Guidance on Sponsorship

Transcription

1 Guidance on Sponsorship (Recruiting and Employing Non-EEA Nationals under Tier 2 of the UK s Points Based System) Human Resources

2 1 Introduction 1.1 These guidance notes set out the requirements in place where the University is seeking to sponsor non-eea nationals under Tier 2 of the UK's Points Based immigration system. 1.2 The University is a recognised sponsor by the UK Border Agency (UKBA). The University has been a sponsor since 2009 when it was awarded an A rating. 1.3 As a sponsor the University has various responsibilities which it must comply with. Failure to comply with these responsibilities can result in the University's status being downgraded, or the loss of its licence altogether, in which case existing sponsored employees would be forced to leave the UK. In addition, non-compliance could result in other penalties, such as fines or criminal liability, and adverse publicity. Finally, failure to comply with these obligations could have a negative impact on the University's standing with UKBA more generally, which might have an impact on its ability to recruit international students. This would have very significant consequences for the University. 1.4 Due to these consequences, compliance with this guidance is mandatory and any failure to comply will be treated as a serious disciplinary offence. Some Abbreviations used in this Guide UK Border Agency (UKBA) European Economic Area (EEA) Sponsorship Management System (SMS) Certificates of Sponsorship (COS) Leave To Remain (LTR) The Resident Labour Market Test (RLMT) Standard Occupational Classification code (SOC code) Points Based System (PBS) 2 What is the Points Based System (PBS)? 2.1 In November 2008, the UK introduced a points based immigration system to replace the work permit and other immigration arrangements which were in place prior to this date. The idea of this system was to provide a simplified and clearer test for whether individuals from outside of the European Economic Area (EEA) could obtain permission to come to the UK. Who does the PBS apply to? 2.2 The PBS applies to migrants from outside the European Economic Area (EEA) who want to enter or stay in the UK to live or work. The countries that make up the EEA are set out below: Austria Belgium Bulgaria Cyprus Czech Republic Denmark Estonia Finland France Germany Greece Hungary Iceland Irish Republic Italy Latvia Liechtenstein* Lithuania Luxembourg Malta Netherlands Norway* Poland Portugal Romania Slovakia Slovenia Spain Sweden Switzerland** UK nationals *These countries do not belong to the EU but are members of the EEA. Therefore, citizens of these countries have the same rights to enter, live and work in the UK as EU citizens. **Switzerland does not belong to the EU or EEA but Swiss citizens have the same rights to enter, live and work in the UK as EU and EEA members. Please note, nationals from the Bulgaria and Romania are part of the EEA but are covered by the Accession Worker Card Scheme and therefore can not come and work in the UK without obtaining advance permission.

3 How does the PBS work? 2.3 The PBS consists of several Tiers which may allow individuals to come to, or remain in, the UK depending on what the individual is seeking to do within the UK (for example, whether they want to work, study or invest). This guidance relates to Tier 2 and to migrants wanting to come to the UK to work. 2.4 In overview, migrants need to pass a points based assessment before they are given permission to enter or remain in the UK; how migrants score points and how many points are required depends on the Tier that the migrant is applying for. 3 Sponsorship under Tier 2 of the PBS An Overview 3.1 Tier 2 of the PBS allows a migrant worker to come to the UK (or to stay in the UK) where they will be carrying out a skilled role in circumstances where there is no settled individual available to undertake the work. 3.2 If the University is considering employing a migrant who will require Tier 2 sponsorship to take up a role with the University, the following key elements will need to be considered. This Guide deals with some of these elements in more detail below, but if further information is required, please contact one of the deisgnated Level 1 users (see below): Skill Level The UK Government has decided that only some roles are suitably skilled to merit sponsorship; roles must meet these minimum requirements; Appropriate Salary The role will need to be paid at the appropriate rate ; the UK Government has set out minimum salary levels for Tier 2 both in general terms and a specific minimum salary rate for each of the skilled roles; Resident Labour Market Test The University will need to explain why it is looking to sponsor a migrant worker to carry out the role in question. Normally, for new hires, this will involve carrying out a Resident Labour Market Test i.e. advertising the role to demonstrate that there are no suitable settled workers can carry it out; Issuing a Certificate of Sponsorship (COS) If these tests can be met, the University will need to issue the individual with a COS; Entry Clearance/Leave to Remain Once the individual has a COS, he/she need to satisfy the eligibility requirements of the relevant Tier, including scoring point for his/her own attributes. If he/she scores the correct number of points he/she will be able to make an application for entry clearance (if they are outside of the UK) or leave to remain (if they are already in the UK). 3.3 Please note that any Tier 2 visa is a specific permission issued by the UKBA for an individual to do a particular role with a particular employer. Where an individual is changing roles or changing employers, they may need to notify UKBA or obtain a new Tier 2 visa before doing so. (See section 10 for more information on changes of employment.) 3.4 Where employees are being sponsored, the University must comply with ongoing duties set out by UKBA. These require the University to keep records and to report specific events to UKBA; these are set out below. Managers of sponsored employees and sponsored employees themselves will receive individual communication explaining the obligations in more detail. 3.5 Where an individual obtains a Tier 2 visa for the first time, the visa will usually be valid for three years. Where an individual is seeking to extend an existing visa, they will normally be granted a visa for a further three years.

