Can An Agency Sponsor A Tier 2 Migrant? How Does It Work?
Employment agencies provide a vital service by helping to reduce the burden of sourcing suitable staff members for businesses across the UK. Those employees may be found from the domestic labour supply or internationally. In the case of Tier 2 skilled workers, it is often the case that UK companies have such specific and technical skills requirements that international recruitment is the only way to find suitable candidates.
We are often asked if it is possible for employment agencies to be granted a Tier 2 sponsor license to hire staff from outside of the European Economic Area (EEA). The answer, as with many aspects of immigration law, is that it depends on why the staff are being hired. In this article, we will explain whether agencies can sponsor skilled Tier 2 workers, and for which purposes.
Can An Agency Apply For A Tier 2 Sponsor License?
It is possible for an agency to successfully apply for a Tier 2 sponsor license, but only for their own staff members. The immigration guidance for sponsor license holders states:
“5.6 If you are an employment agency, you can apply for a sponsor licence but only to sponsor migrant workers who will be directly employed by you in connection with the running of your business. You cannot sponsor a migrant if you will then supply them as labour, to another organisation, regardless of any genuine contractual arrangement between the parties involved.
5.7 If you are an employment agency or intermediary and we grant a sponsor licence to you on this basis, but later find that the migrants you are sponsoring have been supplied as labour to another organisation, we will revoke your licence.
5.8 If you are a sponsor that wants to employ a migrant worker who has been supplied to you by an employment agency or an intermediary, you can only assign a certificate of sponsorship to the migrant if you:
• have genuine responsibility for deciding all the duties, functions and
outcomes, or outputs of the job the migrant is doing
• are responsible for agreeing and paying the migrant’s salary”.
This makes it clear that it is not normally possible for an employment agency to use a sponsor license to hire staff to be placed into another organisation. The Home Office says that if they do discover after granting a sponsor license that it is being used to supply labour to another business, the license will be revoked. The immigration rules specifically state in the list of reasons for license revocation, “You are an employment agency or employment business, and we grant a sponsor licence to you on this basis, but later find that a migrant you are sponsoring has been supplied to a third party as labour”.
All of this said, there is an exception that may allow workers who are sponsored by an agency to be supplied as labour to a third-party business to fulfil a specific contract. According to S1.15 of the immigration guidance on sponsoring workers, for this exception to apply, the service or project is provided by the contractor (i.e. agency in this case) must have a specific end date “after which it will have been completed or the service provided will no longer be operated by you or anyone else”. If you are planning to rely on this rule, it is advisable to speak to an Immigration Solicitor who can confirm that doing so will be fully permitted under the terms of your sponsor licence.
How Can An Agency Sponsor An International Worker For Another Business?
Paragraph 5.8 of the above guidance explains how non-EEA workers sourced via an agency should be sponsored. In practice, while an agency can source a member of staff from outside of the EEA, they are not responsible for their sponsorship. Rather it is the organisation for whom the agency has found the staff member that must assign the certificate of sponsorship. This is because it is the employer which ultimately bears the responsibility for adhering to the sponsor license compliance obligations. Any business planning to use an external recruitment agency, whether for a permanent or temporary role, will need to apply for a sponsor licence from the Home Office, and adhere to the compliance requirements in order to retain their license and non-EEA sponsored workers.
Even though the agency is not acting in the role of sponsor, they do need to ensure that they work in synchrony with those responsible within the hiring business for sponsor license compliance. This is because the way a non-EEA worker is hired must adhere to the obligations of the sponsor licence holder. This includes:
- Ensuring that the role being advertised is genuine
- Ensuring the pay, role type, and skill level align with the sponsor license (e.g. if the role is for a sportsperson, then the employer will need a sponsor license which allows them to issue certificates of sponsorship under the Tier 2 (sportsperson) category. Likewise, the role being advertised must be at RQF level 3 – degree level).
- Resident labour market tests (RLMTs) are carried out where needed – this means that the role must have been advertised in the UK for at least one month if it is not on the shortage occupation list.
- Checking that the worker is genuine and not in the UK illegally
- Checks are not carried out on the safeguarding of children (where appropriate)
- Making sure that job descriptions are not exaggerated or incorrect to deliberately make it appear to meet the requirements of the tier and category assigned when it does not
Given their core role in the hiring process, employment agencies play an important part in ensuring that hiring businesses remain in adherence with their sponsor license obligations. By providing incorrect information, or not making a check on recommended candidates, an agency may inadvertently cause a client business to be in breach. For this reason, it is vital that processes are put in place which ensures that employers and agencies work together effectively, in the interests of all parties.
If you represent a business in the UK planning to recruit staff members from outside of the EEA through a third-party intermediary, it is advisable to engage the services of an immigration lawyer who can advise you on the process. Not only will they ensure your organisation remains compliant with immigration law, but they will also be able to assist you with selecting an agency that carries out the necessary processes and checks to ensure you are never inadvertently in breach of the UK’s immigration policies. As we proceed towards 2021, it is likely that external recruitment agencies will play an increasingly vital role in helping UK businesses to replace the supply of labour currently available from within the EU.
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