The UKBA requires sponsors to ensure that those working or studying at their organisation have the necessary permission to do so.
In its sponsor guidance, the UKBA states that the two fundamental principles upon which sponsorship is based are that:
- those who benefit most directly from migration (employers, education providers or other bodies that bring in migrants) help to prevent the system being abused; and
- those applying to come to the UK to work or study are eligible to do so and a reputable employer or education provider genuinely wishes to take them on.
(Paragraph 1 of the tier 2 and 5 sponsor guidance and paragraph 19 of the tier 4 sponsor guidance).
One of the ways in which the UKBA expects sponsors to 'help to prevent the system being abused' is to avoid providing work or study opportunity to individuals who do not have lawful permission to be in the UK.
This position has been reinforced by the courts. Most recently in New London College  EWHC 856 (Admin) Mr Justice Williams found that:
'...the Claimant had failed to do all that it reasonably could to ensure that evidence was obtained or retained to demonstrate a student's entitlement to study. I appreciate that as of 5 July 2010 the numbers of students concerned with this issue [having valid leave to remain] was very small. However, on any view, ensuring that a student is entitled to remain in the UK must be a very important aspect of a sponsor's duty.'
We are increasingly finding that employers and education providers are falling foul of this obligation often through no fault of their own, due to unclear guidance on the matter.
One re-occurring scenario that we come across is where the employee or student’s application for an extension of stay is rejected as invalid (e.g. for errors with payment) and by the time they are notified of this their leave has expired. The employer or education provider will then be exposed to the risk of the UKBA taking action against them if they allow the employee or student to continue working or attending their institution with no leave.
To mitigate against this risk employers and education providers should ensure, in so far as possible, that applications for extensions are submitted in time and they should also keep records of this (for instance, a copy of the special delivery confirmation and evidence of any follow-ups on the progress of the application). We also recommend that sponsors make it a formal contractual requirement that sponsored employees or students must provide them with copies of correspondence submitted to and received from the UKBA in relation to their applications and that this is retained on the individual's file so the sponsor can prove that it is aware of the situation.
In cases where a sponsored individual applies for further leave to remain out of time (i.e. once their original leave has expired) then during the period prior to the approval of the application, unless they otherwise have a valid reason to remain in the UK, they cannot be regarded as having permission to remain. Therefore if the sponsor continues to allow them to work or study during the period before the application is approved, it risks the UKBA taking action against its sponsor licence. This becomes particularly important if the application is subsequently refused.
Of course, where an individual is entitled to remain in the UK due to another reason, for instance, asylum, EU or human right's law, then this means that they can be regarded as having valid permission to be in the UK.
Despite taking action against a number of tier 4 sponsors that have been found to have been teaching students who do not have valid permission to be in the UK, and despite the courts upholding the UKBA's action, unfortunately the UKBA has not made its position clear on this matter in the sponsor guidance which is causing confusion and concern amongst sponsors and students. A number of bodies such as UKCISA and ILPA are lobbying the UKBA to create a system which is fair for both the student and the sponsor, especially where the out of time application can be approved under the immigration rules in any event and also in cases where the student has a strong reason for the period of time when they did not have permission or where there is uncertainty about this.
It is important that sponsors do not take action to terminate employment or studies until a full review has been conducted and the facts are clear. The issue of whether or not an individual does or does not have valid leave is often extremely complex and, in addition to compassionate aspects, there are often contractual considerations to deal with.