Many businesses now have an immigration sponsor licence to sponsor key employees, with some sponsoring a significant part of their workforce. Since Brexit (and the end of free movement), UK employers have relied heavily on the sponsorship of staff to fill recruitment gaps, and most could not afford to lose their licence.
There has been a significant increase in the numbers of employers across the UK obtaining sponsor licences (over 40,000 skilled worker licences were in place by the end of March 2022). In addition, in the 12 months to the end of March 2022, 182,000 skilled worker visas were issued across the UK, exceeding pre-pandemic levels.
Given how important having a sponsor licence is for many businesses, we have set out below some of the key reasons why you might want to have a mock compliance visit / external audit of your HR processes and record keeping.
1. UKVI can visit sponsors at any time: unannounced visits are not uncommon
UK Visas and Immigration (UKVI) have the right to carry out compliance visits either before the licence is granted or at any time during the lifetime of the licence. It is a condition of the sponsor licence that you:
- agree to co-operate with UKVI, and;
- allow UKVI staff access, on demand to any premises or site under your control.
UKVI guidance on compliance visits states that: "visits should normally be unannounced" and before the pandemic, the majority were.
2. Compliance visits regularly result in compliance action
Statistics show UKVI often take action, following a compliance visit. In the year to 31 March 2022, 164 Tier 2 skilled worker sponsor licences were suspended and 115 were revoked. Therefore, the risk of action being taken (if you do breach your sponsor duties) is significant.
3. Sponsor licence breaches can result in serious financial, reputational and operational risks
If you breach your sponsor licence duties or illegal working laws, you can face various penalties. Illegal working breaches can result in:
- a civil penalty of up to £20,000 per illegal worker
- criminal sanctions in the most serious cases
- reputational risks, as UKVI publish the names of employers who are issued with civil penalties.
Where UKVI identify a compliance breach associated with your sponsor licence, they can downgrade the licence and give you an action plan (setting out required improvements within a 3 month period). This costs £1,476 and if you fail to make the improvements, your licence may be revoked. Alternatively, for serious breaches, UKVI may revoke the licence, rather than downgrade it.
The operational risks in having a licence revoked may be the most serious business risk, as you would be prevented from employing sponsored workers (which could result in the need to terminate the employment of some staff). Even where an action plan is given, no new migrant workers can be sponsored whilst it is active, which may adversely impact recruitment.
4. An audit provides an opportunity to fix any issues highlighted
Auditing your HR processes, procedures and record keeping each year, provides an opportunity to spot any risk areas or gaps in your record keeping and make improvements.
5. Even if you have good HR processes, sometimes they might not be followed in practice
You may not be aware of compliance gaps until your records are spot checked. Ensuring you have good processes in place is just part of the picture - an audit provides you with an opportunity to find out if they are being followed in every case.
What will an audit involve?
An audit will usually involve an external organisation checking and reporting on the following areas:
Right to work processes
Right to work rules have changed many times over the last few years. An audit provides an opportunity to ensure your processes comply with the current rules and those undertaking checks know what records to keep.
Record keeping obligations
As a sponsor, you have various other record keeping duties in relation to your sponsored workers, including: (i) maintaining details of your recruitment processes, and (ii) ensuring you have up to date contact and job role details for each individual. Carrying out file checks can ensure you have everything you need.
Authorising officer (AO) obligations
The AO is responsible for those who use the Sponsor Management System (SMS) and must ensure users comply with UKVI requirements. It's also the AO's role to check that the sponsor is meeting its compliance duties. The AO will also need to:
- keep on top of regular compliance rule changes
- understand the processes you use to ensure you are compliant with your sponsor duties
- have a system in place to check these activities
- check Certificates of Sponsorship are assigned to workers at least once a month.
An audit can check if these systems are in place.
Migrant tracking / reporting obligations
You must notify UKVI of certain changes and events through the SMS, often within ten working days. This includes certain changes to job titles, absences and salaries, amongst others. An audit can ensure that these reports have been made (and can consider whether the systems you have in place are sufficient).
Reporting changes to UKVI
You must notify UKVI of certain other changes to your organisation, usually within 20 working days of the change occurring. A compliance audit can ensure your details are up to date and any required changes have been reported.
How can Brodies help?
We have experience of running compliance audits for our clients to help them identify and fix any gaps in their record keeping, processes and obligations. Read our interactive brochure for more details.
If you would like to speak to us about your compliance duties, or arrange a compliance audit, please contact a member of our Employment and Immigration team.
