Checklist—immigration-related requirements on a TUPE transfer
Produced in partnership with Jennifer Featherstone of Shoosmiths

The following Employment practice note produced in partnership with Jennifer Featherstone of Shoosmiths provides comprehensive and up to date legal information covering:

  • Initial considerations and due diligence
  • Inheriting employees via TUPE—right to work checks
  • What if an employee does not have the right to work?
  • Applying for a sponsor licence under Tier 2—procedure
  • Sponsorship management system—reporting requirements upon transfer
  • What to do if an employee’s role is changing post transfer

This Checklist gives an overview of the immigration matters that should be considered on a relevant transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006), SI 2006/246 and explains the necessary steps to take when involved in a transaction. It also highlights relevant Practice Notes and Precedent materials. Immigration requirements during a transaction where TUPE does not apply are outside the scope of this checklist.

For an outline of the effect and requirements of TUPE 2006 generally, see: TUPE—overview.

Initial considerations and due diligence

  1. Where it is identified that a transferor employs sponsored migrants, the importance of carrying out thorough due diligence in respect of immigration matters should not be underestimated during a transaction. Immigration issues should be considered at an early stage to allow the parties to prepare for compliance with necessary deadlines etc

  2. Initial enquiries about transferring employees' immigration status should be made at the beginning of the transaction process and care should be taken to ensure the accuracy of the responses (including raising further enquiries where responses may not be clear). Transferees should also carefully review any disclosures against warranties

  3. It may be easier to carry out a comprehensive immigration-related due diligence exercise on an asset purchase, as opposed to a change of contractor scenario (where there is unlikely to be any direct

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