United Kingdom points based
system sponsorship license process
By Alex Paterson, Managing Partner, Fragomen LLP London.
Researched by Nadia Idries
On 27 November 2008, the UK launched
its new Points Based Immigration System
(PBS) for those seeking permission to work.
It is a major change for UK businesses wishing
to sponsor non-European Economic
Area (non-EEA) nationals.
Companies have spent the last few months reviewing their processes and putting in place additional pre-employment, ongoing checking and monitoring, and cancellation measures to support a Sponsor License application. Without a License, it is no longer possible to sponsor non-EEA nationals to take up employment in the UK.
The increased focus on compliance is an all too familiar theme for businesses grappling with heightened regulation across a raft of areas. Nevertheless, the challenge on the immigration front has come at a difficult time when Human Resources, Mobility and Legal Teams have many competing demands and are typically facing a headcount freeze or reduction, due to the severe economic downturn.
PBS has been developed to provide a simpler, more objective and transparent immigration system by replacing 80+ worker and study entry routes into the UK with a five-tiered points-based system:
- Tier 1: highly-skilled individuals. This tier does not require employer sponsorship and can lead to permanent residency in most cases;
- Tier 2: skilled workers. This tier requires sponsorship and leads to permanent residency;
- Tier 3: low-skilled workers which requires sponsorship and will not lead to permanent residency;
- Tier 4: students. This tier requires sponsorship by a recognised UK academic institution and does not lead to permanent residency;
- Tier 5: temporary workers. This tier is reserved for trainees and youth mobility who will be required to return to their home country. Tier 5 applicants will be sponsored by a government approved UK or international organization and will not be eligible for permanent residency.
Any UK employer wishing to sponsor a non-EEA national under Tier 2 must first be detailed on the Government Sponsorship Register by having applied for a sponsorship license online, which is granted by the UK Border Agency (UKBA). Once an employer has obtained its sponsorship license, it will be the employer (with the support of its legal representative who can issue on an employer’s behalf) who issues a “certificate of sponsorship” (formerly known as the work permit) rather than the UK government.
Once the certificate of sponsorship has been issued, the migrant will have to obtain the relevant entry clearance from a British Diplomatic Post in his/her home country or a country in which s/he has residency rights, before being allowed to enter the UK. Whilst the introduction of a points-based approach may make it easier to determine whether an individual qualifies to enter the UK, the system places far greater burden on UK employers from a compliance perspective.
Stricter measures have been introduced to penalize employers that allow migrant workers to work in the UK without correct immigration permission. Employers will be expected to prove that they undertake appropriate pre-employment checks. UK businesses wishing to hire migrant workers in the UK will need to show that all the conditions set are continuously met in order to retain their status as a Sponsor.
Without such a status, it will not be possible to hire/assign migrant workers. It is crucial, therefore, that employers adhere to statutory and regulatory obligations with regards to any non-EEA national it sponsors. The roll-out of Tier 2 has been challenging. The UK Border Agency has confirmed that the speed of the required launch and the complexity of such paradigm change (the biggest in 45 years) has presented some difficulties. Significant elements of the guidance notes require clarification and there is work to be done on the Sponsor Management System (the government’s web-based tool for processing of applications), to improve functionality.
From a client perspective, there is a sense of waiting with bated breath to see how things work in practice as we move into 2009. The “self-certifying” approach of the Certificate of Sponsorship combined with the off-shore Consular based Points Based application process is a big change. In the meantime Fragomen will continue to support its clients through the “bed-down” process, help to manage expectations and lead the way on strategic lobby efforts to clarify and in some cases amend current Immigration Rules, guidance notes and policy content.
Fragomen is recognized internationally as the leading global immigration services provider and can assist employers with the discharging of their duties under the new PBS. Fragomen professionals take a solutions-driven approach, utilizing legal knowledge and extensive practical experience to provide strategic advice to clients in a wealth of complex situations including the impact of the new PBS, planned expansion of global business into the UK, restructuring of businesses, and the impact on an individual’s planned assignment from a home and host perspective.
