The Home Office regularly publishes on its website details of the number of Sponsor Licences it revokes and carries out arrests pertaining to illegal workers and the resulting potential civil liabilities/hefty fines employers could face as a result of not complying with the law. This ‘naming & shaming’ activity by the Home Office clearly demonstrates that there are many operations being carried out by them and that there has been a substantial increase in enforcement action.
Previously, the Home Office would notify employers (both pre and post being granted a sponsor licence) prior to turning up to assess their HR systems/ processes, record keeping activities and files for their migrant employees. However, the vast majority of visits are now being carried out unannounced. Employers are not normally informed in advance of the audit and as we have experienced, this has a tendency to catch employers off-guard. This means that all employers holding a Sponsor Licence will have to ensure they maintain a consistently high standard in maintaining their HR systems/processes at all times and keep the information on Sponsor Management System (SMS) up to date for all of their migrant employees. The threshold set by the Home Office in ‘Record-keeping’ duties by an employer is particularly very high and cannot be overlooked.
According to the Home Office, all Sponsor Licence holders are required to have in place appropriate HR systems/processes in order to comply with their obligations as a Sponsor. They need to be able to demonstrate that they have methods of appropriately monitoring and recording the activities of their migrant workers. If the standard of a Sponsor’s HR system is deemed to be lacking by the Home Office or if Certificates of Sponsorship (CoS) have been issued erroneously, the Sponsor could be subject to high fines and even have their Sponsor License revoked. Upon revocation, all migrant employees would have to leave the UK, irrespective of their seniority within the organisation or find another suitable employment with appropriate visa within 60 days.
The main five areas in which Sponsor Licence holders need to show compliance are:
Area 1: Monitoring immigration status and preventing illegal employment.
Area 2: Maintaining migrant contact details.
Area 3: Record keeping duties.
Area 4: Migrant tracking and monitoring.
Area 5: Recruitment practices and Professional registrations and accreditations.
Having previously carried out numerous ‘mock audits’ with several employers and education institutions registered under all categories of the Points Based System (including Tiers 2, 4 & 5), we have seen that most display knowledge of the requirements they must meet. However, very few actually show the ability to fully comply with the requirements the Home Office would want to see. The bulk of them cannot on first attempt show the ability to prevent illegal working sufficiently.
We were recently approached for advice and assistance by an employer whose Sponsor Licence had been revoked by the Home Office. One of the reasons for revocation amongst others was that they had assigned a CoS to one of their migrant employees using the wrong Standard Occupational Classification (SOC) code i.e. the migrant employee was doing a job different to the one stated on the CoS. This also meant that the worker had to leave the UK and was subject to 12 months cooling-off period. Additionally, as a result of the revocation, all of their migrant employees had to either leave the UK or find another suitable employment with appropriate visa within 60 days. As per Para 23.24 of the Tier 2 and 5 Sponsor Guidance: “We [the Home Office] can cancel a CoS assigned by you [the employer] if we find that it should not have been assigned, for example if it was assigned through misrepresentation.”
Looking at the current trend, we would strongly recommend having a mock audit carried out regardless of the level of confidence you have in your HR systems, visa tracking proecdures and maintaining work and contact details of migrant employees. A mock audit involves carrying out an in-depth assessment of your current HR processes and migrant employee files and how your current systems can be utilised in order to demonstrate full compliance with the Home Office’s regulations along with any recommendations on how you can improve.