Home Office can visit any UK business to carry out a pre-licence audit before making decision on the sponsor licence application. Home Office can also visit sponsor employers at any time during the sponsor licence validity to carry out a post-licence compliance check.
Employers holding a sponsor licence or those applying for one, should be fully familiar with sponsorship compliance duties and obligations, and be prepared for Home Office visits, to avoid last minute panic and stress, especially that the visits may be announced. It is helpful to have an immigration lawyer to review your current HR systems and processes and if needed adjust them to ensure full compliance.
The Home Office wants to see that sponsors have effective HR systems and processes in place to fulfill their sponsorship duties. If you do not have a lawyer to help you, or you simply want to learn more about the Home Office visits, you may find this article useful.
The risk of non-compliance is the licence application being refused or licence revocation for licence holders. We regularly assist our clients in preparing for Home Office visits. We also help to put together a robust HR personnel systems and procedures to ensure that they meet Home Office sponsorship compliance requirements.
A sponsor employer holding a sponsorship licence to employ foreign workers, is responsible for fulfilling certain sponsorship and compliance duties from the day their licence is granted. However, Home Office can visit a sponsor until:
• they surrender their licence
• the Home Office revokes their licence
Their responsibility for a migrant worker employed on a sponsored visa starts on the day they assign a certificate of sponsorship (CoS) ends:
• when they notify the Home Office that they are no longer sponsoring the migrant for any reason
• when the migrant leaves the UK and their entry clearance or leave to remain expires
• when the migrant is granted further leave to remain with a different sponsor or in another immigration category
Home Office compliance visits – unannounced or announced
Home Office can make an announced or unannounced visit to the sponsor employer. The Home Office guidance makes it clear to sponsors, that they must allow Home Office staff access to any of their premises or sites under their control, on demand. Diplomatic or consular premises are exceptions to the requirement to provide access on demand.
Refusal of access on Home Office demand would result in the visit report record that the sponsor was non-compliant, which may result in the sponsor licence being refused or revoked.
The Home Office compliance team will assess if the visit should be announced or unannounced. According to the Home Office guidance, their visits should normally be unannounced, and, in particular, will be unannounced where:
• the request has specifically asked for the visit to be unannounced as it is intelligence led
• the compliance team consider an unannounced visit would achieve more accurate results – for example, for a sector based risk reason
• there are serious concerns from previous visits that make the compliance team consider it more appropriate to visit unannounced.
If the key personnel are unavailable when an unannounced visit is taking place, the Home Office would normally nevertheless continue with their visit. If they need further information which would require them to speak to key personnel on the licence, they may re-visit or contact the sponsor by telephone, email or post after the visit to request additional information.
If the key personnel are not available during the visit Home Office will speak to a relevant person, for example:
• an owner
• a director
• anyone involved in the day-to-day running of the sponsor’s organisation
Procedure Home Office must follow during visit
It is good to have some understanding of the procedure the Home Office has to follow during their compliance (audit) visit to the sponsor employer. We list below the key procedural steps the Home Office is obliged to take:
• ask the sponsor, potential sponsor or migrant if they are fit and well to be interviewed
• ask if they are happy to carry out the interview in English or Welsh and if they understand what you are saying to them
• read out the statements from the interview record form and ask them to sign to say they agree to continue with the interview
• explain the purpose of the interview
• confirm the arrangements for breaks, for example, a break of at least 15 minutes will be taken every 2 hours
• record the start and finish time of the interview and note the time of any breaks
• ask the interviewee to sign the interview record form after the interview
• give them a copy of the interview records if they ask for one, either: o immediately if they have photocopying facilities o send a recorded copy in the post when you return to the office.
Documents Home Office can request during audit
During the visit, Home Office can request documents from sponsors to evidence their compliance with their duties and obligations. The documents specified in ‘Keeping records for sponsorship’ (appendix D) of the sponsor guidance for employers must be made available to the compliance officer, but the guidance does not specify that this must be at the time of the visit. If the sponsor tells the Home Office that they have the documents requested but they are not immediately available, Home Office must allow reasonable timescales for the documents to be produced.
The timescales will depend on the situation and is at Home Office discretion. According to the guidance, in most cases 3 working days will be appropriate, as the sponsor should have reasonable access to them. In exceptional circumstances they may allow the sponsor up to 20 working days to produce their documents.
