The Home Office have released an updated guidance for compliance officers regarding pre and post licence sponsor compliance visit and assessments.
Indeed, companies holding or applying for a Sponsorship Licence need to comply with Immigration Rules and HR system requirements.
The Home Office can decide to attend the company’s office at any time before (pre-licence assessment visit) and after (post-licence compliance visit) granting the Sponsorship Licence and conduct a compliance visit and assessments to check if the company meets the requirements and fulfils its duties as a Sponsor.
The main change in this new guidance is the removal of parts of the guidance about making a recommendation.
Other changes reflect the updated Immigration Rules and some minor housekeeping.
From 15 January 2018, compliance officers will no longer make a recommendation (feedback) regarding the licence outcome following a compliance visit. They will conduct and document a thorough assessment of the sponsor’s current state of compliance, gathering supporting evidence.
The caseworker will then use the evidence presented in the report, along with other relevant evidence to make a decision regarding the licence outcome.
The Home Office will not suggest any improvements in its report. They will focus on highlighting each breach.
Employers wishing to retain or hire non-EEA workers need to get fully prepared. 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 and duties as a Sponsor 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.
Since 12 November 2015, applicants who submit their application for consideration via the Premium Service Centre, can only now submit applications online, as the paper application form will be removed from the gov.uk website. The completed online application must be send off to the Home Office afterwards.
The above will also apply to Tier 2 Dependants, the paper form will be removed and substituted by the online service. In respect of Tier 1 and Tier 5 dependants, the paper format application will remain as it was.
The case Mandalia v Secretary of State for the Home Department  UKSC 59 can be pivotal example in regards to whether the Presenting Officer has a duty to apply evidential flexibility or it is just a mere power. In this case, the Court of Appeal said: “power”, however, the Supreme Court said: “a duty”.
From August 2009, evidential flexibility was embraced, which allows applicants to repair the deficit in their evidence or correct minor errors in applications for Tier 1, 2, 4 and 5 main and dependent applicants.
The flexible process instruction falls into 19 steps, four of which relevant to the above mentioned case, which the caseworker has to undertake when there is missing evidence or minor errors in the application:
It was held that the Home Office’s refusal was unlawful as there was not any attempt firstly to invite Mr Mandalia to correct minor error specifically to repair the deficit in his evidence. Therefore, the court should allow this appeal, and annul the refusal of Mr Mandalia’s application.