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BUYING A PHARMACY
Purchase of a pharmacy with a sponsor licence.
I
mmigration issues are an important part of the due diligence process when purchasing a pharmacy. If the pharmacy you are buying holds a sponsor licence and employs any sponsored employees there are a series of actions you must take in order to ensure that you comply with UK immigration law. What these actions are will depend on the nature of the transaction, i.e. whether is it a Share Purchase or a Business Purchase and also on whether you wish to continue the employment of the sponsored staff.
Sponsored Employees Sponsor licences permit organisations to sponsor international pharmacy sector workers in roles including pharmacists and pharmaceutical technicians.
Many sponsored employees tend to stay with their employers for at least five years. This is because after five years, a sponsored employee is eligible to apply for indefinite leave to remain, i.e. permanent residence in the UK. Whilst a sponsored employee can change employers, a change of employment involves a new visa application and many wish to avoid the uncertainty and cost of this.
Clients often tell us that while sponsorship requires an upfront investment in time and costs, the benefits outweigh the costs.
Sponsored Employees and TUPE The Home Office have rules in respect of what happens to a sponsor licence when there is a change of ownership. The reason these rules exist, is because the responsibility for compliance with sponsorship duties lies with the business owner. Therefore, if the business owner changes, the Home Office require a new sponsor licence application so that they can carry out suitability checks on the new business owner.
The first question to consider, is what happens when there is a TUPE transfer: a TUPE transfer occurs where there is a transfer of a business or part of a business that retains its identity after the transfer. Where TUPE applies and the seller has a sponsor licence and sponsored employees, the new owner (i.e. the new employer) becomes responsible for all of the obligations, including any sponsored employees.
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The new owner must comply with sponsor duties including reporting changes to the Home Office – for example, where a sponsored employee leaves employment or the business’s name changes. However, the good news is that while there are reporting requirements, no new visa application is required, unless the sponsored employee is required to change roles.
If the new owner does not already hold the appropriate sponsor licence they must apply within 20 working days of the transaction completing for a new sponsor licence. If they fail to apply, or their sponsor licence application is refused, the visas of all sponsored employees are likely be curtailed so that they only have 60 days left on their visa. Either they will have to find a new sponsor within this period or they will have to leave the UK. This is obviously an extremely serious disruption for the new owner and the sponsored employee. We recommend that you ask the seller if they hold a sponsor licence at the earliest possible stage in negotiations. Alternatively, there is a public register of businesses who hold licences, and you could check here.
Sponsored Employees and Share Deals Where a buyer purchases the shares in a company (a Share Purchase), the employing entity does not change, but the beneficial owners of the company or the proportion of shares each owner holds in the company may change.
The Home Office take the view that if there is a change in the controlling shares of a company, then the new owner will be required to obtain a new licence.
Applying for a sponsor licence With the strict 20 working days deadline for submitting a sponsor licence after completion it can be helpful to start preparation early. Some of the documentation required may include: • business bank account statement • employer’s liability insurance • proof of ownership or lease of the business premises
• evidence of local authority planning permission
• evidence of registration with the General Pharmaceutical Council
This is only part of the documentation and information which may be required but considering these documents during the diligence process can make the sponsor licence application an easier process.
Recruitment of Global Talent In addition to retaining transferred or existing sponsored employees, you can use your sponsor licence to recruit and sponsor those who require a visa to work in the UK. Our clients tell us that there is a considerable international pharmacy sector talent in the UK. This includes many individuals who have been qualified pharmacists in their own countries.
The inclusion of pharmaceutical technicians on the Immigration Salary List for Skilled Worker visas reduces certain requirements like the minimum salary required for the role. As “Pharmacist” and “Pharmaceutical technicians” are also a category eligible for the Health and Care Visa this means significantly reduced visa costs. Additionally, the Immigration Health Surcharge, which is often the most expensive part of the visa process does not apply to health care workers. The result is that sponsorship of an international employee can be less than you think.
The Health and Care Visa offers significant savings and is an attractive route for employers looking to tackle staffing shortages in the long term. While sponsorship can be an initial investment in costs and time, it is an investment that can bear fruit, providing businesses with a pipeline of highly qualified, committed and professional staff.
Thorntons Law is Scotland’s leading law firm for the health care sector and provide a one-stop service for clients looking to recruit and retain international talent and comply with UK immigration law.
KIM CAMPBELL Partner 01382 797067
kcampbell@thorntons-law.co.uk
AIMEE GIBBONS Partner 0141 483 9022
agibbons@thorntons-law.co.uk
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