Immigration and TUPE - Guidance on Notification Requirements

Since 27 November 2008, workers from outside the European Economic Area (EEA) or Switzerland who wish to work in the UK have been subject to the points-based system of immigration.

To qualify, most immigrant workers need a job offer from a licensed employer and must be able to demonstrate that they have the requisite number of points. Also, unless the job in question is on the shortage occupation list, licensed sponsors have to prove that they cannot fill skilled posts with resident workers and must demonstrate that the job vacancy has been advertised in the UK. This is referred to as the ‘resident labour market test’. See the UK Border Agency (UKBA) website for further information.

The UKBA has issued revised guidance on an employer’s obligation to notify the UKBA when a migrant worker from outside the EEA is transferred to a new employer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).

If a business or a part of a business where sponsored migrants work or study transfers from one organisation to another, along with its employees or students, the new owner will need a sponsor licence. This applies, for example, when the assets of an organisation are bought and its employees transfer to the new organisation under TUPE.

If a licensed sponsor is involved in a takeover they must inform the UKBA, using the sponsorship management system. Further information on the sponsorship management system can also be found on the UKBA website.

If an organisation that is not a registered sponsor is taken over by a company that is a registered sponsor, the existing sponsor must notify the UKBA about the takeover within 28 calendar days of it happening.

If an organisation that is a registered sponsor is taken over by a company that is not a registered sponsor, then the existing sponsor must inform the UKBA about the takeover within 28 calendar days of it happening and the new organisation must apply for a sponsor licence within 28 calendar days of the takeover. If it does not, the UKBA is likely to reduce to 60 calendar days the period during which all the sponsored migrants who have transferred to the new organisation are permitted to stay in the UK. This is intended to give them time to find a new sponsor because they will no longer be working for or studying with a licensed sponsor.

If one registered sponsor organisation is taken over by another, the sponsor organisation which has been taken over must notify the UKBA about the change, identifying who has taken over responsibility for its respective migrants, within 28 calendar days of the transfer taking place. The new sponsor organisation must also tell the UKBA about the change within 28 calendar days of it happening, including details of all the migrants for whom it has assumed responsibility.