Complex company structures are very common in large organisations, particularly those with global multi-office footprints. Where these companies have shared HR and People services, employers may wish to transfer employees from one part of the business to another, for example to fill a skills shortage. However, where the workers being transferred are sponsored visa holders, consideration should be given to the immigration implications of such a move to both the visa-holding employee and the sponsoring company.
By way of brief background, if a company wishes to employ non-British or non-Irish nationals, they may be required to sponsor them. To do so, employers must first obtain a Sponsor Licence from the Home Office. Depending on the company's needs, they may either sponsor new hires under the Skilled Worker or Scale-up Worker visa categories. Alternatively, they may sponsor existing employees of its overseas businesses for a temporary assignment in the UK under one of the Global Business Mobility (GBM) visa categories, provided the minimum salary and skill levels are met for each particular category. There are different Sponsor Licences which apply to different visa categories. Therefore, where a Sponsor Licence is granted under one category (such as Skilled Worker), but the company wishes to sponsor workers under another visa route, the Sponsor Licence holder will need to request for this route to be added to its Licence before the worker can make their visa application.
It is important to note that when a Sponsor Licence is granted, this only allows the entity holding the Licence to sponsor workers for employment in the UK. However, it is possible to add a company's parent, sister, or subsidiary UK entity as a linked UK company to the Sponsor Licence should an employee be required to undertake work for such a company. Before doing so, the Sponsor Licence holder must have informed the Home Office that there is a link of common ownership or control between the companies, and have the linked company added to its Sponsor Licence before the sponsored worker can commence work for the linked company. Once the Sponsored worker's employment is transferred, or once they commence work for the linked UK entity, this will also need to be reported to the Home Office within ten working days of the change taking place.
Where an existing employee of an overseas branch is being transferred for a temporary assignment in the UK under one of the GBM routes, the UK entity must ensure that its overseas branch is already connected to the Sponsor Licence for GBM sponsorship purposes. Additionally, the worker's role in the UK must meet the minimum salary and skill levels relevant to the particular GBM route. The employer must also ensure that the worker has worked for the overseas entity for the necessary minimum period. Otherwise, the worker's application may be refused.
Example 1
Company A holds a Sponsor Licence and already sponsors Mr X as a Skilled Worker for employment in the UK. Company A wishes to transfer a cohort of employees that includes Mr X to Company B, a subsidiary service company of Company A. Company B does not hold a Sponsor Licence but it is 100% owned by Company A. Before being able to transfer Mr X to Company B, Company A must take the following steps:
- Make an application to the Home Office for Company B to be added as a linked UK entity (known as a "Branch" for sponsorship purposes) on Company A's Sponsor Licence;
- Once Company B has been added as a linked UK "branch" company, Mr X may commence work for Company B;
- Company A must report that Mr X now works for Company B to the Home Office, and report any change of job title, duties, salary, hours per week or work location resulting from this change in work circumstances. Such reports should be made as swiftly as possible, but in any event, within ten working days of any change taking place. However, if there is a change of duties, such duties must continue to fall within the occupation code under which Mr X is sponsored. Otherwise a new Certificate of Sponsorship and visa application must be made before Mr X may commence his new role with Company B.
Example 2
Company C is a UK company which holds a Sponsor Licence. Company C's parent company, Company D, is also based in the UK but does not have a Sponsor Licence. Company D wishes to transfer the skills of Miss Y who currently works for Company D's subsidiary company in the US, to the UK on a permanent basis for employment with Company D.
There are two options for Company D. Company D could apply for its own sponsor licence or Company D could be added to Company C's existing Sponsor Licence as a UK "branch" in order to sponsor Miss Y in the UK.
Company D may wish to hold its own Sponsor Licence to mitigate against any risk to and from Company C. Should there be any compliance issues with Company C's licence, this will impact Company D's ability to sponsor worker in the UK. Similarly, should Company D fail to comply with sponsor duties, this may impact the validity of Company C's licence.
If Company D wishes to be added to Company C's licence, this must be completed by the Home Office before Miss Y can be assigned a Certificate of Sponsorship and make her visa application to enter the UK.
Example 3
Company E holds a Sponsor Licence to sponsor Skilled Workers in the UK. Company E's parent company is a US entity. Company E has an urgent requirement for the skills and expertise of Miss Z who works for Company E in the US. Miss Z is required in the UK on a non-permanent basis and upon completing her assignment in the UK, will return to her role in the US.
In this circumstance, Company E may either sponsor Miss Z as a Skilled Worker to undertake the required work in the UK. Alternatively, Company E may wish to add its parent US company to its Sponsor Licence as a linked overseas entity for the purpose of transferring employees under the GBM: Senior or Specialist Worker visa category as there may be tax advantages in doing so. Should this route be preferred, Company E must take the following steps:
- Make an application to the Home Office for the US parent company to be added as a linked overseas entity on Company E's Sponsor Licence for the purposes of GBM: Senior or Specialist Worker sponsorship;
- Once the US entity has been added as a linked overseas entity for GBM: Senior or Specialist Worker purposes, Company E may assign a GBM Certificate of Sponsorship to Miss Z, provided her role in the UK meets all requirements for such a CoS to be assigned;
- Miss Z may then make her visa application to enter the UK.
As the Home Office may take up to three months to link another UK or overseas entity to a sponsor licence, preparation and long-term planning are key to intra-company transfers and movements.