4 3.6 For some Tier 2 visa holders, the Government has imposed limits on the length of time which an individual can spend on a Tier 2 visa. This is currently limited to 6 years. After this time, individuals will either need to change into another immigration category or leave the UK. (Please note that if they leave the UK, they will not be able to reapply under Tier 2 for another 12 months.) 4 Key Personnel 4.1 Under the UKBA guidance each sponsor has several key roles: Authorising Officer The Authorising Officer has overall and full responsibility for the activities of all of the users of the Sponsorship Management System (SMS). The Authorising Officer is the Director of Human Resources. Key Contact The Key Contact acts as the point of contact between the sponsor and the UKBA. If the UKBA has queries they will initially communicate with the Key Contact and they are responsible for licence applications and for providing appropriate documentation. The Key Contact is the Head of Employee Relations. Level 1 Users Level 1 Users are responsible for the day to day activities on the SMS. Specific duties include: Requesting additional level 1 and 2 users or removing users Assigning Certificates of Sponsorship (COS) Requesting an increase in the number of COS s Notifying the UKBA of changes to the University s or migrant's details Withdrawing COS s The University's Level 1 users are designated members of the HR Operations Team including the Recruitment Team Leader, the Deputy Head of Operational Services and the HR Business Partners. 5 Tier 2 Sponsorship in Detail Skilled Roles The Codes of Practice 5.1 Not all roles are eligible for sponsorship under Tier 2 of the PBS. The University must always check that a role is sufficiently skilled before considering whether sponsorship is an option. 5.2 To do this, the University must check that the job meets the requirements for the skill level of the job. If the job does not meet the relevant skill level, the University will not be able to issue a COS. 5.3 Generally, the skill level of the role will need to be at "graduate" level i.e. NQF Level 6 for the individual to be eligible for sponsorship under Tier 2. (Please note, it is the work that needs to be at this level). NB: there are specific circumstances where the skill level required may be reduced, for example where an individual is already being sponsored by the University. Please speak to one of the Level 1 users in the Human Resources Operations team if this might apply. 5.4 UKBA publishes a list of the roles that are suitably skilled. These can be found in the Codes of Practice (which include the Standard Occupational Codes (SOC)) for all roles. They are regularly updated and can be found at: Please do not rely on old paper copies, always check the current list on the web site for the latest details. 5.5 The University will need to identify which SOC is appropriate for each role before considering sponsoring an employee under Tier 2.

