Following the implementation of the latest Statement of Changes (HC535), there are several new provisions which shall affect Tier 2 and 5 sponsors.
Many of the changes came into force on 19 November 2015 and we highlight below some which may be relevant to your business to ensure that you have adequate processes in place to meet the new sponsor duties.
Period of prohibited unpaid leave
The new provisions state that unpaid leave (or a reduction in salary below the relevant thresholds) of four weeks or more in total (whether over a single period or more than one period) during any calendar year (1 January to 31 December) is prohibited for sponsored migrants. There is an exception however where the absence is due solely to maternity/paternity/shared parental/adoption leave or long-term sick leave of one calendar month or more during any one period.
As you may have been aware, the Immigration Rules previously prohibited unpaid leave for 30 days or more and therefore the new provisions shorten the permitted period of unpaid leave by two days.
The above provisions apply to all Tier 2 migrants (eg General and Tier 2 (Intra Company Transfer (ICT)), however where a Tier 2 (ICT) migrant has had a reduction in salary which is due to not being physically present in the UK, s/he will be exempt from these unpaid leave provisions. Please let us know if a sponsored migrant wishes to undertake a period of unpaid leave or there is to be a reduction in the salary of a Tier 2 migrant, in order that we may assess this in line with the Immigration Rules before the unpaid leave is taken.
Additional Authorising Officer duties
The Home Office introduced a new recommendation that, as a minimum, the Authorising Officer (AO) checks the Certificates of Sponsorship (CoS) assigned to sponsored migrants on a monthly basis. This is to check the activities of the Sponsor Management System (SMS) users, for whom the AO is responsible.
Where a sponsor wishes to add a new tier(s) to a licence the AO must also approve this action.
It is advised that a paper or electronic record of these checks is retained.
New recordkeeping duties
Additional documentation is now required to be retained by sponsors for each sponsored migrant.
These include references as evidence of the migrant's previous experience (if they are appointed on the basis of this experience), copies of migrants' DBS checks (where it is required for the role), detailed and specific job descriptions, copies of qualifications to evidence the migrants' skill level and where a vacancy has been advertised on the Jobcentre Plus or Jobcentre Online (eg Universal Jobmatch website), the sponsor must keep a screenshot of the advert from the relevant government website containing the specified details which is taken on the day that the vacancy is first advertised.
To find out whether a specific role requires a Disclosure and Barring Service (DBS) check, you should check the Annex in DBS guidance here. Please note that there are several positions within the financial and legal services as well as in ABS companies which require DBS checks.
Other key changes
It has been confirmed that if the Home Office refuses an entry clearance or leave to remain application of a sponsored migrant because it does not consider the role in the UK to be a genuine vacancy, it may suspend the sponsor's licence while it investigates the issue.
The previous concession in the sponsor guidance which allowed sponsors a grace period of 20 working days to apply for a licence after it expired in order to stop the curtailment of their existing sponsor migrants' leave has been removed. Now curtailment action against sponsored migrants under your licence can be taken as soon as the licence expires. Therefore it is crucial that sponsor licences are renewed before the expiry of your licence.