The top three immigration issues affecting charities

Many charities are now registered sponsors for immigration purposes. This means that not only is a charity able to employ overseas nationals where they are unable to recruit in the UK, but they can also transfer employees within their organisation from offices outside the UK (known as intra-company transfers). Many charities will also choose to sponsor temporary workers who may want to undertake unpaid work for their charity. UK Visas and Immigration (known as UKVI) are the department of the Home Office that deal with all visa issues.

In our experience, the three most common immigration issues that arise for charities are licenses, visas and compliance. Below we consider some of the key points to note.

Sponsorship Licences

If you have decided that you want to employ someone from overseas, or possibly transfer a staff member from one of your overseas offices, you will need a license. The sponsorship license must be applied for online. The Home Office suggests that the application takes 20-30 minutes. In our experience the ground work that needs to be done before this stage can take a few hours.

The application process for obtaining a license is not too arduous. However the evidence that needs to be submitted to support the application is complex. You will need to ensure that all documentation is submitted promptly after making the online submission. Applications can take a number of weeks to be decided.

Organisations can often overlook their sponsorship license if they merge, are taken over or expand. If an organisation is a sponsor, and changes of this nature take place, the licence may be affected. The sponsor will need to determine if the change can be reported through the Sponsor Management System or whether a new licence must be applied for.

Similarly if a charity becomes a CIO, a new organisation is being formed. Even if the purpose of both organisations is virtually identical, and all the activities of the trust will be taken over by the new CIO, a new Licence will be required, as it is not possible to transfer a Sponsor Licence to a new entity.

Visas

If you have tried to recruit unsuccessfully within the UK for a particular role, or you have overseas volunteers who are interested in volunteering for your charity, you may have come across the points based system to obtain a visa.

In order for a worker to apply for a visa, the sponsor must first issue a certificate of sponsorship. A sponsor must assign a certificate of sponsorship to each overseas worker they wish to employ. The certificate of sponsorship is simply an electronic record, and is not a physical document. Once the certificate has been issued, the sponsor receives the certificate of sponsorship Each certificate has its own number which a worker can use to apply for a visa. There are two types of certificate of sponsorship – restricted and unrestricted.

Unrestricted certificates of sponsorship are generally for workers already in the UK and those workers who earn more than £159,600. Restricted certificates of sponsorships are for workers who earn less than this threshold, applicants who may be switching from certain categories, as well as workers who are outside of the UK. Each year there is a limit of 20,700 restricted certificates of sponsorship.

Sponsors applications for restricted certificates of sponsorship should be received by the Home Office no later than the 5th of each month and are then considered on the next working day after the 10th of the month.

Currently there is great demand for restricted certificates of sponsorship. Each application is considered and assessed in accordance with Appendix A of the Immigration Rules. Points are awarded to each application. The points scored depend on the particular attributes of the application in question. Thereafter the Home Office will determine which are successful depending on the demand; if the demand is great in one given month, the points needed to be successful will be higher. As salary is a significant factor in the acquisition of points, this does mean that lower paid positions are less likely to receive restricted certificates of sponsorship when demand for the certificates is high.

It is important to note that if a position is a listed as a shortage occupation, the application is likely to succeed as a large number of points are allocated to positions on the shortage occupation list.

Compliance

Once a sponsor has obtained their licence, they must ensure that they are fully compliant with UKVI requirements. There are a number of duties placed on sponsors, relating to reporting and record keeping reporting, compliance and cooperating with UKVI, in order to retain your licence. A sponsorship licence runs for a period of four years.

The sponsor management system is the online tool in which the sponsor can comply with most of their duties. A sponsor is required to appoint a number of key personnel to ensure that they remain compliant. The Authorising officer is the person with overall responsibility for recruitment within the organisation and will have the overall responsibility for compliance. The level 1 user is required to undertake the day to day management of the system. The key contact is the person who has the direct contact with the UKVI. Each of these roles must be filled by a named person, and the Sponsor Management system must be accessed regularly.

A sponsor must ensure that they are compliant with record keeping duties – this means that they must keep a copy of the sponsored worker’s passport, immigration status document and national insurance details. The sponsored worker’s details need to be up to date and recorded. A copy of the worker’s biometric residence permit should also be taken and the expiry date diarised. There are also a number of reporting duties placed on sponsors. If a sponsored worker is absent from work for more than ten working days without permission, the sponsor must report this through the Sponsor Management System.

It is essential that these duties are not overlooked as failure to comply could lead to the licence being downgraded or withdrawn. If an overseas worker is employed unlawfully, a fine of up to £20,000 may be incurred.

As a sponsor you may receive a site visit at any time by UKVI. A site visit usually involves the consideration of records, to ensure compliance. Stone King offers an audit service, undertaking a site visit to check all systems are in place.

Should you need more advice or support in relation to any of the above, or any aspect of immigration law, please do not hesitate to contact our immigration team.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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