5 Appropriate Rate The Codes of Practice 5.6 Each Code of Practice sets out a specific minimum salary associated with the role. This is known as the appropriate rate. Each sponsored migrant must be paid at or above 20,000 or the appropriate rate, whichever is higher. 5.7 There are specific rules regarding whether or not allowances can be included when assessing the overall salary. Please contact one of the Level 1 users for more information if appropriate. 5.8 All sponsored employees must be paid into their own bank accounts (which can be either in the UK or overseas). The Resident Labour Market Test (RLMT) 5.9 Before offering a job to a migrant worker, the University will normally have to complete the RLMT. This effectively involves testing the resident labour pool to see whether there are any EEA workers that would be suitable for the role. There are strict requirements that must be met before UKBA will be satisfied that the RLMT has been completed. These requirements are in place to ensure that the University can demonstrate that there has been a genuine attempt to fill the vacancy with a settled worker. If these steps are not taken the University will not be able to sponsor a migrant worker There are a limited number of exemptions and these are set out below. RLMT Requirements 5.11 All jobs must be advertised as set out in: the UKBA guidance; and in line with the requirements of the Codes of Practice Advert contents 5.12 To meet the RLMT any advert must include the following: Job title; Main duties and responsibilities of the role (job description); Location of job; Salary or salary range; Skills, qualifications and experience required; Closing date Advertising methods 5.13 To meet the RLMT all roles must be advertised using: Job Centre Plus; AND One of the other methods set out as being acceptable in the Code of Practice (which may include, in some cases, the University's own web site) All roles need to be advertised for a minimum of 28 calendar days.

6 Please note that Job Centre plus advertising is not a requirement for: Jobs where the salary is 70,000 or more; or Named researchers (Please speak to one of the Level 1 users in the Human Resources Operations team for more information if this might apply); or "PhD Level Roles", but only as defined in the UKBA Guidance. These are roles that fall within certain specific SOC Codes set out by UKBA. (Please note this is not an exception for all roles which require a PhD as part of the qualifications for it; this term has a specific meaning within the UKBA Guidance. Please speak to one of the Level 1 users in the Human Resources Operations team for more information.) In these cases, two other types of advertising (other than Job Centre Plus) are required to meet the RLMT requirements. The Recruitment Process 5.14 In terms of the responses to the advert, you can only sponsor an employee under Tier 2 if you can demonstrate that there are no suitable settled workers to do the role. If the settled worker is able to carry out the role you have advertised, you will not be able to sponsor a migrant worker for the post even if the migrant worker is the most appointable candidate If a settled worker applies for the job but does not have the necessary qualifications, experience or skills, you cannot refuse to employ them unless you specifically requested these qualifications, experience or skills in the job advertisement The only exception to this is if the job falls within one of the PhD Level Roles in this case you can appoint a migrant if they are the most suitable candidate. Evidence required to satisfy the RLMT 5.17 UKBA sets out very strict evidential requirements regarding how employers prove that the RLMT has been met. This evidence must be gathered prior to a COS being generated. Details of what is required is included at Appendix D of the UKBA's Guidance for Sponsors, a copy of which can be found here: Please note that the UKBA requires very specific evidence to prove that the role was advertised correctly and about the applications received in response to the advert (and why the unsuccessful applicants were unsuitable.) If you are unable to present this evidence, the University will not process a COS for the applicant. When does the RLMT not apply? 5.18 Shortage Occupations UKBA publishes a list of the jobs where there are not enough settled workers to fill the available jobs in that occupation. Where a migrant is applying to enter the UK to fill a job on the UKBA s shortage occupation list there is no requirement to conduct the RLMT. You can assign the COS for a job on the shortage occupation list if the migrant is contracted to work for a minimum of 30 hours per week. The current shortage occupation list can be found at: This changes regularly so please do not rely on paper copies which may be out of date Other exemptions The RLMT does not apply to roles where the annual salary is over 150,000. There are other specific exemptions that apply depending on a migrant's existing immigration status. (For example, this may apply to individuals who are currently in Tier 1 or Tier 4 and looking to change into Tier 2, or where an individual is looking to extend an existing Tier 2 visa). Please speak to one of the Level 1 users in the Human Resources Operations team if you think this might apply.

