There is a great deal of confusion around Tier 2 sponsor licence holders providing non-EEA skilled workers for third-party contracts. The issue is whether sponsors are acting as an employment agency (which is not permitted), or managing workers through contracts held by the company (which is permitted under strict circumstances).
An example of unlawfully using migrants to work for third-parties is whereby a company provides skilled workers, such as tech or construction professionals, to work on projects with which they have no connection. A permitted activity might include where a skilled IT engineer is sent to work in a firm for a specific time-bound project where the sponsored company retains the full control over the outcome and output of the project.
Under the Tier 2 Policy Guidelines, the rules are clear – a sponsored migrant may only work for the employer who has sponsored them:
“39.45 You can only assign a CoS if you have genuine responsibility for deciding all the duties, functions and outcomes or outputs of the job the migrant will be doing. Where the migrant is employed by you to do work for another organisation to fulfil a contractual obligation on your behalf, they must be contracted by you to provide a service or project within a certain period of time. This means a service or project which has a specific end date, after which it will have ended or the service provided will no longer be operated by you or anyone else. They must not be:
agency workers, hired to another organisation to fill a position with them, whether temporary or permanent, regardless of any genuine contract between you and any employment agency or third party (intermediary) who supplies workers to an organisation – the ‘Employment agencies and employment businesses’ section has more information contracted to undertake an ongoing routine role or to provide an ongoing routine service for the third party (intermediary), regardless of the length of any genuine contract between you and another organisation”
Regardless of any circumstances, Tier 2 sponsors must take all proper steps when hiring foreign workers. Sponsors are required to fill only genuine vacancies, ensure that employed are suitable for the position using the Codes of Practice and Standard Occupational Classification (SOC), and adhere to all UKVI requirements for sponsor licence holders. This includes ensuring proper Resident Labour Market Tests (RLMT) are conducted and full records of the advertisement and recruitment procedures are maintained.
The best way to meet your compliance responsibilities is to instruct an experienced immigration lawyer to assist your organisation with obtaining a Sponsor Licence, conducting the RLMT and issuing Certificates of Sponsorship. In addition, an immigration advisor can act as one of your company’s Key Personnel, ensuring Right to Work checks are completed correctly, and the Sponsor Management System is filled in correctly and kept up-to-date with any changes that occur regarding migrant employees.
The Tier 2 sponsor is responsible for maintaining compliance for each worker they hire under all circumstances. In the case of contracting workers with a third party, this means the contract for the work provided is held by the sponsor, and the services provided by the foreign worker are the sponsor’s direct responsibility. As the Sponsor Licence holder, you must maintain all documentation regarding the worker (including attendance and contact information), and ensure there is an end date to the contract upon which the Tier 2 migrant will cease to work on the project.
UK Visas and Immigration (UKVI) regularly sends out compliance officers to conduct announced and unannounced audits. Small companies and businesses in the IT industry appear to be particularly vulnerable to these inspections when it comes to third-party contracts. This is because many Tier 2 (Intra-company Transfer) Certificates of Sponsorship are issued to Indian IT workers who are sent to the UK to work on third-party contracts. The Indian government has repeatedly expressed its disapproval of the UK’s changes to its immigration policies, as they restrict major companies such as Tata Consultancy Services, Infosys and Wipro being able to use the Tier 2 (Intra-company Transfer) route to send skilled workers to Britain to work on major, high-value projects.
When companies do not show that all the above guidelines are being strictly adhered to (in addition to all other sponsor licence requirements), Tier 2 sponsor licences are being suspended and revoked. The consequences of this can be devastating to the company, leading to harsh penalties, reputational damage, loss of foreign workers, and sometimes the closure of the company entirely. Although large multi-nationals have strong HR support to prevent such an event occurring, SMEs are often caught out. This is why instructing an experienced immigration lawyer to help you maintain compliance is a worthwhile investment.
If your company is considering using sponsored workers to carry out work under third-party contracts, you must ensure that careful attention is given to understanding UKVI requirements and establishing HR policies and procedures designed to protect your sponsor licence and skilled workforce.
Keep clear documentation for each sponsored worker, which will help to demonstrate that hiring practices and HR procedures are compliant with current sponsor licence requirements. Along with documentation for individual workers, ensure third-party agreements indicate that you hold the contract, your company is solely responsible for the work, the migrant employees are accountable directly to your organisation, and the contract end date will be honoured.
A Y & J Solicitors provide expert immigration law services in all areas of Tier 2 Sponsor Licences. We work with companies using third-party contracts to ensure they are fully compliant and able to withstand the rigours of a UKVI compliance audit. We’ve won cases in which Tier 2 sponsor licences had been initially revoked, and licences successfully reinstated. For expert help with your immigration law needs, contact us today on +44 20 7404 7933, or email us at [email protected].
Disclaimer: No material/information provided on this website should be construed as legal advice. Readers should seek an appropriate professional advice for their immigration matters.