Business Immigration

UK Sponsorship Licence Guidance

A very useful guidance was given in a recent case of SRI PRATHINIK CONSULTING LIMITED v SSHD EWHC 3204 (Admin), where the IT Consultancy Company was seeking Judicial review of the decision to revoke their Tier 2 Sponsor Licence. The Court confirmed that licensed sponsors play an active and crucial role in support of immigration control. It is unsurprising, therefore, that sponsors are required to comply with guidelines in matters of detailed record-keeping and reporting, and that compliance is monitored by the Home Office.

There are substantial advantages for sponsors in participating in the Tier 2 scheme, but they are not obliged to do so. It has been said that the rules contained in the tier 2 guidance for determining whether applicants are suitable to be sponsors, are in reality conditions of participation, and sponsors seeking the advantages of a licence cannot complain if they are required to adhere to them.

Sponsorship involves a pledge from the sponsor that it accepts all the duties expected when sponsoring the migrant.

There are circumstances when SSHD will revoke the Sponsor licence, for example, if you assign a Tier 2 to a migrant and on that CoS you stated that you have carried out a resident labour market test and the test you carried out did not meet the requirements set out in this Guidance. You must only assign a restricted CoS if you intend to employ the migrant on the conditions stated on the application you made for it or in any Sponsor note added. If SSHD subsequently finds that you gave false information on your application for a restricted CoS they will revoke your Sponsor Licence.

There are also the circumstances when SSHD only may revoke the Sponsor licence, thus giving SSHD some discretion. Examples of such circumstances could be that you fail to provide any documents listed in Appendix D to SSHD, when requested or within the specified time period or you fail to comply with any of your sponsor duties.Even where there are discretionary grounds for revocation of a licence, revocation can be expected in all but “exceptional circumstances”. The threshold of “exceptional circumstances” is a very high one.

It is important for sponsors to remember the following principles that are derived from the recent case law:

(1) The essence of the system is that the Secretary of State imposes “a high degree of trust” in the sponsors granted licences in implementing and policing immigration policy in respect of migrants to whom it grants a Certificate of Sponsorship.

(2) The authority to grant a Certificate is a privilege which carries great responsibility: the sponsor is expected to carry out its responsibilities “with all the rigour and vigilance of the immigration control authorities”.

(3) The Sponsor “must maintain its own records with assiduity”.

(4) There is no need for SSHD to wait until there has been a breach of immigration control caused by the acts or omissions of the Sponsor before suspending or revoking the sponsorship, but it can, and indeed should, take such steps if it has reasonable grounds for suspecting that a breach of immigration control might occur.

(5) The Secretary of State is entitled to maintain a fairly high index of suspicion and a ‘light trigger’ in deciding when and with what level of firmness she should act.

The importance of proper record-keeping and the ability on request to produce documentary evidence of compliance with the relevant procedure is not just obvious but in any event clearly spelled out in the Guidance. It was said that that the grant of sponsor status is a fragile gift, constant vigilance about compliance is a minimum standard required for such sponsors. Licence-holders are expected to fully familiarise themselves with all duties and obligations under the scheme on an ongoing basis and ensure strict compliance with such duties.

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