7 6. The Certificate of Sponsorship (COS) 6.1 A COS is a virtual document similar to a database record. 6.2 There are two types of COS, Restricted and Unrestricted. 6.3 Unrestricted COS: In general terms, unrestricted COS are normally used for migrants who are already in the UK when they are making a Tier 2 application. The University has an annual allocation of unrestricted COS. The Level 1 users will be able to tell you whether the University has any unrestricted COS left to allocate at the time when you want to recruit a migrant worker. If none are available, the University can request more from UKBA. 6.4 Restricted COS: In general terms restricted COS are normally used for migrants who are outside the UK when they are making a Tier 2 application. Whenever the University wants to use a restricted COS, it must specifically apply to UKBA for one to be issued. There is a monthly consideration process where these requests are considered. Please note, restricted COS are subject to annual limits. It is very important that the correct type of COS is issued. Please speak to one of the Level 1 users in the Human Resources Operations team regarding the type of COS that is needed in any particular circumstances. 6.5 When a COS is assigned, the Level 1 user is certifying on behalf of the University that all of the relevant immigration requirements have been met. 6.6 The Level 1 user will need to see all of the relevant documents in support of the COS application before a COS will be generated or requested. The manager requesting the COS will need to complete the checklist (and provide the copy documents) set out at Appendix 1 of this Guide. If any information/documents are missing or incomplete or do not meet the requirements, the University will not issue a COS. 6.7 When a COS is assigned, a unique reference number is generated. This must be treated as confidential and kept securely. This will be sent to the migrant. 6.8 COS are valid for three months from their assignment. During the three month period the migrant cannot be issued with a further COS by another sponsor. If the migrant does not use the COS to apply for entry clearance or leave to remain it automatically expires and shows as expired on the SMS system. 6.9 Where the University has carried out the RLMT, a COS must be assigned within 6 months of the date that the role is first advertised. (The only exception which may be relevant to the University to this requirement is where the post being filled is for one of the PhD Level Roles referred to above: in this case the COS must be issued within 12 months of the date that the role is first advertised.) 7. Entry Clearance/Leave to Remain 7.1 Once the migrant has the COS they can apply for entry clearance (if outside the UK) or leave to remain (if they are inside the UK). The fact that a COS has been assigned does not guarantee that the migrant will be given permission to enter or stay, as they must still meet certain requirements for the relevant Tier and category; any application for permission to enter or stay, may still be refused even where the migrant has a COS.

8 7.2 Whether they are successful or not will depend on: Whether they score sufficient points for their attributes; Whether they can provide UKBA with the specific documentary evidence they require to verify the points they are trying to score; and Whether they fall foul of any of the general grounds for refusal. (These might apply because of an applicant's immigration history, for example, if the applicant has previous criminal offences or has tried to use deception to enter the UK). Points Requirements 7.3 Migrants need to score 70 points to be successful in their applications. These are scored as follows: 30 points having a COS 20 points being paid at the appropriate rate 10 points satisfying the maintenance requirements 10 points English language ability Maintenance (Available funds) 7.4 New Tier 2 applicants must be able to show that they have enough money to support themselves and any dependents for the entire length of their stay in the UK, without claiming state benefits (public funds). 7.5 As such, the migrant must be able to demonstrate to UKBA that they have access to funds of at least 900 for themselves personally and 600 each for any dependents, both of which must have been held for a consecutive 90 day period. 7.6 A-rated sponsors can certify maintenance for migrants and their dependents. If a sponsor certifies maintenance for an individual they are confirming that they will maintain and accommodate the migrant (to a level of 900 or more) up to the end of their first month of employment in the UK, if required. If a sponsor certifies maintenance for any dependents they are confirming that they will maintain and accommodate each dependent (to a level of 600 or more) up to the end of their first month of the main applicant's employment in the UK, if required. It is not the University's policy to certify maintenance. 7.7 Individuals looking to extend their stay in Tier 2 usually automatically score these points without needing to demonstrate their funds again. English Language 7.8 New Tier 2 applicants must be able to show that they have sufficient English language ability before their application will be successful. 7.9 This might be satisfied by showing that they are a national of an English speaking country (and there is a specific list of countries that are permitted to meet this requirement), or that they hold a degree taught in English, or that they have passed an English language test at the required level Individuals extending their stay in Tier 2 usually automatically score these points without needing to demonstrate their English language ability again.

