Q&As

Following a TUPE transfer, if the 20-working day window is missed for reporting/applying for a new sponsor licence, will the transferee be required to carry out the Resident Labour Market Test for the transferred employees?

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Published on LexisPSL on 26/02/2020

The following Immigration Q&A provides comprehensive and up to date legal information covering:

  • Following a TUPE transfer, if the 20-working day window is missed for reporting/applying for a new sponsor licence, will the transferee be required to carry out the Resident Labour Market Test for the transferred employees?

We have assumed that:

  1. the transferee business does not already hold a sponsor licence under the tiers and categories needed to sponsor the transferred employees. Also that the transferor did not report the transfer within 20 days in accordance with their sponsor duties set out in the Tiers 2 and 5 Sponsor Guidance

  2. the transferor did not report the transfer within 20 days in accordance with their sponsor duties set out in the Tiers 2 and 5 Sponsor Guidance

Paragraph 13.3 of the Tiers 2 and 5 Sponsor Guidance (SG) states that:

‘Where migrants are being moved to you under TUPE or similar protection, but you do not already have a sponsor licence under the tiers and categories needed to sponsor them, you must make an application either for a sponsor licence, or to extend the scope of your existing sponsor licence. Your application must be made within 20 working days of the move taking place. If you:

  1. do not make a valid application within 20 working days

  2. do make a valid application, but that application is refused

all of the migrants moved to you, except any that can be sponsored under your existing licence if you have one, will have their leave curtailed.’

The reason for such curtailment is set out in Practice Note: Tier 2 (General) and (Intra-Company Transfer): changes of employment:

'Sponsored migrants are prohibited under

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