In recent months we have seen instances where UKVI have revoked a sponsor licence with immediate effect, solely on the ground that a Level 1 User has assigned a Certificate of Sponsorship (CoS) to a close relative. It is important that organisations are aware of the rules on assigning a CoS in order to avoid compliance action.
Who can assign a CoS?
The Sponsorship Guidance sets out the responsibilities of those who are responsible for managing the sponsor licence, including a Level 1 User.
A Level 1 User is responsible for the day-to-day management of the sponsor licence. They can perform a number of actions on the Sponsor Management System (SMS), including requesting and assigning a Certificate of Sponsorship to a worker. We have previously explored the role of a Level 1 User.
The Sponsorship Guidance (Part 1: Apply for a licence), states that (subject to certain exceptions):
"SMS users must not assign a CoS to themselves or to a close relative or partner. A close relative or partner is:
- a spouse or civil partner
- an unmarried or a same-sex partner
- a parent or step-parent
- a son or step-son
- a daughter or step-daughter
- a brother, step-brother or half-brother
- a sister, step-sister or half-sister
- a nephew, niece, or cousin
- an aunt or uncle
- a father-in-law, mother-in-law, brother-in-law, sister-in-law, son-in-law or daughter-in-law"
Additionally, paragraph C1.38 of Part 3: Sponsor duties and compliance, of the Sponsorship Guidance, states that a sponsor must:
"...comply with our immigration laws and all parts of the Worker and Temporary Worker sponsor guidance. To do this, you must:...
- not allow a sponsorship management system (SMS) user to assign their own CoS or assign a CoS to someone who is a close relative or partner of theirs...
- disclose (by adding a sponsor note) if you know, or can reasonably be expected to know, that an SMS user has assigned a CoS to a close relative or partner of anyone else within the sponsor organisation"
What happens when a Level 1 user assigns a CoS to a family member?
Where a Level 1 User has assigned a CoS to a close relative, the Home Office have considered this to be a serious failure to comply with the sponsor duties.
Although the Sponsorship Guidance sets out instances where they 'will' revoke a licence, UKVI suspension and revocation letters usually reference a number of breaches of the sponsor duties. Unfortunately for the sponsors in these few cases, they have had their licence revoked with immediate effect.
Organisations are not prohibited to sponsor family members as such. The application may however be subject to closer scrutiny as UKVI may have concerns as to whether the role is genuine.
The consequences of a sponsor licence revocation are severe, affecting not just the employment of sponsored workers but also the reputation and operational capabilities of the sponsor organisation. It is crucial for Level 1 Users to fully understand and adhere to the Sponsorship Guidance to avoid such pitfalls.
Where applicable, a sponsor note should be added where the organisation knows, or can reasonably be expected to know, that an SMS user has assigned a CoS to a close relative or partner of anyone else within the sponsor organisation (if it is classed as a large business).
How our Immigration Solicitors can help
It is important that organisations are familiar with the rules on assigning a CoS, in order to reduce the risk of compliance action. Compliance action can have a significant and costly impact on an organisation and its employees.
Our immigration experts act as Level 1 Users for the majority of our sponsor licence clients. This means that they can update the system as needed for the organisation. They also provide legal advice and guidance on the sponsor duties and sponsor compliance, as well as assigning CoS and preparing visa applications for workers who need to be sponsored.
We specialise in all aspects of sponsor compliance, including sponsor licence revocations and suspensions. We also assist sponsor licence holders with ensuring they remain compliant with their duties as a licenced sponsor in light of the current digitalisation of the immigration system.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.