Common Reasons For Sponsor Licence Suspensions

Here, we explore some of the common reasons for a decision by the Home Office to suspend a sponsor licence and provide practical advice on how to navigate these pitfalls and avoid a sponsor licence suspension.

A sponsor licence is a crucial asset for businesses that employ non-UK workers, enabling them to attract and retain skilled talent from around the world.

A very high degree of trust is placed on licence holders. The Sponsorship Guidance makes it clear that one of the overriding principles of sponsorship is that "Sponsorship is a privilege, not a right – this means that those who benefit most directly from employing migrant workers must:

• play their part in ensuring the immigration system is not abused,
• comply with wider UK law, and
• not behave in a manner that is not conducive to the public good."

The Home Office requires licenced sponsors to fulfil certain duties throughout the period of their licence. When these requirements are not met, businesses risk having their sponsor licence suspended, which can have severe consequences for both the organisation and its sponsored employees.

Can the decision to suspend a sponsor licence be challenged?

Following a UKVI visit, if the organisation receives a sponsor licence suspension letter they will have 20 working days to file a response against that decision.

The response must be in writing and will need to be accompanied by strong supporting evidence that rebuts each of the concerns raised in the suspension letter. The ability to successfully defend a sponsor licence suspension will rest heavily on the quantity and quality of evidence provided.

The Home Office will decide which course of action to take based on the sponsor's response and evidence they provide. Sponsors must ensure that they respond to every allegation made in the sponsor licence suspension letter in detail and provide documents in support of their response.

After reviewing the sponsor's response and evidence provided the Home Office will either reinstate, downgrade or revoke the sponsor's licence.

Common issues leading to sponsor licence suspensions

We regularly deal with sponsor licence suspensions and often find that where the Home Office have suspended a licence, it is usually for a number of breaches of the sponsor duties.

We have recently seen several recurring issues being cited on sponsor licence suspension letters from the Home Office, some of which are set out below.

Inadequate right to work checks

There have been a number of instances where the Home Office have found sponsors to have undertaken inadequate right to work checks, resulting in a sponsor licence suspension. This could be where a partial or a non-compliant right to work check was taken and, in some cases, where sponsors have not carried out any right to work checks.

We often find the following being quoted by the Home Office:

"You have failed to demonstrate that you conduct adequate right to work checks. Although BRP and passports were provided post-visit to our COs, this does not change that fact that you have failed to complete adequate right to work checks in line with the current guidance.

We are therefore not satisfied that you have a suitable system in place to check the right to work for your employees before they commence employment, to prevent illegal working and contribute to effective immigration control."

Where an organisation holds a sponsor licence, they have an obligation to carry out compliant right to work checks. The Home Office need to be satisfied that the organisation has a fully effective system in place to prevent illegal working and systems in place to monitor visa expiry dates.

As right to work checks are often picked up as an area of concern, it is important to ensure that sponsors comply with the current right to work guidance, which is often updated by the Home Office. The checks must be done before the individual commences employment. The relevant evidence should be retained on file, as set out in Appendix D.

A number of organisations will have standard processes and policies regarding right to work checks. It is important to ensure that those tasked with carrying out the right to work checks are aware and follow their internal processes.

There are a number of ways to undertake a right to work check – it is important that those conducting the checks follow the correct process and procedure as set out in the guidance to ensure compliant checks are caried out. Further information is available in the Home Office guidance: Right to work checks: an employer's guide. The Home Office has also produced a useful right to work checklist, available here: Right to work checklist.

It is essential to provide regular training for HR staff on right to work check procedures and conduct periodic audits of staff files to ensure ongoing compliance.

Not paying workers the correct salary

There have been a number of recent instances (especially within the care sector) where sponsors have been found not to be paying sponsored workers the required salaries as set out in their Certificate of Sponsorship (CoS). A sponsor licence suspension may be issued in circumstances where salaries have been reduced without regard to the reporting requirements as set out in the sponsorship guidance.

In the example below, the sponsor provided the Home Office with copies of the sponsored workers' payslips which showed full time pay at £10.20 per hour and a rate of £2.55 per hour for shadowing (training). The Home Office responded to say:

"You have assigned Certificate of Sponsorship (CoS) to XXXX, confirming their annual salaries as £21,000 based on a 40-hour week, equating to an hourly rate of £10.20. This information is also confirmed within the contracts of employment.

