Revoking a company licence to sponsor non EEA migrant workers
Many companies think that it is hard work to successfully apply for a licence to sponsor non EEA migrant workers. That is something that many top London immigration solicitors would agree with. Imagine therefore if your company found itself the subject of a Home Office investigation culminating in the revocation of the company licence to sponsor non EEA migrant workers. That is what happened to the company, Liral Veget Training and Recruitment limited. They appealed, by way of an application for judicial review, against the Home Office revocation of their Sponsor Licence and the case is reported as R (Liral Veget Training And Recruitment Ltd) v Secretary of State for the Home Department [2018] EWHC 2941 (Admin). The company application to challenge the revocation of its licence to sponsor non-EU migrant workers failed with the court upholding the Home Office decision.
To the best London immigration solicitors, the court case reads as a salutary warning to employers about the importance of following Home Office rules and regulations on the operation of sponsor licences and the importance of taking top London immigration solicitors’ advice to maintain a company’s licence rating. The company had wanted to employ migrant workers in skilled roles including the roles of business development manager, company accountant and human resources manager. All professional roles for skilled workers, so initially the best London immigration solicitors would not have envisaged a difficulty with issuing certificate of sponsorships for the migrant workers provided that all the relevant UK Visas and Immigration rules were complied with.
The sponsorship rules on employing non EEA migrants
In order to employ non EEA migrants the company either had to:
• Recruit migrants for job roles on the Shortage Occupation List; or
• Comply with the Resident Labour Market Test.
The Resident Labour Market Test involves advertising the job role in the UK to settled workers with an additional requirement that a company must employ a suitable settled worker if there is someone who has the minimum qualifications to fulfil the job role. This rule applies even if there are non-EEA migrant workers who do not just meet the minimum job specifications but instead exceed them.
The company, Liral Veget Training and Recruitment limited, issued certificates of sponsorship to the 4 Tier 2 (General) visa applicants. The UK Visas and Immigration requirements specify that jobs offered to Tier 2 (General) visa scheme applicants must be skilled occupations. The precise guidance states that the job role must be:
• At a level at or above Level 6 in the National Qualifications Framework (NQF); and
• The job cannot be offered to a migrant worker from outside the EEA unless the employer is unable to fill the job with a suitable settled worker.
The Home Office case
The Home Office case was that the work done by the 4 migrant employees was not skilled work that met the job specifications of company accountant, human resources manager and business development manager. The Home Office came to this view as a result of an unannounced compliance inspection visit and interviews with the employees. It was the opinion of the Home Office officials that the work being undertaken by the migrant workers was more akin to administrative or secretarial work rather than managerial job roles and accordingly the workers were not employed in jobs at a level at or above level 6 in the National Qualifications Framework.
Following the Home Office compliance inspection the Home Office concluded that the jobs the migrant workers were undertaking did not comply with the certificates of sponsorship. The decision was taken to revoke the Sponsor Licence, which not only affected the employees, but the company’s ability to recruit non EEA migrant workers for future suitable job roles.
The judicial review of the Home Office decision to revoke the Sponsor Licence
top London immigration solicitors advise companies that it is not possible to appeal against a Home Office decision to revoke a Sponsor Licence. The only available legal remedy is to apply for a judicial review of the Home Office official’s decision to revoke the Sponsor Licence. The high court judge hearing the judicial review application decided that, on the face of things, the Home Office official’s conclusions, based on their compliance visit and interviews with the migrant employees, could not be said to be procedurally incorrect or irrational. Accordingly, the court dismissed the judicial review application. The judge specifically stated that it was incumbent on employer companies to be scrupulously accurate in the preparation and content of certificates of sponsorship. Consequently, the Sponsor Licence of Liral Veget Training and Recruitment limited remains revoked.
top London immigration solicitors have called for employers to be able to appeal against the decision to revoke or downgrade a Sponsor Licence on the basis that an appeal is easier to pursue than an application for judicial review.
Lessons to be learnt from the case
London immigration solicitors consider that the following general principles can be extracted from the case, namely:
• The importance of preparing an accurate job description for the job role; and
• Reviewing the migrant employee’s role if the work undertaken by them does not match the original job description on which the certificate of sponsorship was based; and
• Notifying the Home Office if the migrant’s job role is different to that originally anticipated, i.e. that it does not match the skill set in the advertised role and the certificate of sponsorship; and
• If a compliance audit takes place, it can be unannounced and can involve interviews with migrant workers. The workers therefore need to know what their job title and job specification is; and
• If a compliance audit takes place, the company employer can be asked to produce evidence of the nature of the work being carried out by the non EEA migrant workers; and
• Proactive communication with the Home Office and preparation of key personnel for potentially unannounced compliance visits is extremely important.
OTS Solicitors regularly advise on all aspects of business immigration and have substantial expertise in advising on applying for Sponsor Licences and successfully maintaining Sponsor Licences for employer companies as well as the management of Sponsor Licences and representation in resolving Sponsor Licence difficulties. OTS Solicitors expert advice on business immigration is recognised by the legal directory of leading UK lawyers, Legal 500. The firm is ranked for business immigration services. In addition, OTS Solicitors have Law Society accredited solicitors’ status as trusted specialists in Immigration law.
For more information on Sponsor Licences or any other aspect of business immigration law, please call us on 0203 959 9123 to arrange an appointment to speak to one of our experienced London immigration solicitors who will be happy to help.