22 July 2020

New UK Point Based Visa System and Tier 2 Sponsor Licence

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Government has recently announced new Point Based System which includes a route for skilled workers who have a job offer from an approved employer sponsor. This system will come into force on 1st January 2021

From January 2021, the job you’re offered will need to be at a required skill level of RQF3 or above (equivalent to A level). You’ll also need to be able to speak English and be paid the relevant salary threshold by your sponsor. This will either be the general salary threshold of £25,600 or the going rate for your job, whichever is higher.

If you earn less than this – but no less than £20,480 – you may still be able to apply by ‘trading’ points on specific characteristics against your salary. For example, if you have a job offer in a shortage occupation or have a PhD relevant to the job.

There will not be a general route for employers to recruit at or near the minimum wage.

Who can benefit?

If you’re not already a licensed sponsor and you think you’ll want to sponsor migrants through the skilled worker route from January 2021, you can apply any time.

How to Apply for a Tier 2 Licence?

There are approximately 9 different Tier 2 categories but for the purposes of this post we will discuss criteria for Tier 2 (General) only.

This the type of visa route which non-EU workers generally rly upon. From 1st January 2021 even EU citizens must rely upon the same route.

Eligibility and Suitability criteria

Anyone applying for a Tier 2 Licence must meet eligibility and suitability criteria.

Eligibility criteria

The applicant Sponsor needs to provide evidence that business has a lawful presence in the UK and that it is a genuine employer with a genuine vacancy available. Paragraph 7.1 and 7.2 of the guidance states

To confirm that you are eligible for a licence, you must provide the supporting documents listed in Appendix A of the guidance for sponsors and any more documents we request.

7.2 We verify these documents to make sure you are genuine and have an operating or trading presence in the UK. If you have no operating or trading presence in the UK, we will refuse your application. If we find that you have no operating or trading presence in the UK after granting a licence, we will revoke

Please contact our office on 02039098399 for further details on which documents are required to meet this criterion.

Suitability criteria

Paragraph 7.4 of the guidance explains what the suitability criteria is. This is a lot broader and require sponsor to show that they are reliable enough to complete sponsorship duties Home office expects them to complete as a reliable Tier 2 sponsor.

Home office guidance states:

The suitability criteria determine whether we grant or refuse your application, change the rating of an existing licence, or revoke an existing licence. It may also affect the limits and review points we set for certificates of sponsorship (CoS) that you can assign.

  • 7.4 To assess suitability criteria, we look at whether:
    • you have human resource and recruitment systems in place to meet, or continue to meet your sponsor duties – we may judge this by visiting you either before or after your licence is granted we are able to visit and conduct checks to ensure that the sponsor duties are being complied with on an immediate, unannounced basis; this includes checks at any physical addresses where your sponsored employees (would) carry out their employment duties – if access to a third party’s site is deemed necessary by us (either at application stage or later as part of compliance checks), we would need to see evidence of arrangements between you and the third party that would ensure full cooperation by the third party
    • you can offer a genuine vacancy which meets the criteria of the category you are applying to be licensed for; this may mean that if your business involves operating no (or little) physical office space (a ‘virtual business model’), we will consider the type of work a sponsored worker will be doing and where the worker will be carrying out their employment duties – we may wish to see contracts between you and any third party
    • you have an unspent criminal conviction for a relevant offence – Annex 1 and Annex 5 of this guidance have more information on this
    • we have any evidence of previous non-compliance by you

Paragraph 7.5 further states

You must tell us on the covering letter accompanying your submission sheet if any of the following apply to you, under the general definition of ‘you’ or ‘your’, if you:

  • have been suspended or removed from any sponsor register within the last 5 years
  • have any criminal prosecutions pending
  • are aware that an organisation that you have been involved with in a similar role has failed to pay VAT or any other form of excise duty

If you have a criminal prosecution pending, we will put your application on hold pending the outcome unless we have other reasons to refuse it, in which case, we will refuse it without waiting.

Appendix A specifies documents applicant/sponsor to be should submit with its application. Unfortunately, it is not an easy document to read

There are various tables which you must decipher before finalising which documents are applicable to your type of company.

Businesses also need to appoint the following key personals to fulfil certain roles in respect of the sponsor licence

These Key personals are

  • authorising officer –
  • key contact –
  • level 1 user

Our brilliant and experienced Corporate Immigration team specialises in providing bespoke legal services to employers who would like to take benefit of this new Point Based System.

Disclaimer:

The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Connaught Law and authors accept no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Connaught Law. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Connaught Law.

About the Author

Awais Javed
Awais has an extensive experience of advising high net-worth individuals on all types of immigration matters, ranging from investor and entrepreneur visa applications to appeals and judicial reviews in the Immigration Tribunal and the High Court.

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