In this article we focus on your record keeping duties as a Tier 2 licenced sponsor.
All employers have a duty to prevent illegal working and are required to carry out right to work document checks on all potential employees before they commence employment. Such document checks must be retained and recorded in a particular way as set out in our first article in these series; Right to work checks.
In addition, if you are a licenced sponsor, you also have to comply with your sponsorship duties which includes keeping certain documents for each sponsored migrant. This is in addition to keeping all documents provided as part of your application to become a licenced sponsor which must be kept for the duration of your licence.
Why is it so important to comply with your record keeping requirements?
All that time, expense and effort that your organisation has invested into obtaining a sponsorship licence and the sponsoring of each Tier 2 migrant worker may be in vain if you fail to comply with your record keeping requirements.
The Home Office compliance officers carry out checks and may visit you at any time to check that you have complied with your ongoing duties and responsibilities as a licensed sponsor. Part of this check will involve inspecting records and/or systems to ensure your adherence to your record keeping requirements. Failing to comply could result in your licence being revoked, suspended, or downgraded to a B rating and/or a reduction in the number of certificates of sponsorship you are allowed to assign. If your licence is revoked, you will not be able to continue employing and sponsoring any migrant workers. You will no longer have access to a global labour market. There may also be reputational issues for your organisation that follow as well.
If you have broken the rules on illegal working, you may also be issued with a civil penalty of up to £20,000 per illegal worker. You must also be aware that there are other criminal sanctions that may apply. For further information, please see our article on Right to work checks.
In order to comply with your record keeping duties under Tier 2 it is essential that the following documents are retained for every sponsored migrant worker:
- Copy of the migrant's current passport pages showing personal details and any entry/leave stamps or immigration status documents including their period of leave to remain in the UK and their entitlement to work for you as a licensed sponsor. If there are no entry stamps, other evidence such as a travel ticket into the UK should be kept. You must take copies from the original and follow the checks set out in our article on Right to work checks.
- Copy of the migrant's Biometric Residence Permit. Again you must take a copy of both sides from the original.
- Copy of the migrant's National Insurance (NI) Number. This can be found on a number of acceptable documents such as a NI card, a wage slip, a P45, etc.
- The migrant's current and previous contact details (UK address, telephone number, mobile telephone number). The Home Office expects a history of contact information to be kept, not just the migrant's current contact information, therefore it is important that this information is retained as well as kept up to date.
- Where a migrant is under 18, a copy of the letter from the migrant's parents or guardians consenting to the arrangements made with regard to the child's application, travel, reception and care arrangements in the UK.
- A copy of the migrant's Disclosure and Barring Service check where required for the role undertaken by the sponsored migrant.
- The migrant's absence record from work.
- Any other document set out in the relevant code of practice including for example a criminal record certificate where required.
Where you are required to carry out a resident labour market test (or you have said you have done so), the following documents are required to be kept to prove to the Home Office that the advertising requirements have been met:
- A copy of the contents of the advert must include the job title, the location of the job, the main duties and responsibilities of the job including the skills, qualifications and experience needed, an indication of the salary package or salary range, and the closing date for applications.
- If the role was recruited for through a rolling recruitment programme, all documents must clearly show that it was a rolling programme and must indicate the period of the recruitment exercise.
- Where the vacancy was advertised in a national newspaper or journal, you must keep a copy of the job advertisement as it appeared in the given medium, with the title and date of the publication and the closing date for applications.
- For milkrounds, you must keep a letter from each university, on their headed paper, confirming the milkround, the dates it was conducted and method used, for example, presentation and/or interview method.
- Where the vacancy was advertised on the internet, including on your own website (where this is permitted), you must keep a screenshot from the website hosting the advertisement, on the day the vacancy is first advertised, showing the date the vacancy was first advertised which clearly shows all of the following: the name of the website, the contents of the advert, the date and the Uniform Resource Locator (URL); a global address used to locate the vacancy on the internet and the closing date for applications. All of these details are essential. If the website clearly shows the date the vacancy was first advertised, then a screen shot can be taken at any point during the period the vacancy is advertised.
- If any advertisement doesn't show your name as the employer, then an invoice or letter from the newspaper/ journal/ website would need to show it was placed on your behalf.
- Where the vacancy has been advertised through JobCentre Plus online (also known as Universal Jobmatch), you must keep a screen shot from the relevant government website on the day the vacancy is first advertised which clearly shows all of the following: the name and logo of the relevant government website hosting the advert (this can be Universal Jobmatch, GOV.UK, or Direct Gov), the contents of the advert, the vacancy reference number (for Universal Jobmatch vacancies this is the 'Job ID number'), the date the advert was placed, URL for Universal Jobmatch vacancies and this also needs to contain the Job ID number and the closing dates for the application.
