Sponsor Management Series – compliance as a sponsor of migrant workers
12th October 2017
In the second edition of our series on migrant worker sponsor management, we look at some of the obligations sponsors must adhere to.
Having a sponsor licence comes with a number of ongoing obligations imposed by UK Visas and Immigration (UKVI). Failure to comply with these may result in fines and the potential revocation of an employer’s sponsor licence, which has serious implications for the migrant employees sponsored by the employer.
UKVI operates a system of compliance checks, which may be announced or unannounced and can occur at short notice. During these visits, employers will be audited to ensure the obligations imposed by the sponsor licence are being met.
Given the onerous and complicated nature of this area and the serious repercussions of failure to comply, we would urge you to contact a member of our Immigration Team should you want further advice and guidance in this area.
Ongoing duties of a sponsor employer can be split into five core areas:
Sponsors must ensure they keep clear employment records and operate thorough HR processes. Should UKVI make a compliance visit, they may ask to see all relevant documents in relation to sponsored migrants and would expect these to be produced immediately.
This will include (where relevant) details of any recruitment practices to ensure that any roles allocated to migrant workers have been allocated after a valid resident labour market test.
Sponsors are under a duty to report any changes in the sponsored migrant worker’s circumstances, including:
- termination of employment;
- change of immigration status (for example being granted leave to remain as a spouse of a British citizen);
- promotion, change in core duties or change of salary;
- change of place of work.
A sponsor must also notify UKVI if there any major business changes, such as a takeover, merger or de-merger.
Compliance with relevant laws
This includes all UK employment law, as well as (for example) complying with data protection and any other regulatory requirements on the particular industry the business operates in.
Prior to an individual starting work, all employers (not just those sponsoring migrants) have a duty to ensure individuals have the right to work in the UK. All employers face a fine of £20,000 per illegal worker if they are found to be employing a migrant without the right to work. Further, if an employer has “reasonable cause to believe” they are employing someone illegally, UKVI has the power to bring a criminal prosecution, with the power to imprison directors for up to five years, as well to issue Closure Notices on employers with a history of facilitating illegal working.
UKVI will expect a sponsor to be able to produce right to work copy documents on demand. Sponsors will also be expected to have a system to keep track of visa expiry dates of their sponsored employees.
Ensuring sponsorship is for a genuine vacancy
Any migrant sponsored under a Tier 2 (General) visa will be assigned a Certificate of Sponsorship (CoS) for a specific vacancy. The vacancy must be a genuine requirement for the business, and the migrant should not be employed to undertake any other role within the business other than the one specified in the CoS.
Co-operation with UKVI
UKVI takes a proactive approach to ensuring sponsors’ compliance with their ongoing obligations. As such, it will expect the sponsor to allow it to conduct the visit and for any request for information to be complied with within any stated time limits.
Consequences for non-compliance
If a sponsor does not comply with its duties under the sponsor licence, it runs the risk of having its licence suspended whilst it is being investigated by UKVI.
During a suspension, the sponsor will be prevented from assigning a CoS to any new Tier 2 (General) hires. However the sponsor will still be required to comply with its obligations to the migrants. As such, until a licence is revoked the status of current employees is unaffected and they can continue to work for the sponsor.
Revocation of licence
If a sponsor licence is revoked, this will be effective across all tiers and categories under which the sponsor is registered, meaning that all non-EEA migrants will no longer be legally employed by the sponsor.
Any migrant who is found to have been complicit in the breach of the licence will have their leave to remain in the UK immediately revoked and any other non-EEA migrants will be given 60 days to either find alternative UK employment or face deportation.
If you or your business requires assistance with compliance as a sponsor of migrant workers, including training or auditing your compliance, 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.