Few HR directors and/or employers fully contemplate how complex, detailed and time-consuming UK Sponsor Licence compliance obligations and audit preparations are. One of the best ways to ensure time spent on Sponsor Licence compliance is minimised is to instruct an experienced immigration solicitor to manage the process for you, from beginning to end.
The level of compliance required by UK Visas and immigration, especially when an audit is being done, can be intimidating for those new to the Sponsor Licence holders regime. To provide assistance, we have collated answers to some of the most common questions we are asked by our clients regarding compliance and Home Office visits.
Why do the Home Office impose such onerous compliance obligations on UK Sponsor Licence Holders?
There are several reasons why Sponsor Licence compliance obligations and Home Office audits are so onerous, including:
- the British government has a mandate to reduce immigration drastically within the next few years so there is an element of making the process hard enough to discourage all but the most serious applicants against applying for a Sponsor Licence
- employers have an obligation to prevent illegal workers from being employed in their organisation and thereby remaining in the country illegally
- UK Visa and immigration need to ensure that Certificates of Sponsorship (CoS) are only issued for genuine vacancies, which is why a genuineness test is applied to all UK Sponsor Licence applicants who request a CoS
The best step HR directors need to take before applying for a Sponsor Licence is to understand the duties and responsibilities of a licence holder and have a mock audit conducted on existing HR systems by an immigration lawyer. They will quickly alert you to any weaknesses in your systems which may affect your company’s ability to comply with the record keeping duties under Appendix D of the Sponsorship Guidance, and right to work checks.
What are the main record keeping duties under Appendix D?
Below are examples of some the records which must be obtained and kept by HR departments for migrants sponsored under Tiers 2 and 5:
- A copy of each sponsored migrant’s current passport pages showing all personal identity details (including biometric details), leave stamps, or immigration status document including their period of Leave to Remain (permission to stay) in the UK. This must show the migrant’s entitlement to work for you as a licensed sponsor.
- A copy of the migrant’s biometric residence permit (BRP)
- A copy of the migrant’s National Insurance number
- All the migrant’s contact details (these must be kept up to date)
- How often the migrant is absent from work
- The details of any Resident Labour Market Test conducted
- Copies of the migrant’s payslips, clearly showing their name, NI number, tax code, any allowances paid and deductions made
The keeping of these and the other required records will also support highly-skilled Tier 2 migrants’ compliance obligations and duties under Appendix D of the Immigration Rules. This is particularly important should they choose to apply for a Tier 2 visa extension.
What is meant by migrant tracking and monitoring?
Migrant tracking and monitoring help the Home Office check that illegal workers are not present in the country.
Managers must report to key personal if a sponsored migrant has been absent from work for five consecutive days without explanation. Key personal must then make efforts to contact the missing co-worker using contact details and next-of-kin information.
If the migrant cannot be found, their absence should be reported through the Sponsorship Management System, as should any significant changes to their pay and/or conditions.
What is involved in a Home Office audit?
In practice, start-up businesses, particularly when applying for a Tier 2 Sponsor Licence, will very likely be visited prior to their licence application being approved and this needs to be factored into any time estimates and expedition requests. This will also be the case where a business has a history or alleged history of previous immigration or related non-compliance, or where an organisation is a 'virtual business', ie one with little or no physical office space.
If a sponsor or applicant organisation receives notice of a compliance visit, they should carry out an internal audit and an immigration solicitor should carry out an external audit if this has not been done recently to double check that their relevant Human Resources (HR) systems and record keeping remains compliant and, if necessary, to action any changes or reports that need to be made prior to visit.
However, it is important to note that you may receive no notification of a Home Office audit. Therefore, it is best practice to have an experienced immigration solicitor conduct a mock audit of your HR systems every six months so you can be confident no weaknesses and/or non-compliance will be found.
You should have copies of the following documents always to hand:
- The application for your Sponsor Licence and all the supporting documentation which was sent in with it
- Your tenancy agreement and any planning permission approvals or pending applications
- Your latest set of annual accounts
- Evidence of recent hires and details of any Resident Labour Market Tests conducted
- Evidence relating to the 'genuine employment' of prospective recruits and whether a 'genuine vacancy' exists
Should my immigration solicitor attend a Home Office audit?
It is recommended that a representative (this can be an immigration lawyer) attend the visit to:
- Make a note of all questions and responses
- Be able to clarify any factual errors or omissions made by the organisation’s key personal
- Challenge any incorrect assertions made by the visiting officer regarding the performance of sponsor’s duties and responsibilities
- where the visit is in more contentious circumstances, provide oral representations in relation to the application, eg where a previous licence application was refused to draw attention to the specific ways in which previous concerns have been addressed
Your representative cannot answer all questions on your behalf as officials will want to see that you know and understand your duties and responsibilities as a Sponsor Licence holder.
Sponsor Licence compliance and checks need not be daunting if your HR systems are adequate, you understand your duties and obligations, and you have prepared for any visits by the Home Office.
OTS Solicitors is one of the most respected immigration law firms in London. By making an appointment with one of our immigration solicitors, you can be assured of receiving some of the best legal advice available in the UK today. We can assist you with all aspects of Sponsor Licence and Tier 2 (General) applications.
If you wish to discuss any of the points raised in this blog, please phone our London office on 0203 959 9123
For the best expert legal advice and outcome on your UK immigration application, contact OTS immigration solicitors on 0203 959 9123 or contact us online.
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Posted on: Monday, 10 July, 2017