In recent weeks we have noticed that employers who hold sponsor licences and employ migrant workers are not correctly tracking their employee visa expiry dates as they should.
Failure to monitor your employee visa expiry can have several negative effects for the employee, and mainly for your business. It is therefore essential that you are aware when your employees’ visas are expiring so you can take the necessary action.
As a registered sponsor it is your responsibility to make note of when one or several of your employees’ right to work in the UK is coming to an end. Noting employee visa expiry dates does not mean a few weeks before a visa is due to end but we advise at least 4 months before their leave in the UK expires.
Monitoring employees visa expiry dates does not require a complicated and complex procedures, but can be as simple as alerts being set up on your emails, or working with your immigration provider to put systems in place.
Many employers place faith in the fact that their employees will remind them before their visas are due to expire. In some instances this is true, however if an employee is aware of circumstances which may affect their extension or switching their type of leave, then they may hesitate to alert imminent expiry until the last minute, meaning a few weeks before their visas ends. Sometimes, this does not leave enough time to remedy the situation and can result in the employee having to leave the UK.
We recently had a situation whereby the Human Resources department of a company was not monitoring their employee visa expiry dates; the foreign worker in question had spent 5 years in the UK and would have qualified for Indefinite Leave to Remain.
The employee approached their HR about 5 weeks before the visa expired and HR contacted us to assist with the application. By the time we became involved there was only 3 weeks remaining before the employee visa expiry. After carrying out an assessment, it turned out the person knew that the amount of time they spent outside the UK for purposes of settlement exceeded the allowance set out by UK Visas and Immigration and their application would not be straight forward.
The only solution left was to extend the employee’s visa for a further 11 months which would take them to the maximum time allowed in the UK under the type of visa they were on. However, there were more hurdles as the company did not have any certificates of sponsorship remaining and the person’s job and salary had changed while the UK Visas and Immigration had not been notified of it.
Luckily we were able to rectify the situation quickly and able to submit the application before the visa expired.
However, this came close to the company nearly losing a key employee; this would have resulted in financial losses and extra costs for the business as the role this person was carrying out was very niche. Not only this, but had the company been audited by UKVI they would have been found in breach of failing to comply with their duties as a sponsor and could have possibly faced having their sponsor licence revoked, leaving them unable to sponsor migrant workers, or the Licence being downgraded.
It is very important to note that if you are the Authorising Officer named on a company’s Sponsor Licence you are aware of all duties because if anything goes awry, the onus is initially on you.
Most employers who employ foreign workers will be aware that after 5 years of continuous employment the migrant will qualify for Indefinite Leave to Remain in the UK, however applying for ILR is not so straightforward. There are a number of eligibility requirements which need to be met, tests that need to be take and a month or two is sometimes just not enough to prepare and submit the application if there are hurdles to overcome.
As an employer please note that if you have an employee who qualifies for Indefinite Leave to Remain it can benefit you if they apply as they will not require further visa extensions and they will be free of immigration restrictions.
Ensuring applications are made in a timely manner avoids complications for the business and the employee. The maximum time a Tier 2 (General) migrant can spend in the UK is 6 years, if they do not make their necessary extension application in time this will result in them having to leave the UK and being subject to the 12 month cooling off period, whereby they will not be able to re-enter the UK under a Tier 2 category during this time. If they do apply for a new visa after 12 months their time which counts towards settlement (i.e. Indefinite Leave to Remain) will start again from the beginning; This results in costly applications and wasted time for both the employer and the employee.
As an employer if you feel that you are not sure of your responsibilities of being a registered sponsor, then contact us on 020 7494 0118 or via info@davidsonmorris.com. We can attend to your premises, carry out sufficient checks and also assist with implementing systems for you. We have a team of experienced staff to help you deal with your responsibilities as a sponsor.
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