9 Advice and support 7.11 Individuals wishing to make entry clearance or leave to remain applications will be expected to seek their own advice in relation to their applications. The University will only provide assistance in relation to such applications in exceptional circumstances. 8 Ongoing Duties Record Keeping 8.1 As an employer, the University has a responsibility to make sure that all of its employees have the right to work in the UK. It therefore keeps proof of this on the personnel files of all of its employees. 8.2 For sponsored employees, the record keeping requirements are even wider and the University is responsible for keeping all of the specific documents set out in the UKBA's Guidance for Sponsors, as set out at 5.15 above. A link to the documents required is included below: The documents listed in this guidance will be retained securely on employee's files within the Human Resources department. Documents will be held for the periods required by the UKBA as per the guidance above. 8.4 Although, the HR Operational Services Team will be responsible for ensuring such documents are retained it is expected that managers and sponsored individuals will co-operate in providing such documents as and when required. 9 Ongoing Duties Reporting 9.1 Sponsors have specific reporting duties in relation to sponsored employees. 9.2 The University must report the following within 10 working days to UKBA: If a sponsored migrant does not attend work on their 1st day. Details reported must include the reason given by the migrant e.g. a missed flight. If a migrant's contract is terminated earlier than indicated on the COS, for example if the migrant resigns or is dismissed. Where possible the sponsor should inform the UKBA of the details of the new employer. If a sponsor stops sponsoring a migrant for any reason. If the migrant moves into an immigration category which does not require a sponsor. If a migrant takes a period of unpaid leave of more than a month. If there are any significant changes to the migrants circumstances for example; promotion, change in job title, change of the core duties of the role (other than those which require a change of employment application - detailed later in section 10). Change in salary from the level stated on the COS, other than annual increments or pay awards. A change of salary from the level stated on the COS due to maternity, paternity or adoption leave or a period of long term sickness that has lasted more than a month. The location at which the migrant is employed changes or the duration of their contract is shortened. The migrant's employment is transferred under TUPE.

10 Any information which suggests that a migrant is breaching their conditions of leave. Details of any third party or intermediary in the UK or overseas that has assisted in the recruitment of the migrant. If sponsored migrant is absent without permission for more than 10 days without permission. This must be reported within 10 days of the 10th day of absence. 9.3 The University must report any significant changes to its business within 28 days. 9.4 The University must pass to the police any information it holds that suggests that the migrant may be engaging in terrorism or other criminal activity. 9.5 Note that sponsored migrants are not permitted to take sabbaticals lasting more than 1 month. In this case, the University must stop sponsoring the migrant and must report this to the UKBA. 9.6 A failure to comply with these duties could result in the University's sponsorship licence being suspended or downgraded or, in serious cases, revoked altogether. In turn, this could result in sponsored employees having their leave curtailed and being forced to leave the UK. 10. Changes of employment 10.1 Where a Tier 2 migrant changes employer they must apply for a new COS with their new sponsor. The only exception is where they are moving to a new sponsor as part of a TUPE transfer. This means that a migrant who currently has a Tier 2 visa to work for another employer can not use the same visa to come and work for the University. Equally, if a migrant leaves the University's employment, they will need a new Tier 2 visa for any new employer before they start work with them Before a sponsored migrant changes their role at the University, careful consideration must be given to the impact this will have on their specific status. This might be relevant, for example, where a sponsored migrant is seeking a promotion or considering applying for a vacancy In some cases changing their role will trigger a notification requirement (where UKBA will need to be informed about the change); in other cases the migrant will not be able to lawfully change roles until a new visa has successfully been obtained (which includes obtaining a new COS) Notification Broadly speaking, if their role remains within the same SOC code as the role for which their visa was originally granted and their new salary is the higher of (i) the salary stated on the COS when they obtained their visa and (ii) the appropriate rate for the new role, the University will only need to notify UKBA that the change is taking place New Tier 2 visa Where the above exception does not apply (i.e. they are changing roles into a different SOC code or their salary doesn't meet the requirements above), a new visa application will be required. In these circumstances the RLMT must normally be met prior to issuing a COS (unless there is an applicable exemption). In this case, the new visa must be successfully granted before they start their new role. As this is a complicated area, please contact one of the Level 1 users in the HR Operations team for more detail. Please always seek advice before changing the role/duties of any sponsored employees.

