Licensing Under the Points Based System
From 29 February 2008 employers wishing to employ skilled workers and intra company transferees have been able to apply for a licence in anticipation of the Points-Based System's (PBS) implementation in autumn 2008. The licences will be granted by the Border and Immigration Agency (BIA).
Once a licence has been granted a sponsor is then able to issue certificates of sponsorship to those migrants they wish to admit. Migrants will then, as is the case now, have to seek entry clearance before being allowed to enter the UK. It is planned to issue biometric identity cards to all migrants who come to the UK. Employers will be charged with the task of ensuring that the employee's documents are in order. Failure to do so may result in the licence either being revoked or measures put in place via an Action Plan to improve the way in which employers keep their records.
Applications for a licence must be made online. Within 10 working days of the application having been made supporting documents need to be submitted to the BIA. Guidance on supporting documentation is provided in the form of three lists, A to C. List A details the mandatory documents; list B provides for mandatory documents where applications are being made by certain types of organisation in certain sectors; whilst list C details additional supporting documents. The fee paid is determined by the size and/or type of organisation.
The BIA will set a limit on the number of certificates of sponsorship an employer may issue. This will be based upon the employer's indication of how many certificates of sponsorship it expects to issue annually. The BIA plans to monitor this and, in some cases ask an employer to justify its estimate. An employer can request an increase to its limit. Similarly the BIA may also reduce the limit where it considers it appropriate to do so. The BIA will take into account for example the size of the business, its previous track record with the BIA and how long it has been trading.
When considering a licence application the BIA will ask itself three questions:
- Is the applicant a bone fide organisation operating lawfully in the UK?
- Is the applicant trustworthy?
- Is the applicant capable of carrying out its duties as a sponsor?
A prospective sponsor must nominate a Key Contact, Authorising Officer and Level 1 User. The Key Contact will, as the name suggests act as the main point of contact between the BIA and the Employer. The Authorising Officer is responsible for the sponsor licensing application and for ensuring the sponsor meets all its obligations under PBS. The Level 1 User operates the Sponsor's activities on a day to day basis via the BIA's Sponsor Management System.
All licensed sponsors will be required to fulfil duties, some of which are generic whilst others specific. The generic duties are record keeping and reporting. Records must be kept of all sponsored migrant's passports and UK immigration status documents (and, once in place biometric identity cards). Records must also be kept of sponsored migrant's contact details. There is a duty to ensure that these are updated. Sponsors must also report non-attendances, non-compliance and disappearance of sponsored migrants.
This article is intended only as an overview of sponsorship under PBS. It can though be seen that the BIA intend sponsors to take their duties and responsibilities seriously. Measures are to be implemented to ensure that those who do not comply will be downgraded from so-called A-rated sponsors to B-rated sponsors or lose their licence altogether. Civil penalties can also be imposed on employers and, in certain circumstances cases referred for criminal prosecution.
It is important that prospective sponsors are fully aware of the requirements for obtaining a licence and those with a licence of how to keep it. Magrath LLP are fully able to advise and assist those embarking on sponsorship under the Points Based System.