As many licensed sponsors will tell you, the Tier 2 sponsor visa system is strictly controlled by the Home Office. For example, changes in circumstances must be reported by employers via the Sponsor Management System (SMS), including if a worker is no longer sponsored, the size of the business changes, or there is a change of salary or job title. There are also a large number of rules restricting what can and cannot be done. One such rule is that a sponsored employee cannot simply change jobs or employers without applying for a new Tier 2 visa.
The immigration rules state, If a migrant sponsored under the Tier 2 or Tier 5 categories changes employer, where the conditions (rules) of leave allow this, they must make a
new application supported by a CoS from their new sponsor. The exception is if they are moving to a new sponsor with the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) arrangements or similar protection to continue in the same job, due to a takeover, merger or de-merger or other circumstance in which TUPE is triggered.
This confirms that if an employee wishes to move to a completely separate company, assuming their new employer is a licensed sponsor, has completed a resident labour market test, and is able to grant the individual a certificate of sponsorship (CoS), then they will need to apply for a new Tier 2 visa.
Related Article: Read also €˜How would switching company affect my sponsorship for Tier 2 Visa'
If a sponsoring business is part of a merger, takeover, or de-merger, then the Transfer of Undertaking (protection of employment) regulations (also known as TUPE) will typically apply. TUPE protects the jobs of employees if a business changes hand. In this case, if the acquiring company already has a Tier 2 sponsor license, then they will automatically take over responsibility for sponsoring the non-EEA staff from the company which has been purchased. In addition, where TUPE protection applies, employees will not need to apply for a new Tier 2 visa, or be issued with a new CoS.
Any change of ownership, merger, takeover, or de-merger, must be reported by a level 1 user on the Home Office SMS. Once this change has been notified, the Home Office will then request documents to evidence the change being made.
If the acquiring company needs to expand the scope of their license (e.g. if it is for Tier 5 temporary staff only), then they will need to apply to do so. If, however, they have no sponsorship license at all, they will need to apply for a new license. In both cases, the application must be made within 20 days of the sponsored non-EEA employees being moved.
Related Article: Changing Jobs Whilst on Tier 2 Visa
If a sponsoring business is being taken over or merged into another business, then the business being acquired must update their Sponsor Management System SMS to reflect this change, and where necessary surrender their sponsorship license, or reduce their allocation of certificates of sponsorship. If the business is only partially taken over, then the original business may choose to keep their sponsor license on hold rather than surrender it completely - and reduce their CoS allocation to zero. The SMS will need to be updated with the details of the employees being transferred to the new employer. Any employees who will no longer be sponsored will have their leave curtailed by the Home Office.
Likewise, the acquiring company will also need to update their SMS system with the details of any employes they are now taking responsibility for the employment of. This may require the new employer to increase their allocation of certificates of sponsorship, if the number of sponsored employees they have will increase beyond the number permitted under their license.
If the acquiring company does not yet have a sponsor license, but intends to apply for one, the Home Office may allow them to access the old sponsor's SMS in the interim period to ensure any migrant activity can be reported. If this is not possible, then the business acquiring the new sponsored staff will still need to fulfil the reporting duties of a licensed sponsor (even if they are not yet a licensed sponsor). In order to fulfil their reporting duties, they are required to email the Tier 2 and 5 Migrant Reporting Team at Tier2and5MigrantReportingMailbox@homeoffice.gov.uk with the following information:
They will also need to update the Home Office with any changes to this information in order to meet the compliance requirements of a Tier 2 sponsor.
The Home Office takes compliance with sponsor license obligations extremely seriously. Even a single breach can risk the downgrading or revocation of a license. Revocation will mean that sponsored staff members will have their leave curtailed and, as a result, will need to leave the UK. Due to the many rules which apply if a business wishes to transfer sponsored non-EEA staff to another company it is highly recommended that the acquiring business seek immigration law advice to ensure that the transfer is undertaken correctly, any existing license is upgraded as needed, and any new application for a Tier 2 license of sponsorship is completed in a timely and efficient manner. Doing so will ensure that the immigration status of your valued employees is maintained, and your business operation is not adversely affected.
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