In this second of two articles I'm going to share with you, as employers of sponsored migrant workers, five more pearls of wisdom that may have passed you by or that may just serve as a useful reminder to you.
Pearl 6 - Have you had a judgment against you in a Tribunal? If so, this finding could impact your licence
One of the conditions of being able to hold a licence is that as an employer, you comply with UK employment law: para 15.12 of the guidance for sponsors: https://www.gov.uk/government/publications/sponsor-a-tier-2-or-5-worker-guidance-for-employers
A discrimination judgment, a finding that your organisation has failed to pay the National Minimum Wage, a decision that you have failed to pay the correct holiday pay, etc. may impact your ability to retain your licence. It is therefore worth factoring in to any discussions regarding whether to settle a claim so that you do not inadvertently fall foul of this obligation.
Pearl 7 - As the Immigration Skills Charge ('ISC') is payable in advance, you may wish to reduce the length of the migrant's initial Certificate of Sponsorship ('CoS')
The ISC was introduced in April 2017. In general, it is payable when a sponsor assigns a CoS to either a Tier 2 (General) or (Intra-Company Transfer) Migrant and the migrant will be applying for leave to enter the UK for 6 months or more. The charge is still payable for leave to remain applications (i.e. extensions) when the migrant will be applying for less than 6 months. The current charge is £1,000 per annum so if you assign a 3-year CoS it will cost you £3,000. You will be able to recover some of that cost if the worker doesn't work out and you terminate employment early, for example. However, the refund will take time (at least 90 days) and given that the Immigration Health Surcharge refunds have been delayed a refund is unlikely to be swift. You could therefore request a one or two year CoS and then request a further CoS if the employee proves suitable which will potentially help your cash flow. The cost of a CoS is currently £199 so much less than the ISC.
Pearl 8 - Beware of Standard Occupational Classification ('SOC') code 3545
The SOC code is used to assess the correct skill level and appropriate salary level for specific job roles. Employers are required to select the SOC code that most closely matches the job description they are looking to sponsor a migrant worker for in order to assign a CoS. It is always advisable to look at the SOC code at the outset and make sure the job advert reflects the SOC code. This will involve HR speaking to managers to understand exactly what the role entails.
SOC code 3545 is for sales accounts and business development managers and is often seen by employers as the catch all code when a role doesn't neatly fit within any other code. However, UKVI has become quite tough on this code as they believe it has been abused in the past. That isn't to say that this code cannot be used if it is the most appropriate but you would be well advised to do so if possible. If you are in any doubt as to which SOC code to use we can help you pin down the applicable code.
Pearl 9 - Amend your due diligence process when acquiring a business or company
If you are involved in a transaction where your organisation is acquiring another you should ask for certain information related to all sponsored migrant workers. This will include job adverts placed when the role was first advertised (to ensure the adverts met the requirements), recruitment records (which illustrate that the migrant was the best person for the job), personnel records (to show that the seller complied with its record keeping and reporting duties), etc. This is important in respect of all types of acquisitions, including TUPE acquisitions as even though you would not be responsible for any of the transferor's/seller's breaches, if you discover any issues after acquisition you will have to deal with them and potentially report to UKVI.
Pearl 10 - Before you renew your licence or before an announced UKVI visit, audit your procedures, policies and paperwork to ensure your house is in order
Renewal of your licence is the perfect opportunity to re check everything to make sure that you have up to date and compliant policies in place, that they are rigorously followed and that all migrant workers' information and records are up to date. If you spot anything you can then remedy it or if necessary, report any issues to UKVI. If you have notice of a visit from UKVI you can do the same. Reporting any issues to UKVI before they spot them will go a long way in helping you renew or retain your licence, especially where you have a thorough action plan to remedy the issue (or even better, you have remedied it already) and prevent any future occurrences.
This concludes my two-part pearls of wisdom series on the SMS. I hope you found it useful. If so, and if you would like us to cover any other business-immigration topics, please let me know.