The “Transfer of Undertakings Regulations” known as TUPE exist to protect employee rights under new management as the workforce is transferred along with the company. The rules governing TUPE are notoriously convoluted and the issue of immigration further complicates matters. This article is intended to be a brief introduction to TUPE transfers and migrant workers, the various issues that may arise, and how LEXVISA Immigration Solicitors and Barristers can help you overcome these.
The connection between TUPE transfers and migrant workers
When an employer inherits employees via TUPE transfers, the new employer (transferee or buyer) is responsible for ensuring all right to work checks are correctly carried out. The only exception to this is if the transferee can be sure that the transferor correctly carried out these checks previously. So what’s the risk? The transferee is often liable for any mistakes or discrepancies that may occur as a result of the TUPE transfers scheme.
For any employer in a transferee position, this risk is undesirable, as it could impact the business both internally and externally as sponsor licences may be revoked and the disclosure could impact any future commercial bids or tenders. For these reasons, LEXVISA Immigration Solicitors and Barristers suggests seeking specialist legal advice in these situations.
Applying for a Tier 2 Sponsor Licence
Migrant workers are employed on the basis of receiving a Certificate of Sponsorship from their employer, in order to obtain Tier 2 Work Visas. Employers have to apply for sponsor licenses from the Home Office and this process is difficult in its own right but should transferees fail to conduct adequate checks into their migrant workers, the complications can be extensive. Although employees can be transferred with relative ease, the sponsor licence itself cannot, and the transferee must apply for it. This is also the case where a transferee has an existing sponsorship licence but it doesn’t cover the relevant tiers or categories. A new licence or extension should be sought within 20 working days of the transfer. If this deadline is not met, all Tier 2 Work Visa employees are liable to have their leave to work curtailed to 60 days (unless exemptions apply). If the new employer does not seek the license in the timeframe, it may be subject to civil and/or criminal sanctions. Visits from the Home Office should be expected during the application process.
If the transferee deliberately fails to make an application for a sponsor licence with the intention of avoiding sponsored migrant employment, the employee has grounds to bring an unfair dismissal complaint at the Employment Tribunal, providing all obligatory terms are satisfied.
What further responsibilities do each TUPE transfers and migrant workers have?
During the TUPE transfers process, both transferor and transferee have responsibilities to undertake. If you are a transferor, you must report the transfer via the Sponsorship Management System (SMS) within 20 working days, including full details of the sponsored migrants being transferred and whether or not the license is surrendered or dormant. As a transferee, you must also report the transfer within 20 working days to the SMS, including full details of the sponsored migrants being transferred and if relevant, apply for an increase in allocation of certificates of sponsorship. You must also apply for access to the transferor’s SMS so that you can report migrant activity as you will not be able to see transferring employees on your own system.
Preventing the Certificate of Sponsorship being transferred under TUPE transfers and migrant workers scheme
If an employee’s role or salary changes during the transfer (i.e. it falls within a new Standard Occupational Classification (SOC) code), the employee will need to make a new application for leave and the transferee is required to assign a new Certificate of Sponsorship. Usually, this will require a new resident labour market test. This article has sought to highlight the complexities and potential escalation that may occur during TUPE transfers and migrant workers, and how important due diligence in these situations is. It is highly advised to seek specialist legal advice to ensure that all of the necessary requirements are met and that applications are made in good time. LEXVISA Immigration Solicitors and Barristers can assist you in these matters as we are a team of highly experienced solicitors and barristers, who are extremely familiar with the relevant application processes and always strive to obtain the best results for our clients. Our service is entirely bespoke and personal, and we treat our clients as people, not cases.
Using Legal Representation for a Tier 2 Sponsor Licence under TUPE transfers and migrant workers scheme
Legal representatives, such as our specialist immigration and visa law firm, are qualified to advise you on immigration law and your immigration status. It is possible to instruct an immigration and visa legal representative to submit a Tier 2 Sponsor Licence application under the TUPE transfers and migrant workers scheme.
Caseworkers at the Home Office are trained to reject applications which are improperly prepared, for example by failing to provide the correct supporting evidence. In order to ensure your Tier 2 Sponsor Licence application under the TUPE transfers and migrant workers scheme succeeds, all necessary documents must be provided.
This can be a significant administrative task and you will need to submit the correct documentary evidence. The UK Immigration Rules are complex and a legal representative can help ensure that your Tier 2 Sponsor Licence application under the TUPE transfers and migrant workers scheme meets the Immigration Rules.
Successful Tier 2 Sponsor Licence under TUPE transfers and migrant workers scheme
Our team of solicitors and barristers are specialist immigration lawyers who act in your best interest. We offer a client-tailored approach from the outset. From the very first meeting, we will be able to advise you in respect of your immigration status and the merit of your Tier 2 Sponsor Licence application under the TUPE transfers and migrant workers scheme. before your matter even reaches the Home Office UK Visa & Immigration department. We can assist you with the preparation and submission of your Tier 2 Sponsor Licence application under the TUPE transfers and migrant workers scheme. and ensure that you meet all the requirements of the relevant rules.
We are based in the legal epicentre of London, just across the road from the Royal Courts of Justice in order to ensure we get the best results for our clients. LEXVISA Immigration Solicitors and Barristers is just minutes away from the Immigration and Asylum Tribunal, the Royal Courts of Justice and other central London courts.
Preparation is the key to a successful application. Our UK immigration and visa solicitors are here to guide you through the complex immigration rules and requirements. If you wish to meet one of our lawyers, please call our Immigration Team so we can assess your case and arrange your legal consultation.
Contact our London immigration solicitors on 02030110276 or complete our contact form.