) to Tier 2 (General). An individual must be sponsored under Tier 4 by specified types of education providers. In the latest Guidance the type of education provider has been updated to include a UK recognised body or a body in receipt of public funding as a higher education institution from the Office for Students. Those who hold leave under Tier 4 (General) are also now able to switch into Tier 2 (General) three months before the expected completion date of their course.
Processes
As the Tier 2 monthly Restricted Certificate of Sponsorship (RCoS) allocation cap was met for several months last year there has been a change in the RCoS application process.
Previously the Home Office awarded RCoS on a monthly basis on a points based system depending on the skill level of the role, the recruitment process used and on salary ranges. This led to some unfairness as an individual could be at the top of one salary range and narrowly miss out on the points available.
The new process awards one point per £1,000 of gross annual salary, up to a maximum of £160,000. This should lead to a more nuanced system should the allocation cap be met again.
In addition, information on ‘top-up’ charges has been included in relation to the Immigration Skills Charge. A top up charge may be requested by the Home Office where sponsors have not paid the full amount that is due.
Definitions
Some definitions have been updated including that of a ‘settled worker’ which has changed from an EEA national exercising ‘EU Treaty Rights’ to one exercising ‘free movement rights’. We think this is a small but significant change. It could signal that if an EU national entered the UK during any ‘transition period’ as a result of the UK leaving the EU, they would still be considered to be a settled worker. This may help to reassure some organisations that their EU nationals do not yet need to come under the sponsorship scheme.
In addition, the definition of ‘close relative’ has been updated to include Aunt and Uncle. An SMS user cannot issue a CoS to a close relative so sponsors should be aware of the expanded definition of the term.
There has also been a new revocation ground added to Annex 6. This states that where the sponsor passes the payment of the Immigration Skills Charge on to the migrant, or tries to recoup the charge in any way, the Home Office may revoke their sponsor licence.
For further assistance
If you have any questions or need legal assistance regarding the latest guidance or the sponsor duties generally, please contact us.
