A common way for schools to meet these shortages is to sponsor skilled workers from outside the European Economic Area (EEA) using a Tier 2 Sponsor Licence.
Schools which are still maintained by their Local Authority (LA) can rely on a Tier 2 Sponsor Licence held by the LA to sponsor those staff. However, once those schools are no longer under the control of the LA then they will need their own Tier 2 Sponsor Licence should they wish to continue or start sponsoring skilled staff from outside the EEA.
The sponsorship duties associated with obtaining and maintaining a Sponsor Licence can be rather onerous for a single academy, but a MAT is able to hold a single licence to cover all schools within the trust because it will be able to demonstrate common ownership or control between the schools included on that single licence.
Problems may arise though if there are one or more Sponsor Licences involved when an Academy joins a MAT, or if there is a merger between two or more MATs.
Immigration in general, and sponsorship in particular, are frequently forgotten issues during mergers and acquisitions. However, to overlook these issues can lead to problems because the Home Office's longstanding position is that - irrespective of the reasons for the change of ownership or whether the identities of the personnel involved have changed - sponsor licences are not transferable assets. This position often leads to the rather unwelcome outcome that a new sponsor licence needs to be obtained.
In situations where the acquiring entity already holds a Tier 2 Sponsor Licence then sponsorship responsibility for the Tier 2 sponsored employees from the joining academy or MAT can be transferred to the acquirer's licence without the need for a new Certificate of Sponsorship. However, this provision only applies if the employees are being transferred under TUPE or another similar arrangement.
It is of crucial importance that the Home Office is made aware of the changes and that the MAT is agreeing to accept sponsorship responsibility for those sponsored employees.
Any merger, takeover, de-merger or other change of ownership which affects a Tier 2 Sponsor must be reported to the Home Office within 20 working days. Additionally, where a new licence is required (e.g. because the acquirer does not already have its own licence), the Home Office's Tier 2 and Tier 5 Sponsor Guidance provides that a valid application for a new licence must be submitted within 20 working days of employees transferring to the acquiring entity under TUPE or another similar arrangement. Because of these timescales it is crucial that early advice is taken on the impact of any proposed transfer of ownership structure on an existing Tier 2 Sponsor Licence as getting it wrong could lead to loss of the licence and curtailment of visas.
If you are a school with a Tier 2 Sponsor Licence and changes to your corporate structure are planned - particularly where those changes will affect the entity which holds the licence - we would suggest that you contact us as early as possible. We can help you put together a plan in order to protect both your position as a sponsor and your existing sponsored employees.