An issue has come to our attention which is of great importance for all Tier 2 Sponsors. We know that we have blogged several times before about the importance of ensuring your HR systems are compliant, and have talked about what happens at a UKBA audit.
But we have handled several cases recently which suggest that employers are being caught out by the small things and a failure to understand the importance of all immigration requirements, even those that seem almost trivial in nature. It is vital to understand your duties as a Tier 2 Sponsor and the proper procedures which must be followed.
Feeling generous? Check before you offer a raise!
One of the conditions that attaches to a Tier 2 (General) visa is that the foreign national cannot undertake employment in the UK, other than working for his or her sponsor in the role recorded on their Certificate of Sponsorship (COS).
If Sponsors of Tier 2 migrants wish to offer their foreign employees a pay rise or a promotion, they need to look at the immigration requirements very carefully before doing so. If it is just an incremental pay rise in line with company policy, you do not need to notify the UKBA of this. However, if the pay rise is a significant increase or a one-off, you must report this as a significant change of circumstances on the Sponsor Management System (SMS). Failure to do so could well create issues when the UKBA carry out an audit.
It is not only pay rises that must be reported. Sponsors have a duty to report changes to a Tier 2 migrant’s employment including delayed work start dates or a new work address. These must all be reported via the SMS and then the submitted report saved on the migrant’s file, to ensure full compliance with the rules.
The process is slightly different for Work Permit holders, who will not have a COS. If during the validity of a work permit you wish to amend the work permit holder’s personal details or make other minor changes such as when both employee and their role move location, you must do so by completing a Notification of a Technical Change form.
And the requirements don’t stop there. If you wish to promote a Tier 2 migrant currently employed in your company to another role, you need to think very carefully about whether a Change of Employment application is required.
Change of Employment applications are necessary when there will be a change to the migrant’s core duties which means they change jobs to a different Standard Occupational Classification (SOC) code from the one on their original COS. They are also necessary when the migrant will be changing jobs and staying on the same SOC code but will receive a lower salary than originally, as well as in other situations. A migrant worker will of course have to make an application of this kind should they decide to change employer.
It is absolutely imperative that you lodge the Change of Employment application before the migrant worker starts their new role and is paid their new salary. A common mistake is for employers to offer the migrant a promotion, start paying them the higher salary and then a few weeks later start to wonder whether they shouldn’t have lodged some form of application first. This has the potential to cause big problems when the UKBA carry out an audit as it is clear non-compliance with the rules.
Do you need to advertise?
Quite often, the Change of Employment application will involve the Sponsor having to complete the Resident Labour Market Test (RLMT) and advertise the new role for 28 days, before the application can be submitted for consideration. It is important to note that the RLMT must be carried out and the application must then be approved before any changes to the migrant’s current core duties and salary can take effect.
The RLMT is also causing problems for Sponsors due to a lack of full understanding of the requirements. The advertisement itself must contain certain details such as the main duties and responsibilities of the job, the location of the job and required skills and qualifications. But it is the record keeping requirements that seem to be catching more employers out. You must take a screen shot from the website hosting the advertisement, on the day the vacancy is first advertised, which clearly captures specific details including the name of the website, the date and the URL. Failure to keep these records on file in the format specified by the UKBA could again result in failing a UKBA audit at a later date.
In summary, employers should always bear in mind that although your own internal systems and records may be up-to-date and comprehensive, it is vitally important that the UKBA is duly notified of any significant changes to a migrant’s circumstances.
Also bear in mind that in some cases, you will need to ensure you have gained the UKBA’s approval prior to these changes taking place. Remember that what you may consider insignificant can later result in disproportionately severe consequences if the change is one that should have been reported. This is particularly so in the case of large employers with high numbers of migrant staff, where incidents of non-compliance with sponsor reporting and record-keeping duties may take place on a larger scale (albeit inadvertently) and therefore appear more prevalent.
We advise you always to consider each change in the context of workers’ individual circumstances and immigration history and, where uncertain, it is worthwhile checking the requirements again or seeking independent advice.
Please leave your comments below or contact us for any queries you have relating to this blog.