By Annie Ee – Senior Authorized Affiliate
- Introduction
- Varieties of Modifications in Enterprise Construction
- Reporting Duties for Sponsor Licence Holders
- Penalties of Failing to Report Modifications
- Enterprise Construction Modifications: Full Takeovers and Mergers
- Enterprise Construction Modifications Partial Takeovers and Mergers
- Enterprise Construction Modifications: Modifications in Direct Possession
- Worker Transferred Below TUPE
- Contact Our Immigration Barristers
1. Introduction
Firms holding a sponsor licence who’re going by means of a change in enterprise possession or enterprise construction should pay attention to how the modifications will have an effect on their sponsor licence and the influence on the sponsored migrants.
When you’re granted a sponsor licence, you need to fulfil your sponsor duties akin to reporting duties and record-keeping duties. On this publish, we’ll take a look at the varieties of enterprise construction modifications that may have an effect on your sponsor licence.
2. Varieties of Modifications in Enterprise Construction
A sponsor licence shouldn’t be transferable and beneath are the varieties of enterprise construction modifications which you need to be conscious of:
- Change in direct possession;
- You might be promoting all or a part of the controlling variety of shares within the organisation;
- You might be partly or wholly taken over by one other organisation;
- You might be splitting out to kind new organisations;
3. Reporting Duties for Sponsor Licence Holders
The Degree 1 Person in your organisation should report any of the above modifications by way of your sponsorship administration system (SMS) inside 20 working days of the change happening. The Degree 1 Person on the new sponsored organisation could do the reporting if the Degree 1 Person at your organisation shouldn’t be obtainable because of takeover or merger and adjust to any requests to supply paperwork confirming the modifications.
4. Penalties of Failing to Report Modifications
For those who fail to report the modifications inside the time restrict, your sponsor licence could also be downgraded or revoked. Now we have set out in our publish Sponsor Licence Suspended – What To Do Now what occurs if the sponsor fails to adjust to the sponsor licence duties.
In case your sponsor licence is revoked, you will be unable to sponsor any extra staff and their permission could also be cancelled or shortened.
5. Enterprise Construction Modifications: Full Takeovers and Mergers
New Sponsors
If your organization is taking up or merged with one other organisation and there are sponsored staff shifting to your organisation, you:
- should apply for a brand new licence inside 20 working days if you happen to wouldn’t have a sponsor licence – in our earlier publish Sponsor Licence Refusals: Causes and Solutions we shared ideas for a profitable sponsor licence software;
- should apply to increase the scope of your licence if you happen to wouldn’t have the related licence;
- can login to your SMS and apply for a rise in your CoS allocation if you have already got a sponsor licence;
- should report the modifications by way of SMS of the employees you may have accepted accountability for in case you have a sponsor licence;
- should request to make the earlier sponsor’s licence dormant;
Outdated Sponsors
In case your organisation is totally taken over by one other organisation and your sponsored staff are shifting to this new organisation, you need to report the modifications by way of the SMS inside 20 working days of the change. If any of your sponsored staff are usually not shifting to the brand new sponsor, you need to report it by way of your SMS. For those who want to give up your sponsor licence, this may be finished in your SMS account or finishing the change of circumstances kind if you happen to not have a Degree 1 Person.
6. Enterprise Construction Modifications: Partial Takeovers and Mergers
Outdated Sponsors
For those who not have any sponsored migrants, you need to report the change utilizing the SMS. For those who want to give up your licence, you should use the SMS or full the change of circumstances kind if you happen to not have a Degree 1 Person with SMS entry. For those who want to sponsor any migrants sooner or later after you may have surrendered your licence, you’ll need to use for a brand new licence. For those who want to maintain your sponsor licence, your CoS allocation will likely be lowered to zero.
In case your organisation nonetheless has sponsored staff, you’ll need to report the change, by way of the SMS, of any staff shifting to the brand new organisation inside 20 working days of the change. When you have any sponsored migrants you’re nonetheless using, you do have to proceed to report. Additionally, you will have to report if you might want to amend your CoS allocation.
