Dealing With A Tier 2 and 5 Sponsor Licence Suspension
All Tier 2 and Tier 5 Sponsors can expect at least one compliance visit from the Home Office during the lifetime of their Sponsor Licence. The purpose of the compliance visit is to check that a sponsor can meets its sponsor compliance duties. If the Home Office is not satisfied that the sponsor is complying with its duties then it may suspend the Sponsor Licence with a view to permanently revoking it. Before the licence is revoked, the sponsor has the opportunity to make representations while subject to a sponsor licence suspension.
Revocation of a sponsor licence can have serious consequences for any organisation. It is difficult to get a licence back once it has been revoked so the response to the suspension is critical.
How do I prepare the sponsor licence suspension response?
If you are subject to a sponsor licence suspension, the first thing you should do is request copies of the notes from your compliance visit; the Home Office should give you copies of all interviews undertaken on the day, as well as the compliance report. If you have had any previous visits you could also request copies of these notes.
Second, seek legal advice. You are not required to respond through a lawyer, but an experienced lawyer will be able to give you guidance on whether the Home Office have applied the correct law, and advise on what evidence you need. Waiting to see if your licence is revoked before seeking legal advice can be costly and risky: by the time it is revoked the problems may be too serious to have it reinstated.
You and your lawyer will need to go through the suspension letter in forensic detail. The suspension letters sent by the Home Office are usually lengthy and quote extensive extracts of the Tier 2 and 5 Sponsor Guidance. However, you will usually find that between the quotations there are a few key issues raised, some of which may have the same underlying cause (e.g. incomplete record keeping).
Every single allegation raised needs to be addressed and your case supported with evidence. You may have been asked for documents in the response. It is important to provide these and ensure they are consistent with other material, or that any inconsistencies are explained.
Responses should be professional and courteous. At this stage, you are asking for the Home Office to reinstate a privilege, a Sponsor Licence, and need to convince them that your organisation can be trusted to cooperate with the Home Office in maintaining immigration control. Legal representatives have been criticised by the courts for adopting inappropriate confrontational stances in these cases, and exacerbating the problem.
When do I need to respond to the sponsor licence suspension by?
The letter will specify a timescale for response, usually 20 working days. This sounds like a long time but if there are several allegations, or a lot of workers, time can run out quickly. It is also best to get your response submitted as soon as possible to minimise any suspicion that you have manufactured your evidence.
The Home Office are right, we have made some mistakes. Is our case hopeless?
Not necessarily. It depends on the scale, number and type of breaches. The Home Office can be reasonable and will not usually revoke a licence for smaller issues that have been remedied or were a consequence of unusual events (for example, the person with responsibility for the licence was unexpectedly away from work for a long period). You will need to show evidence that the breach will not happen again: for example, a new policy to prevent the issue.
What happens after the response?
Decision times vary considerably and will depend on the size of your organisation, as well as the number and type of issues raised. Responses can be issued in a week, or in several months. Be prepared for a further compliance visit, which may be unannounced.
The response to the suspension will usually be one of three outcomes:
- Licence reinstated
- Licence downgraded to B rating. If this happens you will need to follow an action plan in order to ensure your licence is reinstated. If you fail to comply with the action plan your licence will be revoked.
- Licence revoked. If this happens you only have two options to hold onto your licence: negotiate with the Home Office or judicial review. Negotiation is only likely to work in limited circumstances and you will need to simultaneously prepare for litigation. The test for judicial review is high and you are at risk of paying the Home Office’s costs as well as your own, so expert advice is needed. If your licence is revoked you should seek advice immediately as it may be possible to obtain a court order to prevent the Home Office.
What about my sponsored migrants while my licence is suspended?
Migrants who already have their visas can continue to work for you, and enter the UK to work for you. However, anyone whose application is pending and would otherwise be granted will have their application held until a decision is made whether to revoke the licence. If your licence is revoked then workers may have their visas curtailed, and any pending applications sponsored by you will usually be refused.
Contact our Business Immigration Barristers
For expert advice and representation in relation to a Sponsor Licence Application, Sponsor Licence Refusal, Sponsor Licence Suspension or Sponsor Licence Revocation, contact our immigration barristers on 0203 617 9173 or complete our enquiry form.
