A report commissioned by an immigration law firm found that a majority of British companies were not aware of the correct rules for sponsoring overseas workers. Consequently, many businesses could face fines, closure or even prison sentences for directors if they fail to comply with the visa rules.
The report found that two-thirds of the businesses surveyed were unaware what documents they needed to keep on file for sponsored overseas workers, and 95 per cent were not reporting all the required changes in circumstances for sponsored workers.
In addition, the report found just 7 per cent of companies were advertising job vacancies correctly when filling a position with a non-EEA citizen
The findings revealed that businesses are not carrying out sufficient internal compliance audits to ensure internal policies, procedures and guidelines follow the required ‘duties’ of a sponsor to ensure they meet the Home Office’s stringent compliance checks.
As a result, the report warned that up to 95 per cent of small and medium-sized businesses risk having their sponsor licence revoked and many could even face closure under strict new provisions of the Immigration Act 2016. Directors risk heavy fines or even a prison sentence.
Employers wishing to retain both EU and non-EEA workers need to get fully prepared ahead of Brexit. In order to do so, the services of an immigration solicitor advising and assisting for Sponsorship Licence applications but also for the compliance with visa rules are now primordial.
If you wish to apply for a Sponsorship Licence or are already a sponsor and want to make sure that you comply with the complex immigration rules, please do not hesitate to contact our immigration team or our senior solicitor, Pam Barar.
On 6th April 2017, The Immigration Skills Charge Regulations 2017 came into force. This new piece of legislation provides that a sponsor, subject to certain exemptions must pay a charge each time it assigns a certificate of sponsorship to a skilled worker.
A sponsor must pay a charge to the Secretary of State each time it assigns a certificate of sponsorship to a skilled worker. Failure to pay the charge to the Secretary of State means that the purported assignment of certificate is invalid whilst the obligation to pay the charge is outstanding.
Additionally, as the Secretary of State can refund or waive part or all the charge, failure to pay the outstanding charges does not prevent the valid assignment of a certificate of sponsorship when the Secretary of State waives part or all the charge.
However, there are certain instances whereby a sponsor is not obligated to pay the charge when assigning a certificate of sponsorship to a skilled worker –
(a) in respect of an occupation coming within any of the following codes in version 5.1 of the Standard Occupational Classification 2010 Index:
(i) 2111 (chemical scientists);
(ii) 2112 (biological scientists and biochemists);
(iii) 2113 (physical scientists);
(iv) 2114 (social and humanities scientists);
(v) 2119 (natural and social science professionals not elsewhere classified);
(vi) 2150 (research and development managers);
(vii) 2311 (higher education teaching professionals);
(b) who is intended to be the subject of an intra-company transfer as a graduate trainee, that being a temporary posting for a period of no more than 12 months, to the United Kingdom branch of a multi-national organisation as part of a structured graduate training programme, which clearly defines progression towards a managerial or specialist role;
(c) in respect of whom the sponsor has already assigned a certificate of sponsorship (“the first certificate”), but only to the extent that any subsequent certificate of sponsorship is assigned in respect of a period of prospective leave which does not exceed the period in respect of which the first certificate was assigned;
(d) who has leave to enter or leave to remain for the purpose of study;
(e) in circumstances where—
(f) that sponsor has already assigned a certificate of sponsorship to that individual (“the first certificate”); but
(g) by virtue of paragraph (d), the sponsor was not obliged to pay the charge when the first certificate was assigned; and
(h) the assignment of any subsequent certificate of sponsorship relates to the same role as the first certificate;
(i) who seeks entry clearance for a period of less than six months.
Changes made following the Migration Advisory Committee review include:
If the worker has been offered the job within 6 months of the milk round beginning, the sponsors from April 2017 will be able to rely on a milk round that finished up to 4 years before assigning a certificate of sponsorship.
The job title – nurse is still on the shortage occupations list, however, the requirements are amended to require a Resident Labour Market Test to be carried out before a nurse is allocation a Certificate of Sponsorship.
Amendments are made if the applicant wishes to switch from Tier 4 to Tier 2 permit, and if the applicant studied at a UK well known body or an institution in receipt of public funding as a higher education body, and to also avert an applicant from depending on a qualification acquired via further additional study.
The Appellant was a citizen of Vietnam, who made an application for further leave to remain under Tier 4 (General) Student visa, which was refused on 9th November 2014 by the Secretary of State for the Home Department. The main ground was on the basis of non-compliance with the maintenance requirements. As according to the Immigration Rules requirements, the Appellant was required to have at least £2,040 during the relevant of 28 consecutive days. However, the Appellant’s bank statements demonstrated a balance of £2,028.32. Due to which, the Appellant’s application for further leave to remain was refused. The Appellant’s appeal to the First-tier Tribunal was successful according to the principle of de “minimis” by giving the following explanation:
– The shortfall was occurred in the Appellant’s bank account by £11.68 during the first 20 days of the 28-day period;
– However, on the 21st day, the balance was reduced by £1.69;
– On the 22nd till 28th days the balance was above the minimum required by £3.31;
Therefore, the Judge’s reasoning was that the non-compliance was so minimum, thus the Secretary of State should have considered as complied with the Immigration Rules. However, the Secretary of State appealed to the Upper-tier Tribunal stating the FtT judge erred in law.
De Minimis Principle
The First-tier Tribunal made its decision based on the following:
– Firstly, the Judge referred to R (Behary) v Secretary of State for the Home Department  EWHC 3575 (Admin) where Tier 4 (General) was refused on the grounds that out of time, was received two days after the expiry of extant leave. Deputy Judge accepted this by applying de minimis principle. However, the Judge rejected this argument on the basis of two grounds: non-compliance with the Immigration Rules cannon be considered minimum and when non-compliance occurred legal certainty principle should be applied by carrying out “bright line”;
– Secondly, in the case of MD (Jamaica) and GE (Jamaica) v SSHD  EWCA Civ 213 the first Appellant was over stayer for two periods within 12 years, of some three weeks and four months’ duration respectively, where the second Appellant was over stayer for ten weeks due to having made a late application, which was eventually successful. However, Dyson LJ dismissed both appeals;
– The final landmark case is Miah and Others v SSHD  EWCA Civ 261, where the Appellant was eligible for Indefinite Leave to Remain as a work permit holder, however, during the qualifying period he had no extant work permit for 2 months. The Appellant argued that “near miss” must be forgiven.
However, Stanley Burton LJ stated that “near miss” is not the same as “de minimis” principle.
Therefore, in this case not complying with the five years’ lawful residence was not de minimis.
The judge dismissed the appeal as there is no near-miss principle applicable to the Immigration Rules.
The Mccloskey concluded that the FtT erred in law as the appellant did not comply with mandatory requirement of the Immigration Rules, which is considered rigid.
The principle de minimis does not apply in applications of the Immigration Rules. The principle is not used in a context where the question is whether a requirement of the Immigration Rules has been observed as both Immigration Rules and the Point Based System clearly states what requirements to be met or points to be obtained. Thus, de minimis is a mere substitute for sliding scale or near miss principles.