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Employers issuing Tier 2 certificate work permits in error risk losing UKBA sponsorship and wrecking migrant worker’s lives | Immigration Matters

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Employers issuing Tier 2 work permits to unqualified migrants

Employers are risking fines and the loss of their Tier 2 sponsorship by issuing ‘Certificates of Employment’ (formerly known as a work permit) to unqualified or unsuitable migrant workers, says Immigration Adviser Evelie Padadac. 

During her consultations with candidates and their employers Evelie has seen widespread misunderstanding of the rules leading to employment certificates being dished out to migrant workers without the proper checks. 

Evelie of Bison UK, which specialises in work and study related visas, said:

“Employers issue the certificates directly to the candidate who then comes to us to arrange the further leave to remain or visa extension.

“However, when looking through the paperwork I frequently find that the candidate does not qualify under the Tier 2 rules.”

When the previous government launched the Points Based System (PBS) in 2008 they handed over responsibility for issuing Tier 2 Certificates/work permits to employers. Previously, Work Permits UK in Sheffield would have checked every work permit application with a fine tooth comb before granting a work permit to an employer. 

But under PBS, once an employer is registered as a Tier 2 Sponsor, they are allocated a set number of certificates to issue directly to migrant workers without checks being made by the UK Border Agency (UKBA). 

The UKBA will carry out inspections on employers, which will be too late to prevent serious blunders as well as breaches in security from occurring. 

Let’s say a Care Home issues a sponsorship certificate for Skilled Care Worker, which falls under the shortage occupation list. In theory, a straightforward case. 

The certificate is given to the migrant worker, currently here on a student visa, who then applies for and receives approval for ‘leave to remain’ (a 58 page ‘FLR’ form) in the United Kingdom from the Home Office leave to remain team. 

There are two distinct separate transactions taking place in the process: 

  • EMPLOYMENT CERTIFICATE (WORK PERMIT) – It is the employer’s responsibility to ensure the migrant is suitability qualified under the immigration rules 
  • LEAVE TO REMAIN (VISA EXTENSION) – It is the Home Office responsibility to check the migrant qualifies for further leave to remain. 

In other words, it would appear that the Home Office or UKBA are not checking the suitability of a migrant worker applicant at the point of issue of an extremely important document (employment certificate/work permit), which forms a vital part of their application to remain in the UK. 

Should it later come to light that the certificate should not have been issued to the worker, for instance because they did not have the required experience, the employer would have been employing the migrant illegally and the migrant will have illegally obtained permission to stay in the UK. 

If this all sounds too easy you might be wondering what controls are in place to prevent errors or abuse of the system? 

Employers can expect a visit, probably unannounced, from the UKBA at which point officers will be checking their files, records and systems. If the experience of Tier 4 sponsors (colleges) is anything to go by employers who make the slightest mistakes can expect to have their sponsorship suspended or revoked.

The migrant workers employment certificate and visa will be cancelled if it is found that a certificate was issued dishonestly and could be cancelled if issued in error (see blow). 

According to Occupation Codes of Practice for Tier 2, sponsors must retain pay records confirming that the individual is earning the appropriate skilled salary. In addition, sponsors must retain the following: 

In England and Northern Ireland

  • References from the individual’s past employer(s) detailing two or more years relevant experience before taking up the post, this experience must not include time spent on a work placement as part of a qualification; and
  • A copy of the individual’s relevant S/NVQ level 2 or equivalent (or above) qualification in care; and
  • Copies of staff rotas showing that the individual has had supervisory responsibilities as described above, whilst working for the sponsor.

Sponsors in England and Northern Ireland must also retain relevant evidence to enable them to justify the following:

  • Why does the job require someone with at least two years previous experience? What elements of the job require this experience and why?
  • Why could the job not be carried out to the required standard by someone with less experience?
  • How would you expect a settled worker to gain this experience before being appointed to the post?

In Scotland

  • A copy of the individual’s certificate of registration with the Scottish Social Services Council; and
  • A Copy of the individual’s relevant S/NVQ level 3 or equivalent (or above) qualification in care; and
  • Copies of staff rotas showing that the individual has had supervisory responsibilities as described above, whilst working for the sponsor.

In Wales

  • Documentary records which show how the sponsor has mapped the functions and responsibilities of the post to the appropriate National Occupational Standards to identify that S/NVQ level 3 is the most relevant qualification for the post; and
  • A copy of the individual’s certificate of registration with the Care Council for Wales; and
  • A Copy of the individual’s relevant S/NVQ level 3 or equivalent (or above) qualification in care.

Sponsors must provide any of the above evidence to the UK Border Agency on request.  

