In the recent case of Country Court Care Ltd & Ors v Secretary of State for the Home Department  EWHC 2054 (Admin) (17 July 2015), it has again been highlighted that a sponsor licence is a privilege and not a right.
In this case, the Tier 2 licence was suspended and then revoked on three grounds. The two reported grounds were:
- Failure to update the status of workers
- Failure to provide accurate 'working at' information.
Failure to update the status of workers
The Tier 2 sponsor had failed to comply with reporting duties in respect of seven workers who left its employment. The most notable failure was the failure to report a Tier 2 migrant who had left employment in December 2013.
The sponsor had argued that the failure to report had been a system error and that new procedures were being put into place.
In the letter notifying the sponsor of revocation of its licence, the SSHD stated:
"Your failure to ensure that the correct reporting was carried out on the correct systems is a serious breach of your sponsor duties and severely hinders UKVI in its duty to maintain effective immigration control."
The judge agreed with the SSHD and concluded that it was proper for the SSHD to take the view ”that the system of immigration control depends on accurate and timely reporting by sponsors of the whereabouts and employment status of migrant workers they sponsor.”
Failure to provide accurate 'working at' information
Here it was alleged that the sponsor had failed to report within the required timescales when sponsored workers had moved to work at an address different from the one stated on their CoS. Each CoS issued to a sponsored worker bore the sponsor’s head office address as their main work location when they were, in fact, based at numerous locations.
The sponsor had argued that: "The sponsored workers CoS's refer to all of the addresses at which they work under the 'Other regular work addresses in the UK' heading". In addition, the sponsor also argued that, as the migrants moved around different locations on a daily basis, “in these circumstances the location of employment should be treated as the head office”.
The SSHD had concluded that:
"Of the 190 CoS you have assigned throughout the life of your licence, only 8 CoS contain a work address which is not that of your head office… Of these 8, only one CoS lists more than one of your branches as a regular 'other' work location, therefore we are not satisfied that the statements made by you and your representative are factual. For this reason, we believe that you have provided false information to us.
“… your sponsored workers are clearly not all based at your head office address … We have not been provided with any evidence or explanation as to why all your sponsored workers would be required to move between homes with such frequency as to exempt you from your reporting duties, nor do we find it credible that such moves would occur on a 'daily' basis."
The judge concluded that, as the employer of the sponsored workers, the sponsor possessed the information necessary to identify where its staff had worked and whether this was accurately recorded on the CoS. In addition, the judge stated that the SSHD was entitled to conclude that false information was knowingly provided in the respect of the work locations and information on the CoS.
Consequently, the application for permission was dismissed and the revocation of the licence has been upheld.
It is important that sponsors not only know their sponsor duties but that they have robust systems in place to make sure that they can comply with their sponsor obligations within a timely manner. Yet again we have seen the court reaffirm its position that the principles applicable to 'Tier 2' and 'Tier 4' Points-Based Systems are similar. The watchword for both is 'trust' and the authority to grant a certificate CoS or CAS is a privilege which carries great responsibility. The sponsor is expected to carry out its responsibilities "with all the rigour and vigilance of the immigration control authorities."
Where a sponsor has sponsored a migrant worker to come to the UK, it is the sponsor’s responsibility to report when the migrant has left their employment. We are aware that UKVI can take up to six months to action a report, nevertheless it is the sponsor who must make sure that it takes action within the relevant time period.
Sponsors who require migrants to move between various locations must make sure that all relevant locations are recorded on the CoS. In addition, any location changes must be reported on the SMS.
UKVI expects sponsors (amongst other things) to know at all times who they are sponsoring, why they are sponsoring them, where they are and when they start and leave employment and to update the SMS accordingly.
To read a full summary of the case click here.
With compliance action on the increase, sponsors must make sure that their systems are up to date and they are fully abreast of UKVI changes. The Penningtons Manches immigration team provides advice on compliance, can also assist with training HR staff and carry out compliance audits.