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Tier 2 and 5 Addendum: what does it mean for your sponsor licence?

  • United Kingdom
  • Employment law - HR E-Brief

24-07-2019

Home Office guidance documents for sponsor licence holders are generally updated twice a year, which last happened in April. An unscheduled update was made on 17 July 2019, rather conspicuously, to the very front page of the guidance document for Tiers 2 and 5 sponsors, with immediate effect to all sponsors and those seeking to apply.

The addendum reminds sponsors that significant trust is placed in them and with this trust comes a direct responsibility to act in accordance with the Immigration Rules, all parts of the Tiers 2 and 5 sponsor guidance, and with the wider UK law. This in itself isn’t news, but the addendum goes on to impose new behavioural obligations on existing and prospective sponsors to ‘behave in a manner that is consistent with our fundamental values and that is not detrimental to the wider public good.’

This statement was clearly important and urgent enough to be placed at the very front of the sponsor guidance, in such a way that nobody could claim to have missed it. What does it mean? Why is it needed now?

The text provides examples of actions and behaviour that are non-conductive to the public good and will prevent the Home Office from licencing an institution or will lead to action being taken against an existing licence such as:

  • fostering hatred or inter-community division;
  • fomenting, justifying or glorifying terrorism; and/or;
  • rejecting the rights of, or discriminating against, other groups or individuals on the basis of their gender, gender identity, sexual orientation, marital status, race, religious belief (including lack of belief), or any other protected characteristic under the Equality Act 2010.

The addendum provides the Home Office with wider discretion to take compliance action against existing sponsors (e.g. suspension or revocation) or to refuse a sponsor licence application if it becomes known to them that the institution has engaged in such behaviour or actions. The Home Secretary has subsequently advised that he will use the new rules to revoke the sponsor licence of CAGE, a controversial NGO.

Does the Home Office now have discretion to revoke the sponsor licence of an institution accused of discrimination? Employers increasingly find themselves subject to discrimination claims, some of which are without merit and are not upheld in the Employment Tribunal. It is important to note that where sponsor licence revocations have been challenged, the Courts are seemingly inclined to side with the Home Office due to the wide discretion they have in these matters. Should this wider discretion be applied in practice, it will be essential for an institution to evidence flawless compliance with the rest of the guidance in mitigation. A model sponsor will, we would anticipate, have a stronger argument that the Home Office shouldn’t revoke the licence than one who is non-compliant in other areas as well.

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