11 11. Extension applications 11.1 Migrants who enter the UK under Tier 2 can apply for an extension of permission to stay (this is known as further leave to remain) so long as they (and their role) meet the requirements in place at the time These include that: a) The migrant has been assigned a COS for their continued employment in the same role before making an application for an extension to their stay. b) The job continues to be at the appropriate skill level and c) The migrant continues to be paid at the appropriate rate If the RLMT was conducted before the University first sponsored the migrant it does not have to conduct another one. 12. Where should you go for more information? 12.1 If you are considering recruiting a migrant employee for any role, or currently have responsibility for a sponsored employee, and have any questions regarding the sponsorship regime or your obligations as a result of it, please contact one of the Level 1 users within the HR Operations team. 13. Review 13.1 This guidance has been screened to determine its impact on groups which are protected by law using the University s Equality Impact Assessment process. This guidance will be reviewed in two years, or earlier if legislative requirements change. Last Date of Review: June 2013

12 Certificate of Sponsorship Checklist Appendix 1 All information is mandatory Tier and Category Tier 2 Skilled Worker General questions Will the individual be applying for their visa from inside or outside the UK? For those applying from outside of the UK, has the individual held any form of Tier 2 visa in the last 12 months? Are you satisfied that the individual will meet the points required to make a successful Tier 2 application? Personal Information Family or last name First name(s) Other names Nationality Place of birth Country of birth Date of birth Gender Country of residence National Insurance Number Passport or travel document Passport number Issue date Expiry date Place of issue of passport Home address (NB this should be the address from which the migrant intends to make their Tier 2 application) Address City or town County, area, district or province Postcode or Zip code Country

13 Appendix 1 (continued) Work dates Start date End date Does the migrant need multiple entry? (Please note this should only be a "Yes" if the migrant is required to travel in the course of their work. It is not required for travel for domestic and leisure purposes.) Total weekly hours of work Main work address Address line 1: Postcode Other regular work addresses (if any): Migrant s employment Job title Job type Summary of job description Detailed job description, outlining the duties and responsibilities of the post which must include the skills, qualifications and experience required for the post Gross annual pay in pounds Gross allowances in pounds (please give details of each allowance received including the amount and what it is for) Please identify the migrant s SOC Code (Please refer to the UKBA web site for up to date information.) Resident Labour Market Test Was the RLMT carried out? If yes, please include: the dates the job was advertised: where the job was advertised; and any relevant reference numbers including the Jobcentre Plus reference number Yes/No Please ensure two methods of advertising are cited. If not, why not?

14 Appendix 1 (continued) Other information Does the migrant have any dependents? Is the University certifying maintenance for the main applicant? Is the University certifying maintenance for any dependents? Was the employee sourced through an agent? Agent company name: Agent contact last name: Address, including postcode: Documents that need to be seen before granting a COS (Please attach copies where appropriate, managers should see the original documents and send a certified copy with this form.) Copy of the individual's passports showing any stamps giving permission to work in the UK Copy of the migrant s biometric card (if applicable) Evidence of RLMT (as per the requirements of Appendix D). This must include: o o o o copies of the relevant adverts; copies of all applications shortlisted for final interview in the medium they were received (for example CVs, application forms etc); A list of the names and total number of applicants short-listed for final interview; and notes from the final interviews conducted and, for each EEA national who was rejected, an explanation of why they have not been employed. If the RLMT was not completed, please explain why not. Where it was a requirement with the job advert, copies of any qualifications that the migrant holds to confirm skill level, for example degree certificate Copies of any registration/professional accreditation required to do the job in question Print out of relevant Code of Practice pages including the SOC Code which you have used Name of manager completing this form Signature Date AE 7193