Sponsor Licence Audits and Compliance Visits Resume
In March 2020, as a result of COVID-19, sponsor licence compliance visits were suspended by the Home Office. However, these audits will now be re-commencing as lockdown restrictions ease across the United Kingdom.
Officers will comply with Public Health England (PHE) advice, including the wearing of Personal Protective Equipment, as appropriate, and the observation of social distancing measures. They will also comply with any safety measures that Sponsors have in place.
What triggers a Home Office compliance visit?
The Home Office can audit organisations that hold sponsor licences at random. However, if there are any causes for concern in an initial sponsor licence application, this can be a reason for visits to be carried out. The Guidance also states, ‘Compliance checks may be taken on the basis of a reasonable suspicion that you have breached your sponsor duties or are otherwise no longer suitable to hold a licence.’
Additionally, any applications (by the organisation or migrants) or actions on the SMS can also trigger an audit by the Home Office.
What are the Sponsor duties?
Sponsors should now begin to prepare for sponsor compliance visits, which may be on an unaccounted or unannounced basis. It is imperative that Sponsors ensure that they are acting in accordance with the new Worker Sponsor Guidance and Student Sponsor Guidance on sponsor duties and compliance. It may be that the Guidance has changed since they were last reviewed by the organisation, or indeed since the sponsor licence was applied for.
You must recall that the Home Office considers sponsorship to be a privilege, not a right, due to the benefits that Sponsors receive in being able to employ migrants who otherwise have no right to work in the UK. Significant trust is placed in Sponsors, who must comply with the law. Sponsors must prevent abuse of immigration laws and sponsorship arrangements; identify and address weaknesses in their policies and procedures which can cause any negative patterns of behaviour and identify these patterns; and monitor compliance with the Immigration Rules and the wider law.
For Sponsors of workers, their duties include reporting certain information or events to the Home Office through the SMS, record-keeping for each worker, complying with the law, and not engaging in behaviour or actions that are not conducive to the public good. It is important to ensure that matters such as Right to Work checks are being appropriately carried out in accordance with the Home Office’s extensive guidance.
You must co-operate with the Home Office and allow their staff to access any premises or sites under your control at their request. If the migrants are at a third party’s premises, it is your responsibility to ensure the third party is aware that the Home Office can carry out visits and checks at those premises.
What are the consequences of failing to comply with sponsor duties?
There are very serious negative ramifications for failing to comply with sponsor duties. These range from reducing allocations of Certificates of Sponsorship, to downgrading, suspending, or revoking the licence. Sponsored migrants’ permission to stay in the UK can be cancelled. Where they believe a criminal or civil offence has taken place, the Home Office will report this to the police or other relevant authorities.
The general attitude of the court is not very lenient to sponsors. It instead gives the Home Office a wide discretion as to whether their decision was reasonable. The Court’s general approach is that being a sponsor is a fragile gift and that the Home Office reserves the right to ‘maintain a fairly high index of suspicion’ and use a ‘light trigger’ in deciding with what severity the Home Office can act when faced with a breach.
How can businesses prepare for a Home Office compliance visit?
A Home Office compliance officer may want to:
- Verify information you gave in a sponsor licence application or a worker’s application
- Take photographs of the business premises
- Check you are complying with all of your sponsor duties, or will be able to comply if they visit you before your licence application has been decided
- Speak to any current or previously sponsored workers
- Speak to employees involved in recruitment of sponsored workers
- Inspect records and/or systems to ensure you are following your sponsor obligations and adherence to rules, such as those on record keeping set out in Appendix D of the sponsor guidance
- Conduct checks on other workers to ensure you are complying with your obligation to prevent illegal working
- Conduct checks (including criminal record and civil penalty checks) on key personnel, owners, directors, any person involved in your day-to-day running, or anyone else associated with you, such as employees in positions of responsibility and financiers involved in the running of your institution
- Check with HMRC to ensure you are paying your workers appropriately and in line with the Immigration Rules and sponsor guidance
If you have an announced visit, we would be happy to advise you regarding these duties and assist you by conducting a mock audit to ensure that your record keeping, and other duties are being carried out appropriately.
You will not be informed of the outcome of any visit during the compliance visit itself. However, you may request a copy of their notes/report from the visit. You may be requested to provide further information or documentation after the visit. After they have completed the checks, they will confirm the outcome of the visit in writing.
If you have been visited already, we can also advise on how to address any perceived or alleged discrepancies discovered during checks, and how to challenge any suspension or revocation of the licence.
Contact our Business Immigration Barristers
For expert advice and assistance with Sponsor Licences or compliance issues contact our business immigration barristers on 0203 617 9173 or complete our enquiry form below.
This article was co-written by Zoe Bantleman and Georgina Griggs.