New Sponsors
The steps to be taken as a brand new sponsor embrace:
- Make a sound software for a sponsor licence inside 20 working days if you don’t have already got a sponsor licence – in case you are a Begin-Up, do seek advice from our earlier publish Securing a Sponsor Licence: A Guide for Start-Ups and New Businesses;
- Apply to extend your CoS allocation utilizing SMS;
- To fulfill your sponsor duties, you need to report the change by way of SMS inside 20 working days and this consists of the employees you may have accepted accountability for;
As a brand new sponsor, you’ll not have the employees’ SMS report. To make a report, you possibly can electronic mail the House Workplace offering the previous sponsor’s identify, licence quantity, particulars of the employees and particulars of every other modifications or related data.
7. Enterprise Construction Modifications: Change in Direct Possession
A change in direct possession will end in your licence being revoked. In case your sponsored staff have moved to a different organisation with a sponsor licence, your licence will likely be made dormant. The change in possession can occur due to a whole sale or sale of shares ensuing within the controlling shares being transferred to a brand new proprietor.
8. Workers Transferred Below TUPE
There are conditions the place the staff could also be protected beneath the Transfer of Undertakings Protection of Employment Regulations 2006 (as amended) (‘TUPE’) and these could possibly be a change in enterprise possession or modifications in service provision. The House Workplace web site units out:
Enterprise transfers means: “This is where a business or part of a business moves from one employer to another.”
Service provision means: “That is when
- a service offered in-house (for instance cleansing, office catering) is awarded to a contractor
- a contract ends and is given to a brand new contractor
- a contract ends and the work is transferred in-house by the previous buyer.”
What occurs to the sponsored staff?
When TUPE is triggered, which means that the phrases and circumstances of the staff’ jobs stay the identical and their jobs are transferred to the brand new firm. If the brand new employer has a sound sponsor licence within the right route, they usually have confirmed that they settle for accountability for the employees and the employees’ duties stay unchanged, there isn’t any want for the employee to make a change of employment software. There may be additionally no want for a brand new CoS to be assigned.
What do the brand new sponsors have to do?
When you have a sponsor licence, you may have the total accountability and this should be confirmed by way of your SMS.
For those who wouldn’t have a sponsor licence, you might want to apply for a sponsor licence or apply to increase the scope of your current sponsor licence inside 20 working days of the transfer happening.
If no software is made inside 20 working days or an software has been made however it’s refused, the permission of the sponsored staff who moved to you could be cancelled.
9. Contact Our Immigration Barristers
For professional recommendation and help in relation to a Sponsor Licence application, contact our immigration barristers in London on 0203 617 9173 or by way of the enquiry kind beneath.
Regularly Requested Questions (FAQ’s)
What occurs to my sponsor licence if my firm undergoes a change in direct possession?
A change in direct possession will end in your licence being revoked. In case your sponsored staff have moved to a different organisation with a sponsor licence, your licence will likely be made dormant.
Do I have to report modifications in my enterprise construction to the House Workplace?
Sure, the Degree 1 Person should report the modifications by way of your sponsorship administration system (SMS) inside 20 working days of the change happening.
What are the results of not reporting modifications in enterprise construction or possession?
For those who fail to report the modifications inside the time restrict, your sponsor licence could also be downgraded or revoked. This could stop you from sponsoring staff and will have an effect on your current sponsored staff’ permission to remain.
Can a sponsor licence be transferred to a brand new proprietor if my enterprise is offered?
No, a sponsor licence shouldn’t be transferable. The brand new proprietor should apply for a brand new sponsor licence if they don’t have already got one.
What steps ought to a brand new sponsor take after a enterprise takeover?
A brand new sponsor should apply for a brand new sponsor licence inside 20 working days, apply to extend the Certificates of Sponsorship (CoS) allocation if wanted, and report the modifications by way of SMS.
What ought to I do if my organisation is partially taken over or merged?
You’ll want to report any sponsored staff shifting to the brand new organisation inside 20 working days and regulate your CoS allocation if mandatory. For those who not have sponsored staff and want to give up your licence, this may be finished by way of SMS or the change of circumstances kind.
