Frequently Asked Questions

It is clear from our experience of advising clients that many HR professionals still find the system confusing and are not fully aware of their obligations. We set out below answers to the questions that we are commonly asked by our clients:

We are a small business and do not want the costs and administrative burden associated with registering as a sponsor and taking on a migrant. However, we have received an application for a role that we have advertised from an Indian national which makes clear that they will require a permit. Can we actively discourage future applications from migrants?

Until recently, the answer was yes. However in the recent case of Osborne Clarke Services v Purohit UKEAT/0305/08 the Employment Appeal Tribunal held that employers should not take into account whether or not a prospective employee requires a work permit at the date of application and instead should only consider this later in the selection process. To make decisions purely based on ability to work at the outset of the process would be indirectly discriminatory on the grounds of the applicant’s nationality. In this case, Osborne Clarke went on to argue that the discrimination could be objectively justified by the prohibitive cost of sponsoring the migrant and the likelihood of the application being unsuccessful but this argument failed.

We have an employee in the US who visits our UK Company about once every three months. Do we need to sponsor him?

It depends what the employee is doing when he is in the UK. For example, if he is only attending meetings, conferences or arranging or negotiating deals these would be permissible activities under the UK Border Agency guidelines. However, if the employee is doing anything that could be considered permanent work he will require a work permit even if he only visits every three months. It would be prudent to ensure that the visitor carries documents to show that he does not intend to stay in the UK such as a return flight tickets.

We have recently recruited an employee who is sponsored by another company. What do we do?

The work permit is particular to the sponsor. Therefore if the employee’s employment has ended his work permit is no longer valid and he no longer has the right to work in the UK. You should make any offer of employment subject to him establishing that he has the right to work in the UK. You will need to apply to sponsor the employee as soon as possible and ensure you do not employ him until his Tier 2 application is successful. The old employer has an obligation to notify the UK Borders Agency that the employee no longer works for them.

We have acquired a business under TUPE which employs a number of migrant workers, what are our obligations?

Within 28 days of the transfer you are obliged to carry out original document checks in relation to all employees (not just migrants) to ensure they are legally permitted to work. If you do not do this you will be unable to establish the statutory excuse and will be potentially liable to a fine of £10,000 per employee.

In respect of any migrants who were sponsored by the seller, if you are already registered as a sponsor, you must notify the UK Border Agency of the change of sponsorship. If you are not already registered as a sponsor you must apply for sponsorship within 28 days of the transfer.