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Document retention by sponsors of Tier 2 migrants: what is changing?

  • United Kingdom
  • Employment law
  • Global mobility and immigration

12-09-2019

Sponsors of Tier 2 migrants will be aware that they are obliged to retain certain documents for every sponsored migrant for a set period of time as part of their sponsorship duties. The specific documents that sponsors are required to retain and the specific time limit for retaining such documents is set out in Appendix D of the guidance for sponsors.

Sponsors of Tier 2 migrants are expected to be able to produce a compliance pack containing all of the documents required by Appendix D for each sponsored migrant in the event of a compliance audit/inspection by the Home Office. The Home Office has recently made significant changes to Appendix D.

What has changed and what do sponsors need to do differently?

The biggest change is that the Home Office has amended Appendix D so that sponsors are now required to obtain evidence of the date on which the migrant entered the UK. This is to ensure that migrants enter the UK during the validity of their Tier 2/5 visa and therefore have the right to work for their sponsor. If the sponsored migrant entered the UK before the ‘valid from’ date on their visa, they will not have the right to work. It is therefore important that sponsors obtain the evidence of the date of the migrant’s entry into the UK before the sponsored migrant commences employment to ensure that they have the right to work. Sponsors will need to ensure that their onboarding process is updated to ensure that evidence of the migrant’s evidence of date of entry is obtained at the pre-employment right to work check.

In most cases, sponsored migrants will be entered into the UK by an immigration officer who will stamp their passport with their date of entry. Before the sponsored migrant commences employment, sponsors should therefore check the migrant’s passport for an entry stamp endorsed on their visa and make sure that this is within the validity of the visa. Sponsors must then make a copy of this stamp and retain this as part of the sponsored migrant’s compliance pack.

There are some circumstances in which the migrant may not have an entry stamp, including:

  • where the migrant enters the UK through Ireland; or
  • if the migrant is a national of Australia, Canada, Japan, New Zealand, Singapore, South Korea or the USA and they used an eGate to enter the UK.

If a sponsored migrant does not have an entry stamp in their passport, sponsors must ask the sponsor to provide other evidence of their date of entry into the UK, e.g. travel tickets or a boarding pass (in hard copy or electronic form), and make sure that this is within the validity of the migrant’s visa. Sponsors must make a record of the date that the migrant entered the UK, but do not have to retain a copy of the evidence.

If the sponsored migrant entered the UK before the ‘valid from’ date on their visa, sponsors should not allow the migrant to commence employment and should advise the migrant to leave the Common Travel Area (UK, Guernsey, Jersey, Isle of Man and Ireland) and re-enter within the validity of their visa. Once the migrant has re-entered, the sponsor must ensure that the migrant’s passport is stamped with their date of re-entry or obtain other evidence of their date of re-entry before the migrant is allowed to commence employment.

It is important that sponsors are aware that the requirement to obtain evidence of the sponsored migrant’s date of entry is separate to the sponsor’s obligation to perform right to work checks on migrants prior to their employment commencing. However, in order to reduce the administrative burden on sponsors, we recommend that sponsors carry out manual pre-employment right to work checks on sponsored migrants so that they can obtain the migrant’s date of entry evidence when carrying out this check.

For the purposes of evidencing the migrant’s right to work, sponsors must ensure that the verified copies of the List A/List B documents are retained in the migrant’s right to work file for the duration of the migrant’s employment with the sponsor and for two years after the migrant’s employment has ended in the usual way.

For the purpose of the migrant’s compliance pack, the sponsor must retain copies of the following documents in the pack:

  • migrant’s passport,
  • vignette; and
  • BRP,

together with the entry stamp and other Appendix D documents, for the duration of their sponsorship and:

  • for one year after the end of their sponsorship; or
  • if they are checked and approved by the Home Office during an inspection which takes place less than one year after the migrant’s sponsorship ends.

We recommend that sponsors update their onboarding and document retention processes to reflect this.

Smaller changes to Appendix D are:

Clarifying the document retention period

The Home Office has clarified that compliance packs must be kept throughout the sponsored period and until:

  • one year following the date on which the sponsorship of the migrant ends; or
  • the date on which a Home Office inspection has examined and approved the documents, if this is less than one year after the migrant’s sponsorship ended.

However, it is important to remember that any documents evidencing the sponsored migrant’s right to work must be retained throughout his/her employment and for two years after the sponsored migrant stops working for their sponsor. Sponsors must therefore ensure that any right to work evidence held for the sponsored migrant is not destroyed for the sponsored migrant until two years after the sponsored migrant stops working for them.

For evidence of the resident labour market test, clarifying the information which a screenshot of the Find a Job website taken on the day the vacancy is first advertised must show

The Home Office has clarified that a screenshot of the Find a Job website taken on the first day the vacancy is first advertised must show the vacancy reference number (if one exists).

Comment

It is important that sponsors keep both their migrants’ right to work files and compliance packs up-to-date and ready for inspection/audit by the Home Office.

In light of the above changes, sponsors are advised to review their onboarding process to make sure that all of the required documents are collated for the migrant pre-employment and also to review their document retention process to ensure that they are able to produce the required documents in the event of an inspection/audit by the Home Office.