Sponsorship – what happens when it goes wrong?
26th March, 2018
Sponsors have a number of ongoing obligations and duties which they must comply with during the entirety of their licence.
To enforce compliance with these duties, UK Visas and Immigration (UKVI) can impose various sanctions upon sponsors in the event of non-compliance. These include a sponsor licence being downgraded, suspended or revoked. UKVI may also limit the number of Certificates of Sponsorship (CoS) that a sponsor can assign or withdraw any unused CoS. Below, we set out in more detail below how UKVI enforces sanctions for non-compliance.
Where UKVI believes that a sponsor is failing to comply with its duties, it can downgrade the licence from A-rating (which is given when the licence is obtained), to a B-rating. The following breaches will result in a mandatory downgrading:
- a sponsor has certified that a migrant will not claim state benefits, but that migrant does do so, with the sponsor’s knowledge;
- if it is found by compliance officers that a sponsor is not using a process or procedure necessary to comply with their sponsor duties;
- where UKVI has asked for information or documentation from a sponsor and they fail to provide this within the given time limit.
In all other cases, UKVI has discretion to downgrade a licence.
Where a licence is downgraded a sponsor cannot assign a CoS to a migrant until it has shown that it is committed to making improvements by entering into an action plan devised by UKVI and paying the associated fee. The action plan will be in force for up to three months.
At the end of this period, UKVI will carry out a compliance visit. If it can be shown that all of the requirements of the action plan have been met, the sponsor’s A-rating will be re-instated however if this is not the case, the licence will be revoked.
UKVI can suspend a sponsor’s licence where it believes there has been a breach in sponsor duties but may require more time to undertake further enquiries. Sponsors cannot assign any CoS whilst their licence is suspended.
Where UKVI suspends a licence without further investigation, it will set out in writing the reasons for suspension and the sponsor has 20 working days to respond by setting out any mitigation. UKVI will then provide a final decision.
If UKVI undertakes a full investigation, it will write to the sponsor informing it of this and the reasons for suspension. The Sponsor has 20 days to respond in writing. After the investigation has concluded UKVI will again set out its reasons for suspension which the sponsor is invited to reply to before UKVI provides its final response.
There are a large number of instances where UKVI will mandatorily revoke a sponsor’s licence. These include where a sponsor has provided false information to support its application, has employed a migrant that does not meet the relevant skill level and failures in respect of carrying out the Resident Market Labour Test.
If the revocation is mandatory, the Sponsor cannot appeal the decision and will not be able to re-apply until a cooling off period has come to an end.
When a licence is revoked, UKVI will curtail any sponsored migrants’ permission to stay in the UK, usually to 60 days (or less if the migrant has fewer than 60 days leave remaining). If UKVI believes that the migrant was complicit in the breach, it will curtail permission to stay in the UK with immediate effect.
If revocation has occurred, the only option for organisations to have their licences reinstated is to pursue judicial review through the courts.
Employing illegal workers
Further to complying with specific sponsor duties, all employers have a duty to ensure that their employees have the right to work in the UK. Failure to comply with this duty and the imposition of a civil or criminal penalty can result in the sponsor licence being revoked.
As outlined above, UKVI has a wide range of powers, which if imposed, can have an extremely disruptive effect on organisations and migrants alike. Having a sponsor licence downgraded or revoked can be costly, and organisations may have few options for challenging final decisions. Therefore, the importance of investing in compliance should not be underestimated, as prevention is far easier than cure.
If you or your business requires assistance with compliance as a sponsor of migrant workers, including training or compliance audits, please contact one of our immigration experts who will be happy to assist further.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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