Fragomen also has proprietary case management and record-keeper technology which is uniquely placed to meet the obligations of PBS. This technology will provide employers with the opportunity to track cases in real-time and to upload and to store documentation relevant to both the immigration application and ongoing monitoring requirements. It represents, in effect, the enhancement required to meet PBS obligations. In addition, Fragomen’s dedicated PBS Consult Team prides itself on offering a more innovative and incisive approach in supporting clients with all their PBS related needs.
Alex Paterson is the Managing Partner of Fragomen LLP, London which comprises four practice areas including UK Inbound, EMEA Co-ordination, US Consular and Irish Immigration. Fragomen is a single focused global immigration law firm with 34 offices and covering 140 jurisdictions.
For further information please contact our PBS team
on pbs@fragomen.com or +44 (0) 20 3077 5130 or view
our dedicated site https://pbs.fragomen.net or www.fragomen.com
The Wind of Change
By Charlotte Slocombe, US Attorney/Solicitor, Fragomen LLP London.
Researched by Rachel Rosenfeld
Some changes occurring in 2009
on the US immigration front are
predicted to be changes that will
benefit US businesses and trade
globally, which in a time of market
uncertainty could see real business
opportunity. The enlargement
of the Visa Waiver Program
(VWP) countries and the inevitable
increase in business travelers
should encourage entrepreneurs
into the US and trade between
the US and these emerging markets.
The introduction of the Electronic System Travel Authorization, or ESTA, should also increase transparency by determining whether an individual has authorization to travel to the US under the VWP, or if they must obtain the appropriate visa to gain entry.
Skipping Over the B-Visa
Previously, business travelers of the above nationals had to apply for a B-visa, the business/tourist category. Now these nationals can use the VWP to travel on business and more easily set up potential investment and trade. Potentially this will increase E-treaty trader/investor visa applications from these nations, excluding Hungary, which does not have an E-treaty relationship with the US. They may accomplish this by returning back to their home countries and registering their new companies under their respective E-treaties at their local US Embassies.
The E-visa allows these citizens to remain in the United States while they participate in significant trade between the United States and their respective home country, or build and manage a business in which they have invested substantial capital, as long as the respective business conforms to E-visa regulations and visa and immigration status is maintained. With the expansion of the VWP, an increasing number of Treaty Trader and Treaty Investor applications may be submitted in the coming year due to the immense commercial interest these nations have recently shown in the US.
Business and Leisure Tourism in the US to Increase
As a result of a souring world economy, tourism and business has been steadily decreasing. However, new developments such as the expansion of the VWP should inspire confidence in tourists and business travelers, increasing inbound visitors from a myriad of nations.
In addition to the new VWP expansion, there has been recent talk of the possibility of a retirement visa, the so called “Silver Card”, allowing foreign nationals over a certain age and of a high-net-worth to purchase residences and stay in the US without placing substantial assets at risk in an investment, as the E-visa requires. ‘’The flag follows the dollar’’ is a commonly coined phrase, but it may be that this time, policy makers are hoping that the dollar will follow the flag, and inspire foreign spending in the US via tourism, new business opportunities, and perhaps residency.
Contention, Getting in the Way of the EU
As the US opens its borders, the expansion of the VWP has been met with contention and discord, as bilateral accords between individual EU nations and third-party nations undercut and challenge the authority of the 27-nation bloc’s common negotiating stance.
Many supporters of the expansion of the VWP have expressed sentiment that it was time for EU nations to look out for their own best interests despite their support of common European Union efforts. Although not yet confirmed, current EU members such as Bulgaria, Cyprus, Greece, Malta, Poland, and Romania may be the next additions to the VWP. Whether US policy is following US business interests, or commercial growth is following policy, both the population of business visitors and number of business opportunities are expected to grow with the opening of the VWP for current VWP members and from prospective nations as well.
Given the long standing problems with entry to the US under non-immigrant status, these changes can only be seen as a welcome step in the right direction for businesses and the US economy in a particularly difficult time for the world markets. Conversely, we will have to wait to see in the upcoming months the impact the Omnibus Appropriations Act of 2009 will have on US immigration.
For more information, please contact Charlotte Slocombe at cslocombe@fragomen.com, or on +44 (0)20 3077 5250.
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