The sponsor licensing scheme (sponsoring migrant workers under the points based system) was recently challenged in the Supreme Court and was found to be lawful by that court. Although this may be a blow for employers and education institutions wishing to sponsor migrants from outside the UK and EEA, it provides a useful insight into the legality of the sponsor licensing scheme and may open the door for future claims. Commentators have observed that future challenges may render the sponsorship scheme redundant and the ‘work permit’ scheme which was abolished in 2008 could be reintroduced in the future.
UK Supreme Court on the Sponsor Licence scheme
IIn the case of R (on the application of New London College Ltd) v Secretary of State for the Home Department , the court declared that the mandatory requirement of obtaining a sponsor licence including the sponsor guidance is in fact lawful. However the leading Judge Lord Sumption did comment on the complexity of the guidance and agreed that:
‘The Sponsor Guidance is a large and detailed document issued on behalf of the Secretary of State, which may be amended at any time and has in fact been amended with bewildering frequency.’
The case highlighted the inadequacy of the UK Border Agency in dealing with the sponsorship scheme and has provided clarity for many employers and education institutions. The judgement has been welcomed by many in the immigration legal field as it provides a well deserved criticism of the rules and regulations introduced by the UKBA which are becoming increasingly pedantic. The court has recognised that the current immigration framework is antiquated:
‘The Immigration Act 1971 is now more than forty years old, and it has not aged well. It is widely acknowledged to be ill-adapted to the mounting scale and complexity of the problems associated with immigration control. The present appeals are a striking illustration of the difficulties’.
Current UKBA Procedure for Sponsors
Currently employers and education institutions wishing to employ or offer students courses to non UK and EEA migrants must register with the UK Border Agency as ‘sponsors’ under the Tier 2 and Tier 4 Points Based System scheme. This is a lengthy and complex procedure in which the sponsor must register with the UKBA and obtain a sponsorship licence which enables them to issue Certificates of Sponsorship or Certificates of Acceptance.
The Future for Tier 2 and Tier 4 Sponsors
The judgement has also been welcomed by business and education institutions who view this as opening the door for future claims. The courts have recently criticised the UKBA for their intransigent approach to family applications and many view this judgement as an attempt to weaken the UKBA’s robust approach to controlling the employment and education of migrants.
Instructing Solicitors for a Tier 2 UK Sponsor Licence
Qualified experienced immigration solicitors can help with applications for a sponsorship licence and work as follows to ensure success:
- A consultation with a qualified practising solicitor or barrister at our Middle Temple, London chambers;
- A legal review of your circumstances to ensure success in your Sponsor Licence Application;
- Provision of the UKBA same day service PEO appointment if required;
- Professional error free completion of all the UKBA application forms needed;
- Allocation of a UK Sponsor Licence specialist Solicitor or Barrister;
- Aiding you in compiling all documents needed to support an application for a Sponsor Licence;
- Regular updates from your legal team, keeping you informed of the progress of your Sponsor Licence application;
- Immediate notification once a decision has been reached;
- Addition value in helping newly employed foreign nationals apply for a UK Certificate of Sponsorship (ie a UKBA Work Permit); and
- The reassurance of instructing qualified practising lawyers and not OISC caseworkers.
If you would like more information on obtaining a Tier 2 UK sponsorship licence or if you are a migrant with a certificate of sponsorship, feel free to contact us for professional and expert legal advice on your matter.