Given the latest developments referred to above, tier 2 sponsors may be wise to fully review their compliance now to ensure they are not exposed should the UKBA decide to crack down on employers.
Employers need to become very familiar, if they haven’t already done so, with the prevention of illegal working guidance and, if they hold a tier 2 sponsor licence, with the UKBA’s sponsor guidance.
To sponsor migrant workers from outside the EEA, the UKBA requires the licensed sponsor to play a part in ensuring the system is not abused. Sponsors therefore must comply with certain duties in order to retain their licence and continue sponsoring migrant workers. The UKBA explains in its sponsor guidance that the reason for sponsors to remain compliant are to:
- prevent abuse of the assessment procedures;
- capture any patterns of migrant behaviour that could be of concern;
- address any weaknesses in the existing procedure; and
- monitor migrants' compliance with the current immigration rules.
Your duties as a sponsor begin when you are issued with a sponsor licence. Your responsibility towards the sponsored worker will only then cease when the UKBA is notified that the worker has ceased to be in employment, leaves the UK and their leave to enter to remain in the UK lapses or where the sponsored migrant is granted leave to remain to work for another sponsor or they 'switch' to another immigration category. A sponsor's responsibility also ceases if the sponsor surrenders their licence or the UKBA withdraws it.
There are some duties that all employers must adhere to whether they are employing migrant workers from outside the EEA or not. All employers must carry out prevention of illegal working checks on all employees prior to commencement of their employment. The employer must also retain a copy of the document(s) showing the employee's right to work in the UK as specified by the UKBA. As part of the sponsorship duties the employer must also retain the sponsored employee's contact details which must be kept up to date at all times. UKBA visiting officers always check whether the right to work checks have been conducted correctly and that there is evidence that these were carried out prior to commencement of employment. Failure to meet your duties in this regard could lead to civil penalties being imposed and this may also lead to the UKBA taking action against the sponsor licence.
The sponsoring employer is also under an obligation to report migrant activity using the Sponsor Management System (SMS). For example, if a migrant worker does not show up for work on their start date, the employer must report the reason for this on the SMS within ten working days of the event. If a migrant employee is absent from work for ten consecutive days without prior permission from their employer, then this must also be reported on the SMS within ten working days of the tenth day of absence. There may be circumstances where a sponsored migrant worker's employment finishes sooner than was envisaged on the certificate of sponsorship. This should also be reported within ten working days. In these circumstances, the employer is required to provide details of any new employer if it was known to them. An employee's immigration status may change where they 'switch' to another immigration category, for example if they were to get married to a British citizen. This must also be reported on the SMS within ten working days. If there are significant changes to the sponsored migrant's circumstances such as a promotion, or change of job title, salary level changing (other than annual increases), which could be due to maternity leave, paternity leave or long term sickness, this must also be reported on the SMS.
It is not only changes to the employee's circumstances that must be notified on the SMS. If the employer changes the employee's location of work, or if they believe an employee is breaching their conditions of stay in the UK, this must also be reported within ten working days. If an employer becomes insolvent, or ceases trading then this must also be reported. However, the sponsor has 28 days to do this. This list is not exhaustive and sponsors are advised to check the sponsor guidance and ensure that their systems alert them to report these changes.
The UKBA can take action against the sponsor for failure to meet their obligations under the sponsor licence. There are occasions where the UKBA may give the employer a written warning explaining that close attention will be paid to them to ensure that they are complying with their duties. The sponsor's licence could also be downgraded from A to B; the practical impact of this would be that the employer would no longer be able to sponsor new employees. Failure to implement the UKBA's action plan will also lead to the UKBA withdrawing the licence.
More severely the sponsor could have their sponsor licence revoked by the UKBA, the consequence of which would be that they would no longer be able to sponsor migrant workers from outside the EEA or to continue sponsoring existing migrants. The UKBA is also able to serve on the spot fines of £10,000 per illegal migrant found to be working for a sponsor and/or imprisoned for up to two years in addition to receiving an unlimited fine.
If an employer were to be convicted of knowingly employing illegal migrant workers, then the consequence of this could be that they could be disqualified or barred from being a company director or even from managing a company.
Sponsors should ensure that any staff member who deals with personnel or the SMS has read and understood their obligations under the sponsor licence and that any issues of compliance are addressed immediately.
For a full copy of the current tier 2 sponsor guidance, please click here.