What occurs to sponsored staff throughout a enterprise switch beneath TUPE?
If TUPE applies, the employees’ phrases and circumstances stay the identical, and their jobs are transferred to the brand new firm. The brand new employer will need to have a sound sponsor licence and ensure accountability for the employees.
How do I apply for a brand new sponsor licence if my enterprise has been taken over?
You’ll want to submit a sound software for a sponsor licence inside 20 working days of the takeover, utilizing the sponsorship administration system (SMS).
What’s the function of the Degree 1 Person in reporting modifications to the sponsor licence?
The Degree 1 Person is accountable for reporting any modifications in enterprise construction or possession by way of the SMS and complying with requests for paperwork confirming the modifications.
Can I proceed to sponsor staff if my sponsor licence is revoked because of a enterprise change?
No, in case your sponsor licence is revoked, you will be unable to sponsor any extra staff, and the permission of current sponsored staff could also be cancelled or shortened.
Glossary
Sponsor Licence: A allow granted by the House Workplace permitting a UK employer to rent non-UK staff legally.
Sponsorship Administration System (SMS): A web-based system utilized by sponsor licence holders to handle their sponsor duties, together with reporting modifications in enterprise construction or possession.
Degree 1 Person: A person inside a sponsor organisation accountable for managing the sponsor licence by way of the SMS, together with reporting related modifications to the House Workplace.
Certificates of Sponsorship (CoS): A singular reference quantity assigned by a sponsor to a migrant employee, enabling the employee to use for a visa to work within the UK.
Switch of Undertakings (Safety of Employment) Rules 2006 (TUPE): Rules that shield staff’ phrases and circumstances of employment when a enterprise or service provision is transferred to a brand new employer.
Direct Possession: Refers back to the possession construction of an organization, the place modifications can embrace the sale of the corporate or switch of controlling shares to new homeowners.
Takeover: When one firm acquires management over one other firm, both absolutely or partially, affecting the sponsor licence standing and tasks.
Merger: The combining of two or extra firms into a brand new entity, which impacts sponsor licences and the reporting duties of the concerned organisations.
Dormant Licence: A sponsor licence that’s inactive, typically because of enterprise modifications akin to a takeover, the place the brand new entity takes over the sponsorship tasks.
Revocation: The act of the House Workplace withdrawing a sponsor licence, normally because of non-compliance with sponsor duties or failure to report vital enterprise modifications.
Begin-Up: A newly established enterprise, typically within the early phases of operation, which can want to use for a sponsor licence if it intends to rent non-UK staff.
Change of Circumstances Type: A kind utilized by sponsor licence holders to report vital modifications of their enterprise construction or possession to the House Workplace when SMS entry is unavailable.
House Workplace: The UK authorities division accountable for immigration, safety, and legislation and order, which oversees the sponsor licence system.
Sponsored Employee: A non-UK nationwide who’s employed by a UK firm holding a sponsor licence and who has been assigned a Certificates of Sponsorship.
CoS Allocation: The variety of Certificates of Sponsorship {that a} sponsor licence holder is permitted to assign to non-UK staff inside a specified interval.
Extra Assets
UK Authorities: Sponsorship Administration System (SMS)
UK Authorities: Switch of Undertakings (Safety of Employment) Rules 2006 (TUPE)
- Detailed data on TUPE rules and worker rights throughout enterprise transfers.
- TUPE Regulations
House Workplace: Employer Sponsorship
- Tips and insurance policies from the House Workplace concerning employer sponsorship and compliance.
- Employer Sponsorship
ACAS: Understanding TUPE
- Assets and recommendation on managing worker transfers and compliance with TUPE rules.
- Understanding TUPE
UK Authorities: Immigration Guidelines
- The whole set of UK immigration guidelines, together with these associated to sponsorship and expert staff.
- Immigration Rules
UK Authorities: Verify if You Want a UK Visa
CIPD: Employment Regulation
Gov.uk: Enterprise and Self-Employed
