With the end of the Brexit transition period nearly upon us (as at the time of writing in mid-November 2020), many businesses will have already applied for a sponsor license from the Home Office to allow them to recruit staff from outside of the EU. Companies which have held sponsor licenses for some time know that it is one thing to secure a sponsor license, it is another to keep hold of it. This is because the Home Office places strict requirements on license holders to remain compliant with their duties at all time, with even a single breach potentially leading to its suspension, downgrading, or revocation. In either event, they will then be unable to recruit new employees from outside of the UK, and they may lose their existing foreign workforce whose visas may be curtailed (the expiry date brought forward). In this article, we will outline how UK businesses with sponsor licenses can prepare for a Home Office compliance audit, to ensure that they can retain their right to recruit staff from outside of the UK.
What Are The Sponsor License Compliance Obligations?
Before being granted a sponsor license, companies are required to show that they have the necessary processes and systems in place to meet their legal responsibilities. Sponsoring employers are responsible for:
- Checking that foreign workers they recruit have the skills, qualifications or professional accreditations needed to fulfil their roles
- keeping records including copies of passports, right to work checks, qualifications, employee contact details, and resident labour market tests
- assigning certificates of sponsorship to eligible workers
- reporting to UK Visas and Immigration (UKVI) if a sponsored worker is not complying with the conditions of their visa
- nominating key staff to manage the Sponsor Management System (SMS) and keeping this regularly updated
What Is A Home Office Compliance Audit?
The Home Office may carry out initial and ongoing compliance audits of UK licensed sponsors (and applicants) to ensure that they are adhering to the immigration rules. These checks are also carried out to ensure that companies are not hiring illegal workers, and if they are, appropriate action is taken. Audit visits may be either announced or unannounced, meaning that sponsor license holders need to be prepared and ready for a visit at any time, and be able to satisfy the Home Office that they are compliant. The Home Office will ask a series of questions and ask to see evidence of your record keeping.
What Will The Home Office Check During A Sponsor License Compliance Audit
During the visit, you can expect that the Home Office compliance officer will check:
- The information provided in the initial sponsor license application is correct
- You have human resource and recruitment systems in place to meet the obligations of a sponsor license holder
- Right to work checks are being carried out for all employees
- The sponsor management system (SMS) being used and updated correctly, and within the prescribed timescales of any changes
- Key SMS users (including a key contact, level 1 user, and level 2 user) have been nominated and updated where needed (for example, if a key user leaves and needs to be replaced)
- Valid resident labour market tests have been carried out where needed
- That the business only employs migrants who are appropriately qualified, registered or experienced to do the job
- That certificates of sponsorship are for genuine vacancies only
- You are paying sponsored workers at or above the appropriate rate including specific permitted allowances for that job
- Sponsored workers are doing work which aligns with the type of license provided
- Up to date information is being kept on employees (including contact details, and copies of passports, biometric resident permits, and registration documents)
- Attendance records of all sponsored employees are being kept
- Where an employee’s role, salary, location, or other important information has changed, the correct process is being followed to update the Home Office
- If the business has stop trading or becomes insolvent, substantially change the nature of their business, or been involved in a merger or take-over, has this been reported to the Home Office?
- The business is complying with UK employment laws
- The business is legally operating and the necessary approvals and authority
- The business has not issued a restricted CoS where an unrestricted CoS is needed, or an unrestricted CoS where a restricted CoS is needed
This list represents only a selection of the checks a compliance officer may carry out on a visit. You can expect that the Home Office representative will be extremely thorough, and will want to see evidence that you are adhering to your compliance obligations.
The Importance Of Mock Audits
Many businesses across the UK who are reliant on employees from outside of the UK carry out mock audits to ensure they are prepared for an official Home Office visit. This is often undertaken by third-party specialists in sponsor license requirements (e.g. immigration Solicitors) who can quickly assess any potential risks in your compliance, and recommend resolutions needed. These mock audits can also be carried out on an unannounced basis to provide you with the confidence that if a real visit takes place, then your team, processes, and systems, are up to scratch.
Final Words
Investing time in ensuring your business remains compliant with the duties of a sponsor license holder is invaluable. No business owner wants to receive a phone call advising them that their sponsor license has been suspended, downgraded, or revoked due to an oversight which could easily have been avoided with effective systems, processes, training, and periodic mock audits. Once these are well established, compliance should become second nature, allowing you to focus on growing your business in the knowledge you can hire the staff you need.