What happens to migrants when the UKBA suspend your licence?

The UK Border Agency website makes this clear:

‘If we are considering action against you that could lead to us withdrawing your licence we will not consider applications from any migrants that you have issued a certificate of sponsorship to until we have made a decision yours status.

‘If a migrant has been given permission to enter the United Kingdom based on a certificate of sponsorship issued by you, but has not yet travelled to the United Kingdom, they will be allowed to enter and start working or studying with the sponsor. However, we advise all migrants to check the status of their sponsor’s licence before they travel and we recommend that migrants do not travel to the United Kingdom if their sponsor’s licence has been suspended.

‘During the time we are making the decision, we will not tell migrants who have been given a certificate of sponsorship by you and are already in the United Kingdom about the suspension.’ 

What happens to migrants if the UKBA withdraw your licence?

The UK Border Agency say:

‘If we withdraw your licence, we will:

  • immediately end the permission to stay in the United Kingdom of any migrants whom we believe were actively involved in any dishonesty by you, for example, if the migrant agreed that you would arrange a non-existent job for them so they could come to the United Kingdom; and
  • reduce the length of the permission to stay in the United Kingdom of any other migrants (those who were not actively involved) to 60 days, to give them a chance to find a new sponsor. If the migrant has less that six months permission to stay left, we will not reduce the length of their permission.

‘If we immediately end the permission to stay, the migrant will have to leave the United Kingdom or face enforced removal.

‘If we reduce the length of the migrant’s permission to stay, they will also have to leave or face enforced removal if, at the end of the 60 days, they have not found a new sponsor.

‘We will take action against any migrant who remains in the United Kingdom after their permission to stay here has expired. This may result in migrants being detained and forcibly removed from the country. Any applications they make to come to the United Kingdom within the next 10 years may also be refused.’

What happens to migrants who have not yet travelled to the United Kingdom when the UKBA withdraw your licence?

The UK Border Agency say:

‘When you have your licence withdrawn, any certificate of sponsorship you have issued will automatically become invalid. This means that any application for permission to enter or stay made on the basis of these certificates of sponsorship will automatically be refused.

‘If the migrant has already been granted permission to enter when we withdraw your licence, the permission to enter will be cancelled (under paragraph 30A (ii) of the immigration rules), if they have not yet travelled to the United Kingdom.

‘If the migrant has travelled to the United Kingdom, they will be refused entry to the country (under paragraph 321(ii) of the immigration rules).’

The message is clear. Employers and migrants need to get it right and take great care when sponsoring Tier 2 migrant workers or face serious consequences. 

Evelie Padadac is an OISC registered immigration adviser with Bison Management UK.

Bison Management UK offers a file checking audit service for employers.

See also:

UK Border Agency announce new Rules for Tier 1 and Tier 2 and other changes to the Immigration Rules

UKBA publish new rules for skilled and highly skilled migrant workers

Fast track your visa with UKBA’s ‘Super Premium’ service

Colleges challenge UK Govenrment’s Tier 4 suspension in Judicial Review

Weekly Immigration News Round up 16 May 2010

Tier 4 students switch to Tier 2 working visa before new rules hit

If you need any immigration advice or help with Studying in the UK, Settlement, Citizenship, Sponsorship, extending Work Permits, Visa or an appeal against a refusal please email:

info@immigrationmatters.co.uk or visit www.immigrationmatters.co.uk

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16 Responses to “Employers issuing Tier 2 certificate work permits in error risk losing UKBA sponsorship and wrecking migrant worker’s lives”
Read them below or add one

  1. Ejaz Hussain says :

    I want to apply ror job as ex Army person of pakistan , plz help me

  2. Tier 2 Rules have changed. Senior Carer sponsorship no longer available.

  3. rajwant says :

    i am looking for tier 2 sponsership as senior carer assisstant in london or out of london .plz let me know it is possible becoz i am holding tier4 visa and doing health and social care 4and 5.please help me and suggest me .thanks

  4. Requirements are on the UKBA website

  5. jonhmaxi says :

    hi’
    my employer is willing to sponsor me from tier 4 to tier 2.. please, can u help me know what the requirements so if possible, please send me the requirements. thank you

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  11. […] take care when issuing Tier 2 Certificates of employment to migrant workers, as many businesses are issuing Tier 2 work permits to unqualified migrants according to an immigration […]

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  15. kabita says :

    HI I AM IN STUDENT VISA NOW.AM I ELIGIBLE TO APPLY TIRE 2 WORK PERMIT VISA?

  16. […] Employers issuing Tier 2 certificate work permits in error risk losing UKBA sponsorship and wrecking… […]

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