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HR’s Role in Post Brexit Immigration Routes – Sponsorship of Worker and Temporary Workers
Brexit has ended the freedom of movement between the UK and EU and the UK has introduced an immigration system that treats all applicants equally, regardless of where they come from.
After 30 June 2021, the new immigration rules for recruiting people from outside the UK will apply. You will not need to make retrospective checks for existing employees. You’ll also need a sponsor licence to employ EEA and Swiss citizens coming to the UK to work from 1 January 2021.
Anyone you want to recruit from outside the UK, excluding Irish citizens, needs to meet certain requirements and apply for permission first. The requirements are different for each visa.
The main change is that you will need to hold a sponsorship licence to employ most people outside of the UK.
HR’s role in obtaining a sponsors licence
The role of HR in supporting a client or employer to obtain a sponsor licence and remain compliant with Home office requirements is a serious undertaking.
Sponsorship is a privilege not a right. Significant trust is placed in sponsors and the Home Office imposes high standards and is extremely exacting in their requirements. Any role that HR play is key to ensuring that Immigration and wider UK law is complied with and to ensure that the organisation they are supporting behaves in a manner that is conducive to the greater public good.
Expert administration is a real skill and if you are detailed, methodical, diligent and enjoy compliance this is for you. It can be a full or a shared responsibility (with another function like Finance).
Sponsor licence – key personnel
There are clear roles and clear expectations about who does what if an organisation applies for a sponsorship licence. Everyone has access to the Sponsorship Management System (SMS) (with differing permission levels) which is a shared system with the Home Office. The key roles are:
Authorising Officer – a senior appointment who is accountable for ensuring that the compliance duties placed on the organisation by the sponsor licence are met
A Key Contact – this is the main contact point between the organisation and the UKVI (UK Visa’s and Immigration)
Level 1 user(s) – responsible for all day-to-day management of your licence using the SMS
These roles can be filled by the same person or different people.
You can also appoint an optional level 2 user once you have your licence. This is an SMS user with more restricted access than a level 1 user, for example they cannot withdraw a certificate of sponsorship.
Any staff will be checked to make sure they are suitable for these roles. They may not get a licence if anyone involved in sponsorship has an unspent legal conviction, broken the law, failed to pay VAT or other excise duty.
Allocated staff must also mostly be based in UK, not be a contractor or consultant associated with a particular project or have a history of non-compliance with sponsor requirements. All allocated staff must usually be paid members of staff, or office holders.
Role of HR contractors and agency staff
An organisation must have at least one level 1 user who is an employee. They can have other level 1 or level 2 users employed by third-party organisations contracted to provide HR services. The level 2 user can be a temporary member of staff supplied by an agency.
SMS – Key uses
You use the Sponsorship Management System to: Change details of the organisation such as the address, name, details of an existing key contact or authorising officer; View the licence renewal date; View all CoS the organisation has assigned; and Report a worker’s activities in accordance with the sponsorship duties.
Key HR areas
A sponsor licence is granted by the Home Office on condition that a number of compliance duties can be and continue to be met. The Home Office may announce an audit without notice, to obtain evidence that the licence holder can meet or has met these duties.
There are five key areas of compliance.
- Monitoring immigration status – Right to work checks are essential for all employers, whether sponsor licence holders or not. Everyone should be checking and retaining evidence that each employee has the appropriate immigration permission to undertake their particular role and tracking the expiry dates of any employees with time limited immigration permission.
- Maintaining contact details – current and past contact details of sponsored migrants must be recorded accurately.
- Record-keeping – each sponsored worker should have a file (electronic or hardcopy) which contains evidence that they are eligible for sponsorship (such as a CV, degree certificate and/registration certificate) plus payslips, a contract of employment and evidence that a compliant Resident Labour Market Test was undertaken, where one was required.
- Migrant tracking and monitoring – each sponsored worker’s absences and annual leave should be recorded. Any changes in their employment circumstances (for example, a change in job role or salary or if they leave the sponsor) should be reported to the Home Office.
- Recruitment and accreditation – 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 should be kept on file. For example, where the migrant is a doctor, proof of registration with the General Medical Council.
The organisation must have written policies and processes that cover these areas. You may end up having slightly different policies and processes for any employees that are sponsored by you. This is because the Home Office will have different requirements in terms of record keeping and keeping track of migrants.
HOW HR SUPPORTS ORGANISATION
HR systems – to track recruitment, keep meticulous records on sponsored workers/check everything
Recruitment – write detailed job descriptions, manage process, understand skilled occupations (HR is code 1135), keep detailed records of recruitment activity
Ensure compliance with UK Labour market test – Resident Labour Market Test (RLMT) The RLMT was designed by the Home Office to ensure that settled workers in the UK have the opportunity to apply for positions before said positions are offered to migrants
Check workers carry out role that they were hired for – Line Managers may move people without telling you. This is an immigration offence if you don’t notify Home Office!
HR policies and procedures – your sponsored workers may be subject to different policies and procedures with different requirements.
Observe, feedback, report – The organisation has an obligation to monitor anyone that they sponsor to ensure that no immigration rules are breached.
Sponsorship Management System (SMS) – Under the direction of the Authorising Officer, you may allocate Certificates of Sponsorship (CoS) and ensure that the system is kept up to date. This is a very important and critical part of the process.
Under the direction of the Authorising Officer, address any weaknesses in any related processes and keep a record of what you have done.
HOME OFFICE AUDIT
If your organisation is selected for an audit you won’t have much time to prepare! Although it goes slightly against the grain, retaining a hard copy file for all sponsored staff will make things much easier. The standard of record keeping is forensic. Imagine you are proving to a court that you have carried out basic HR tasks. You need actual evidence you have done everything the Home Office requires and must keep them up-to-date. It is vital that any changes to the Authorising Officer or registered company address are immediately reported. If the Home Office receives an e-mail bounce back from the Authorising Officer’s email address because they have left the company, this could mean an automatic revocation.
What can go wrong?
- Expert HR Administration is different from giving immigration advice – don’t do it! It’s an offence.
- Not keeping detailed records and being unable to produce evidence of compliance if requested by UKVI.
- Entering wrong details and bringing someone to the UK unlawfully.
- Losing track of a sponsored worker.
- A Home Office audit can downgrade your status from A to B or remove your licence completely
In the new post Brexit world, sponsoring workers to come to the UK will become something that many companies embrace to ensure they can recruit and retain the talent their business. HR plays a key role in supporting this process and ensuring the organisation retains its license.
Author: Ruth Cornish, HRi