Business immigration - tips for the unwary

Business immigration - tips for the unwary

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Author: Helen Burgess

For many HR professionals the responsibility for ensuring that their organisation can continue to employ migrant workers falls squarely at their door. This can prove daunting, especially for those with little or no business-immigration experience.

So, what are the key matters to be aware of?

The tips below will help those individuals who are new to the world of business-immigration, as well as seasoned experts, as they highlight a few of the common issues we tend to advise our Tier 2 sponsor clients.

Top tip # 1 - Take the right copies

There are certain prescribed documents and combinations of documents that you must check and copy (usually the entire document) before an individual commences employment to ensure they have the right to be in the UK (these are often referred to as List A and List B documents). One such document is an individual's passport, but you must copy certain pages of the passport and not just the picture page.

Top tip # 2 - Diarise, diarise, diarise

Whichever diary / reminder system you use make sure that where you have an individual whose stay in the UK is limited in time you diarise the date of expiry of their current leave with a reminder several months before. On the reminder date you should them ask them what steps they are taking to ensure that they continue to have the right to work in the UK and request copies of their new documentation before their current visa expires. If they don't obtain a new visa you will need to decide what action to take.

Top tip # 3 - Know your SOC codes

Unless an exception applies, the role a prospective migrant is to carry out should be at the appropriate skill level as set out in the SOC (Standard Occupational Classification) code for the particular role. The job description and salary should be checked to ensure that they are at the correct level as set out in the code. Otherwise, when it comes to appointing someone, you won't be able to sponsor any non-EU national even if they are the best person for the job.

Top tip # 4 - Don't delay!

A sponsor licence is granted for a period of 4 years and UKVI should notify you 3 months before its expiry date and invite you to renew. But what if you forget or if you miss the deadline? This will have potentially significant consequences for the organisation and any sponsored workers as your licence will expire automatically on the scheduled expiry date. Unless you notify UKVI that your licence expired unintentionally, sponsored migrants will then be informed by UKVI that their leave has been curtailed and they will be given 60 days to leave country or find a new sponsor. This is also likely to disrupt the business if such individuals are key employees and it may also mean that you will not be able to reemploy the individual if they have left the country. Swift action to renew is therefore required.

Top tip # 5 - Promote awareness

Within 10 working days of the promotion of a sponsored migrant you will have to inform UKVI via the Sponsorship Management System (SMS - the online system where migrant activity is logged). However, if the promoted role is in a different SOC code this will mean a fresh application will need to be made (potentially involving advertising the role externally for a period of 28 days unless an exception applies). It is therefore important that any Level 1 Users are notified of any migrant worker promotions so that the necessary steps can be taken.

Top tip # 6 - Change your key personnel

So long, farewell, auf weidersen, goodbye.but before you go, please inform the business if you are in the privileged position of being one of the named individuals on the SMS. When you leave the business you should make arrangements to come off the record and the business should appoint a new contact/s. The individual as well as the business should make a note of this and include this in any personnel record so that it alerts you when a named SMS user is leaving the business.

Consequences of not complying

If you fail to comply with any of the above your organisation risks penalties such as fines, losing its licence (and thereby losing potentially key migrant workers), being downgraded and/or being visited by UKVI. There are also certain personal liabilities that may attach to responsible employees.

A final thought.like having your fire escape plan ready you should also think about how you would cope should UKVI come a-calling. Visits are usually notified in advance (although you may not get a lot of notice) but sometimes they may be unannounced. It is therefore worthwhile thinking about it now - in particular:

  • who will meet with UKVI (usually the Authorising Officer and any Level 1 Users)?;
  • where will you accommodate the UKVI official whilst they are visiting (a top tip is to not have them sat in your HR office if that's where you'll need to go to retrieve any documents they request - you don't want to be scrabbling around in front of them!)?;
  • where are the key documents in support of your licence?; and
  • where do you keep evidence that you have satisfied the advertising criteria for various roles?

Please note, this article is not intended to be a substitute for taking specific legal advice in particular circumstances. Please do get in touch if you need specific advice in respect of any of the above.

About the author

contact photo

Helen Burgess

Partner

03700 86 5028

Helen heads the employment team in Nottingham and is well-versed in the specialist area of employment / labour law, advising HR professionals, in-house counsel, directors and managers on human resource and employment law issues. She has particular experience of TUPE advice, tribunals, business immigration, collective and union issues, whistle blowing, settlement agreements & terminations and executive appointment & exits.

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