How to deal with Tier 2 Migrants working at third party premises

By Amar Ali, Immigration Solicitor

November 27, 2020

It is the responsibility of employers with sponsor licences to familiarise themselves with changes to the immigration rules relating to sponsoring overseas skilled workers. On the 6^th of April 2017, the employee sponsorship licence rules were updated, touching on employers who allow their Tier 2 migrant to go out to work at a third-party site.

The key points of the changes include: -

The Home Office has the rights to visit sponsor licence holders unannounced at any time as part of immigration compliance spot checks.
Compliance spot checks are not restricted to the primary place of assignment of the migrant. The home office may carry out unannounced checks at any physical address where sponsored migrants carry out their employment duties.
The Sponsor must ensure that clear arrangement is made with the third party regarding access and full cooperation, for any visit of Home Office compliance officers.

What this means for Sponsors

If you are a sponsoring employer whose Tier 2 employee work at third-party premises, the following steps may be necessary: -

Inform third parties that the Home Office may visit unannounced and that should cooperate with the Home Office' compliance officers during the inspection.
Good record keeping must be maintained at all times by both the employer and the third party. Records of agreements, duties, attendance and communication must be properly kept.
Ensure that both the third party and the migrant are aware that the migrant cannot carry out work or activities that are outside his/her certificate of sponsorship.

Relocation to a different site of the same organisation

If you are looking to move your sponsored migrant to a site, it is important that this move is reported to and approved by the Home Office. You will need to add this new location as an additional site on the Tier 2 Sponsor Licence.

Once the UKVI approves the additional site, you may now proceed with moving the Tier 2 migrant to the new site.

Relocation to a different branch of the same organisation

This instance relates to where the change of location is to a different entity but where both entities share common ownership or control.

The process here is the same as above. The employer must inform the Home Office to obtain an approval to relocate. Importantly the branch must have been reported to and approved by the Home Office as a branch on the Tier 2 sponsor licence management system.

The employer must show evidence of the relationship between the parent and the branch. Evidence of relationship may be by way of audited accounts.

The employee may be transferred once the branch has been approved.

Secondment to a third party

Tier 2 migrants can only work for a third party where they will be working on a project for the third party on behalf of the sponsor. Please note that the Tier 2 migrant cannot be one of the following: -

Agency workers, whether temporary or permanent.
Contracted to undertake an ongoing routine role or to provide an ongoing routine service for the third party.

Note that the third party need not be added to the sponsor licence.

Summary

Change of location must be reported and approved by the Home Office before it can be implemented
Employer's sponsorship duties continue regardless of whether or not the migrant is physically present at the sponsor's premises or at a third party's.
Migrants HR files must reflect changes where necessary.

Reiss Edwards boasts of a team of expert sponsor licence lawyers in London who can assist you with all matters regarding Tier 2 visa applications, sponsor licence applications as well as immigration compliance and audit.