- If the job was not advertised through JobCentre Plus or Jobcentre Online because of Stock Exchange disclosure requirements, you must keep a copy of the formal announcement such as a screen shot of the published announcement, made via a regulated information service approved by the Financial Conduct Authority (FCA).
- If you recruit under the Tier 2 (Sportsperson) and/or Tier 5 (Temporary Worker) Creative and Sporting categories in the sports sector, you must keep a copy of the governing body endorsement as evidence of the resident labour market test and any other document set out in the relevant code of practice.
- If you recruit a sponsored researcher under Tier 2, a record of the competitive process must be kept including advertising for a grant, a selection programme, the judging criteria or any other evidence.
- The following documents must be retained following any recruitment process:
# - all applications short listed for final interview, in the format they were received, for example either as emails, CVs, or application forms, etc.;
# - the names and total number of applicants shortlisted for interview; and
# - interview notes of any settled worker who was rejected which shows the reasons why they have not been employed.
For further information on the resident labour market test (RLMT) including how to carry it out, exactly what information needs to be advertised, where and how long for, please refer to our article on Employing non-EEA migrants: do you have a genuine vacancy and the RLMT.
The following documents are required to show the appropriate rate is being paid to the sponsored migrant:
- Copies of the migrant's payslips, showing their name, NI number, tax code, and any allowances paid and deductions made. Payslips must be formal payslips or on headed paper. If the payslips are not on headed paper, or they are online payslips, you, as the employer, must provide a signature and stamp on a printout to authenticate the evidence.
- Evidence of the amount and frequency of all salary payments made to each migrant, showing the transfer of each payment into the migrant's bank account or onto their pre-paid card, e.g. a FOREX card.
- Where the migrant receives allowances as part of their salary package (for example where accommodation is provided), evidence of the value of those allowances is required to be kept unless the contract of employment or payslips clearly show the value of the allowance.
- Copy of the migrant's contract of employment which clearly shows:
# # - the names and signatures of all parties;
# # - the start and end dates of the contract;
# # - details of the job or piece of work the migrant has been contracted to do; and
## - the salary to be paid to the migrant.
- Any other document set out in the relevant code of practice.
The following documents are required to show that the migrant has achieved the appropriate skill level for the post advertised:
- If not provided in the job advert that has been retained, a detailed and specific job description outlining the duties and responsibilities of the role which must include the skills, qualifications and experience required for the role.
- Copies of any qualifications or professional accreditation documents the migrant has been awarded to confirm that they meet the skill level specified in the role advert or where there was no advert, to show the migrant holds the skills required for the job (for example a Masters or a PhD).
- Copies of any registration and/or professional accreditation documents and/or any confirmation letter the migrant is required to have in order to do their job.
- Where appropriate a copy of the sport governing body endorsement specific to the migrant.
There are additional documents required for Tier 4 (General) Student, Tier 4 (Child) Student, or migrants endorsed under Tier 1 (Graduate Entrepreneur). Further information is set out in 'Appendix D: keeping documents guidance for sponsors' which can be found on the Gov.uk website. You should always refer to the most up to date version.
How long should you keep documents?
The documents detailed above can either be kept as paper copies or in an electronic format. There is no prescribed method for storing the documents, but remember you must be able to make them available to compliance officers on request.
All documents must be kept for whichever is the shorter period of either:
- One year from the date you end your sponsorship of the migrant; or
- If the migrant is no longer sponsored by you, the point at which a compliance officer has examined and approved them.
You should note that some of the documents that you must keep as part of your sponsorship duties may also need to be kept for other purposes and for longer periods of time. You should ensure that you meet any other legal requirements for record keeping, such as ones set by another government department.
Licensed sponsors should ensure they are compliant with their recording keeping duties and that they are ready for a Home Office visit and inspection. As a licenced sponsor, an employer should be able to demonstrate it has effective systems and processes in place to comply with its sponsorship duties. It is essential those responsible understand their recording keeping requirements by regularly training relevant staff. It is important to understand the potential consequences of getting it wrong. It may also be helpful to carry out an audit from time to time to ensure that the organisation is complying with its sponsorship duties. Our business immigration team can help with all aspects of compliance, so please speak to your usual contact at Shoosmiths for assistance.
Next time we will be looking at your reporting obligations as a licensed sponsor.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.