UK Home Office clarifies fees recoverable by sponsoring employers from skilled workers

A wide range of costs will be incurred when an employer in the UK sponsors a migrant worker from overseas under certain visa routes, such as the skilled worker visa. As the number of sponsored migrant workers rises in the UK, employers increasingly need to consider the cost of sponsorship, including what and when they can expect a sponsored worker to pay, according to corporate immigration law expert Shara Pledger at Pinsent Masons.

Recent guidance issued by the Home Office has clarified the position on the recovery of certain fees, making clear that it is not permitted for sponsors to pass on some of these costs to their workers. Prohibited charges include the cost of a sponsor licence, the cost of assigning a Certificate of Sponsorship (CoS) and any applicable Immigration Skills Charge (ISC). But an employer may receive partial refunds of the ISC direct from UK Visas and Immigration if a worker departs the organisation with at least six months’ sponsorship remaining.

Employers are allowed to recover certain types of costs from a sponsored worker, provided there is a contractual agreement in place. This category includes the UK Visas and Immigration application fee, the immigration health surcharge, and mandatory and unavoidable administrative charges for submission, such as the cost of attending an overseas application centre. There is nothing within the Home Office’s sponsor guidance that places a duty on a sponsor to fund the cost of applications for workers or their family. Therefore, similar fees in relation to the family members of a sponsored worker can also be recouped by the employer.

It may be possible for sponsors to recover several other types of charges from sponsored workers. These charges typically relate to the preparation and submission of the application which are not essential to pay. The ability to recover those fees is subject to contractual agreements between the employer and the worker, as well as being “reasonable and proportionate”.

The reasonableness of seeking to recover any costs will be dependent on whether they were reasonably incurred. Where a sponsor has insisted upon the application of charges, it may be unreasonable to request a worker to repay them in any circumstances, such as priority fees for submission or assessment of visa applications and translation fees if the sponsor specified the services to be used.

Legal fees associated with the preparation and submission of a worker’s application potentially can be recovered, but if the sponsor demanded these services be used, then it is much less likely. Legal fees that are subject to clawback should also not include fees for support given to the sponsor, such as support to assign the CoS.

“The broad position is that if the charge relates to sponsorship, it will not be recoverable from the worker. If the charge relates to a personal immigration application, it likely is recoverable, but this is caveated. Seeking to recover costs from a worker must be reasonable and proportionate, for example including a ‘sunset’ clause that reduces the percentage of fees to be recovered as time passes,” said Pledger.

“Recovery of fees may also prove difficult to enforce in practice. For example, quantifying the value of legal advice for support only with a personal application can be challenging where the same representative has completed all work. A clear contractual agreement is recommended outlining the costs applicable and the circumstances that could lead to their recovery,” she said.