"....it is clear from the payslips provided that you are failing to pay your sponsored workers the £10.20 as stipulated on their CoS or the minimum hourly rate of £10.10 when 'shadowing'."

Sponsors should regularly review employment contracts and salary levels to ensure they align with the commitments made in the CoS. A report via the Sponsor Management System (SMS) must be made where a sponsored worker's salary is reduced from the level stated on their CoS.

Failure to keep complete records

One of the most frequently cited issues in suspension letters is the failure to adhere to sponsorship duties, particularly in the areas of record-keeping, with sponsors not maintaining accurate records of their sponsored workers.

In the example below, the sponsor did not retain the relevant document regarding recruitment:

"You have failed to retain and provide evidence relating to the recruitment of your sponsored workers, demonstrating that you do not have a system in place to retain recruitment evidence for all your sponsored workers..."

Appendix D sets out the documents sponsors must retain on file. Sponsors should regularly review the guidance and ensure that they retain relevant documents on file. We have set out a recommended approach in our previous article: Which documents should you keep for sponsored workers?

Genuine vacancy concerns

Sponsors must satisfy the Home Office that they are offering genuine employment. The issue of genuine vacancy is being cited in the Home Office suspension letters more frequently.

An applicant may not meet the genuine vacancy requirement where, for instance, the organisation assigns a CoS to a worker who does not meet the required criteria for a role or issues the wrong type of CoS for a given job role. Genuine vacancy concerns may also arise where the Home Office take the view that another Occupation code is more appropriate, or that incorrect information has been provided in order to identify with a specific Occupation code.

Recent examples include the Home Office stating:

"You appear to be issuing CoS to migrants without fully determining their suitability for the role..."

"We are therefore not satisfied that you are assigning CoS to sponsored workers who do not meet your own offer of employment letter."

"At the time of the visit our compliance officer requested evidence of the care work which has been conducted by these workers. You provided our officer with a staff activities report which did not show any examples of the work these sponsored worker have undertaken... Therefore due to the lack of information and evidence received regarding the work undertaken by the above sponsored workers we are not satisfied that the roles of Healthcare Assistant represent a genuine vacancy within your organisation."

In another example, the Home Office stated:

"Our records confirm that you currently employ the following individuals as a Health Care Workers under standard occupational classification (SOC) CODE 6141, Nursing auxiliaries and assistants – Band 3 equivalent:...

During the visit you told our officer all roles are carer positions. We therefore believe you have used an inappropriate SOC code when assigning the above CoS."

In addition to the genuine vacancy requirement set out in the sponsorship guidance, a genuineness requirement was also incorporated into the Immigration Rules (paragraph SW 14A.1).

It is important for organisations to ensure that they are able to meet the genuine vacancy requirement. Organisations should ensure that job descriptions are detailed, reflecting duties and responsibilities of the position, and that all eligibility criteria are thoroughly reviewed before issuing a CoS.

Other issues

Other issues also cited in sponsor licence suspension letters include:

• Non-compliance with wider UK law (other than immigration law), such as National Minimum Wage, the Working Time Regulations, and (where required) enrolling employees on a pension scheme.
• Not reporting a change to the start date via the SMS.
• Not maintaining historic contact details or ensuring that the contact information is kept up to date.
• Level 1 User assigning a CoS to a close relative (e.g, partner, brother etc).
• Overuse of occupation codes.

Importance of internal systems

During a Home Office compliance visit, they may assess whether the organisation has the HR systems in place to meet its sponsorship duties. They will focus on the following main areas:

• Monitoring immigration status
• Maintaining migrant contact details
• Record keeping and recruitment practices
• Migrant tracking and monitoring
• General sponsor duties

Businesses should implement robust HR systems that ensure that they can meet their sponsorship obligations. See also our article here on tips for keeping on top of your sponsor licence.

By understanding the common issues highlighted above, implementing robust compliance practices that align with the Home Office requirements, conducting regular training sessions for staff and undertaking periodic internal audits to ensure ongoing compliance, businesses can significantly reduce the risk of having their sponsor licence suspended.

Where an organisation has received a suspension letter, it is very important to deal with every issue raised by the Home Office and prepare a comprehensive response and representations against the allegations made.

It is also important to ensure you seek legal advice at the earliest stage possible, as any further documents and/or information provided to the Home Office upon their request, can often have the effect of raising further concerns to the Home Office.