Employers who have an Immigration Licence can sponsor skilled workers under Tier Two of the points based immigration system. This can bring great benefits to the business in terms of being able to sponsor employees to work in roles where there are shortages in the resident labour market or by facilitating transfers from overseas group companies. However, having a Licence also involves the employer agreeing to comply with certain sponsorship duties: compliance with these is critical.
What is a Compliance Visit?
One of the conditions of having a Sponsorship Licence is that the employer must agree that the Home Office can carry out a compliance visit at any time. Such visits can be arranged in advance or they may be unannounced and the employer should not unreasonably refuse access to the Home Office. During a visit, the Home Office will ask for access to employee personnel files, may interview migrant workers and will ask for paper work and policies to demonstrate that the HR processes and procedures outlined below are in place.
The Home Office (formerly the UKBA) have carried out thousands of compliance checks on employers. These visits have resulted in a significant number of employers having their Sponsorship Liences suspended or revoked. Therefore the Home Office is ready and willing to take action against errant employers.
What do the Home Office Consider during a Compliance Visit?
The Home Office will examine those areas of HR processes and procedures that are outlined in their guidance to ensure that the employer is complying. They can also verify that the information provided by the employer in the Licence application was correct and that any changes have been notified to it. They will check that any changes to the key personnel named on the Licence application have been properly reported.
What are the HR processes and procedures considered by the Home Office?
The five areas of HR systems that will be considered are set out in detail on the Home Office website, but the key duties include:
1. Monitoring immigration status and preventing illegal working
Employers are expected to have systems in place to ensure employees have permission to work in the UK – this involves checking, copying and retaining on file evidence of employees' entitlement to work. Annual checks must be carried out for those employees who have permission to work for a fixed period of time.
Employers should be able to demonstrate through a diary system that such checks will be carried out. It is good practice to have a written policy on illegal working checks, identifying individuals responsible for such checks and for reviewing the policy regularly.
2. Maintaining migrant contact details
The Home Office expects employers to keep a history of contact details for migrant workers, not just a current address. This can be in electronic or written form and must include a UK residential address, landline and mobile telephone number. The employer should be able to demonstrate there is a system for ensuring such details are kept up to date, for example, including a provision in employment contracts requiring any changes to be notified.
3. Record keeping
Employers must be able to produce any documents for migrants the Home Office considers relevant, for example, details of the recruitment process.
4. Migrant tracking
Employers have various reporting duties in relation to migrant workers. These include reporting migrant workers who do not start work on the date anticipated, who are absent without permission, whose employment has ended, who cease to be sponsored and various other matters. Employers need to consider whether they have systems to ensure these matters would come to the attention of HR. This may involve issuing guidance to those managing migrant workers.
5. General sponsorship duties
There are a number of other general duties that come with having a license. They include updating the Home Office with changes to key personnel who operate the sponsor management. Other significant changes, such as takeovers and changes of address, also need to be reported.
What Are the Consequences of Breaching Sponsorship Duties?
Breaching these duties can have serious consequences for any business. Employers found in breach can have their licence downgraded, suspended or revoked, which could expose many to significant operational and financial risks. A licence downgrade effectively means the employer cannot sponsor any new migrant workers during a three-month period, potentially resulting in a shortage of skilled workers. During this time the organisation will have an action plan to improve (it pays a fee for this). If the required improvements are not made, the licence may be revoked. Having a licence suspended or revoked could cause business disruption for those employers who sponsor a large number of migrant workers, or with migrant workers in key roles, as those individuals can no longer work there.
Audit
Employers would be well advised to have an annual audit in place to check their systems comply with current requirements and, most importantly, to check those systems are being followed in practice. Our Immigration specialists can assist employers by carrying out Mock Compliance Visits for a fixed fee: a great way to check if the required procedures are up to scratch.
UPCOMING EVENTS
Business Immigration for HR: an overview of the rules and how to prepare for a compliance visit
Keeping up to date with the rules about who can be sponsored to work in the UK is vital from a business perspective but can present a challenge as the rules change so often. If you are an HR professional or have an interest in knowing more about sponsorship duties this seminar will provide practical tips and recommendations.
Tuesday 3 September, Edinburgh, 9.00am-10.30am
Friday 6 September, Glasgow, 9.00am-10.30am
Disclaimer
The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.
