There seem to be a degree of confusion about the ability of employment agencies and recruitment agencies to obtain immigration sponsor licence to sponsor (employ) migrant workers on Skilled Worker visas and on other sponsored visa routes (e.g. Global Business Mobility visas). With the current dire staff shortages in many sectors in the UK, recruitment agencies may be tempted to apply for immigration sponsor licence to recruit foreign workers from overseas, employ them at their agency on sponsor work visa, and then supply them to third parties (clients) to make significant profits. However, are such practices legal from the UK Home Office immigration perspective. We address this question in our article further below.
Can employment (recruitment) agency obtain sponsor licence
Employment (recruitment) agencies can apply for Sponsor Licence to sponsor foreign workers who will work directly in their recruitment business. As an example, recruitment agencies may need some IT support staff to manage their IT systems, sales staff to do their marketing, or Recruitment Consultants to provide recruitment services to their clients. Migrant workers who fill those jobs should be able to apply for a work visa sponsored by the recruitment agency.
Can recruitment agency supply their sponsored workers to clients
The Home Office immigration policy guidance states quite clearly that employment (recruitment) agencies cannot sponsor foreign workers and then supply them to their clients. This Home Office policy is strict, and unless the migrants work directly in your recruitment business, you should not sponsor them, as otherwise your licence may be revoked (cancelled).
There is NO exception to the above rule even if recruitment agency (recruitment business) is providing time bound contract services to clients. You can see from the below cited extract from Home Office guidance that the rule applies ‘regardless of any genuine contractual arrangement’.
‘Employment agencies and third-party employment
L5.11. If you are an employment agency or any third party (intermediary) who supplies workers to a client, you can apply for a sponsor licence but only to sponsor workers who will be employed directly by you in connection with the running of your business. You cannot sponsor a worker and then supply them as labour to another organisation, regardless of any genuine contractual arrangement between the parties involved.
L5.12. If you are an employment agency or intermediary and we grant a sponsor licence to you on this basis, but later find the workers you are sponsoring have been supplied as labour to another organisation, we will revoke your licence.’
Sponsorship immigration compliance for recruitment agency employees
The immigration sponsorship compliance problems arise when employment agency holding a sponsor licence starts issuing work permits called Certificates of Sponsorship (COS) to employees who are then contracted out to other organizations. The matter of who pays salary to contract worker does not determine who is the sponsor. The Home Office is interested in actual work arrangements, and according to their guidance the sponsor is the organisation that has full control over all their duties, functions, outputs or outcomes.
In the Home Office words: ‘if we think that you will be breaching the rules for your sponsorship of a contracted out worker we will contact the employer and ask if the employee:
- works, or will work, independently from them and you, as the sponsor, have full control over all their duties, functions, outputs or outcomes
- is not being supplied to them to undertake a routine role
An employment agency with Sponsor licence may start issuing Certificates of Sponsorship for its contract workers in breach of the Home Office guidance. Home Office may not notice the problem immediately and approve those certificates and visas. Eventually, however, the Home Office is likely to spot it. When they do, it will spell troubles for the sponsor and migrant workers in question. The sponsor licence for the organization will be revoked with all the consequences it entails. This is confirmed in Home Office sponsorship compliance guidance.
‘You are, or you are acting as, an employment agency or business and you have supplied a worker you are sponsoring to a third party as labour.’ ‘You are an employment agency or employment business and we
grant a sponsor licence to you on this basis, but later find a worker you are sponsoring has been supplied to a third party as labour.’
Key lesson there is that it is not worth it for the organization to obtain sponsor licence and use it improperly. You will be eventually found out and your reputation with the Home Office will be ruined for a long time. That would harm your interests in any further dealings with the Home Office.
Key terms to note:
Routine role – whether the role is there to stay or lasts for a limited time only
Operational control- who decides employees working time and tasks
For the full and up to date information visit Home Office website and download guidance PDF provided.