Organisations that hold a licence to sponsor migrant workers from outside the EEA have agreed with the Home Office to fulfil certain duties. The objectives of the duties are to prevent abuse of the immigration system, capture any patterns of migrant behaviour that may cause concern, address possible weaknesses in process, and monitor compliance with Immigration Rules. Duties that apply to all sponsors include record keeping duties, reporting duties, complying with the law, having a genuine vacancy for a migrant worker, and co-operating with the Home Office.
The duty to co-operate with the Home Office means allowing Home Office staff full access to any premises or site under your control, on demand. More often than not Home Office compliance visits are unannounced. Occasionally prior notice is given and of course this is advantageous. However, any notice will be short and therefore best practice is of course to be prepared at all times!
The purpose of the visit is for the Home Office to ascertain if you, as a sponsor, are complying and are able to continue to comply with your duties and responsibilities as a sponsor.
As you would in any event, you should remain polite and helpful during the visit. Although hosting a visit is probably the last thing you need on top of an already long to-do list, it will go more smoothly if you are accommodating and helpful in dealing with the Officer's requests. The attitude of a sponsor's staff can have an impact on the Compliance Officer's visit!
It is helpful if you can have someone take notes of the interviews that are conducted during the visit. This can be your legal representative if you wish. It is helpful to take notes in case there is any later dispute over what information was disclosed.
Any changes to the company's details must be kept up to date on the Sponsorship Management System (SMS). Particularly important is the company's address. If the Compliance Officer turns up to an old address because the SMS has not been updated, he will immediately become suspicious of what else you have not told him.
Ideally all people fulfilling key roles should be available on the date of the inspection, but most definitely the Authorising Officer who has overall responsibility for all overseas migrant workers.
The Home Office will want to see that you have human resources systems in place that enable you to comply with your sponsor duties. The information can be stored manually or electronically (e.g. on a laptop). Either way, we suggest a file is opened for each worker that includes the following:
- A schedule setting out name, date of birth, work start date, immigration status, leave to enter and expiry dates
- Details of UK residential address, telephone number, mobile telephone number, and a system for keeping the same up to date
- Contract of employment and job description
- Copy appraisal forms and evidence that the migrant can do the job they are sponsored to do
- Payslips and National Insurance number
- Right to work documents, e.g. passports, immigration status documents; biometric residence permits
- Details of any Resident Labour Market Test undertaken
- Record of the migrant’s absences
Your HR system should flag:
- when any permission to work in the UK expires - this may be by a record in an Outlook calendar, a diary, an excel spreadsheet or database, for example;
- if a worker's place of work will change;
- if a migrant fails to arrive for their first day of work;
- if a migrant has 10 consecutive days of unauthorised absence.
Even if you do not currently have migrant workers, the Compliance Officer may request to see the above in respect of non-migrant workers, to gain an understanding of what records you keep and how you keep them.
You should have an up to date employer's liability insurance certificate and health and safety certificate displayed at the place of work.
The Compliance Officer may choose to interview your staff. They are likely to want to speak to any Tier 2 workers. This will enable the Compliance Officer to verify any specific employee details directly with the worker, for example their salary and duties and responsibilities. This will be to ensure that they are carrying out the role and work in line with the information provided when the Certificate of Sponsorship (CoS) was assigned. It may be helpful to reprint the CoS and provide the migrant with a copy so that they can refresh their memory of the specific tasks and duties reported to the Home Office. If there are any changes to the salary and job details since the CoS was assigned, these should have been updated via the SMS.
After the visit, the Compliance Officer will prepare a report which is submitted to the case working team at the Home Office.
The outcome of a visit can have serious repercussions. If the Compliance Officer is not satisfied with the information provided and with the results of their searches, they could refuse a licence application, or downgrade, suspend or revoke an existing sponsor licence. A worker's permission to be in the UK to work would be curtailed. If your licence is downgraded, you would be required to pay a fee to put an action plan in place that addresses the problematic issues. If your licence application is refused, or your licence is revoked, you may be subject to a six month 'cooling off' period before you can apply again.
Can your organisation afford not to take a few small steps to put the right systems in place to ensure it passes a Home Office compliance visit?