What is checked during Home Office audit
When carrying out a pre-licence assessment visit, Home Office will check:
• the potential sponsor has the necessary human resource (HR) systems in place to make sure that, if they are licensed, they will be able to carry out their sponsor duties
• the number of migrants they want to sponsor is appropriate to the size and nature of the organisation
• whether there is any evidence that suggests the potential sponsor would pose a threat to immigration control
• any areas of concern that Sponsor Operations have identified as requiring further inspection relating to the potential sponsor’s application, for example, verifying the original documents they failed to submit with their application
• if the potential sponsor will genuinely be able to offer employment that meets the requirements at the correct skill and pay level
A post-licence compliance visit is to a sponsor who already holds a sponsor licence. During a post-licence compliance visit, you must assess:
• the sponsor’s HR systems to ensure they are meeting their sponsor duties
• whether the sponsor or the sponsor’s activities pose a threat to immigration control
• whether the original number of CoS requested on the sponsor application or annual request is still justified
• whether migrants working or studying with the sponsor are complying with the conditions of their leave to stay in the UK
• whether the sponsor continues to have a trading presence
• whether sponsored migrants were recruited to fill genuine vacancies which meet the requirements of the relevant immigration route in respect of skill level and pay all aspects of the tasking referral
Migrant file checks will be carried out as follows:
• at least 10% of sponsored migrant files
• a minimum 3 files where there are 3 or more migrants
• all files where there are fewer than 3 migrants
• a minimum 15 employee files where there are over 150 Tier 2 or 5 sponsored migrants (seek guidance from your line manager or referrer)
• between 10% to 20% of student files where there are between 151 to 299 Tier 4 migrants, with a 20% minimum where the initial 10% reveals a breach
• a minimum of 17% or 50 files where there are more than 300 Tier 4 sponsored migrants (seek guidance from your line manager or referrer)
The right to work checks documents will be checked for:
• 40% where there are 1 to 50 migrants
• a minimum of 3 migrants where there are 3 to 9 migrants
• all migrants where there are fewer than 3
• a minimum of 25% where there are 51 to 50 migrants
• 10% where there are over 150 migrants (seek guidance from your line manager or referrer)
Where there are 3 or more staff, the Home Office will normally interview a minimum of 3 migrants to corroborate sponsor accounts and check for migrant noncompliance.
Checks on record-keeping and reporting systems
The Home Office must take into account that sponsors can keep documents in either an electronic or paper version and do not have to store documents in any particular format. A sponsor must keep documents, unless otherwise stated in Keeping records for sponsorship (appendix D) of the sponsor guidance, for whichever is the shorter of:
• one year from the date sponsorship of the migrant ended
• the date on which you examine and approve them, if the migrant is no longer sponsored by that sponsor A sponsor may need to keep documents for longer to satisfy the requirements of other legislation.
Checks on immigration status monitoring
Home Office must check that the sponsor:
• has a system for monitoring a migrant’s immigration status, so that it can stop sponsoring any migrant who no longer has permission to work or study in the UK
• keeps copies of migrants’: o passports, including any page showing leave stamps o immigration status documents including their period of permission to stay in the UK o UK biometric residence permits where applicable
• has proof, such as a copy of an asylum registration card, that each: o migrant employee can legally work for them o student is allowed to study with them
If a sponsor does not take copies of passports or immigration documents for sponsored migrants, they automatically fail the record keeping and maintaining documents section of the visit report because they have failed the requirement of:
• immigration status monitoring
• maintaining documents
Monitoring expiry dates
Home Office must be satisfied that the sponsor is able to comply with the sponsor duty to stop employing migrants who no longer have the right to work. How the sponsor makes sure they can comply is their decision, but they must be able to show an effective way of doing so. Home Office may test the effectiveness of a system in place by questioning the sponsor about how they know when a particular migrant’s leave is due to expire.
Checks on maintaining migrants contact details
The sponsor must:
• keep a history of sponsored migrants’ contact details:
o UK residential address
o telephone number
o mobile telephone number
o email address
• have a system to make sure the details are always up to date
Home Office can expect the sponsor to:
• have in place some kind of system for updating contact details
• have a system for recording the history on contact detail changes
• provide you with a migrant’s current contact details
• provide you with a migrant’s contact history
Checks on record keeping and recruitment practices
The sponsor must:
• have a system for keeping the required documents for each migrant employed including:
o professional accreditations and registrations
o any relevant documents listed in Keeping records for sponsorship (appendix D) of the sponsor guidance
Checks on migrant tracking and monitoring
The sponsor must:
• have a system for monitoring migrant attendance
• be able to report within 10 working days migrants who: o fail to arrive for their first day of work o have 10 consecutive days of unauthorised absence – the 10 days for reporting an absence start after the tenth day of absence o are dismissed or have otherwise ceased to be sponsored by the sponsor o under Tier 2 (General) or Tier 2 (Intra-company transfers), take a period of unpaid leave, such as a sabbatical, which means that the sponsor is no longer allowed to sponsor the migrant – the sponsor guidance for employers details exceptions to this
• ensure that key personnel are still employed by the sponsor and they have reported any changes through the sponsor management system (SMS)
Checking compliance with general sponsor duties
Some of these duties are generic and others are specific to a type of organisation, sector or category.
The sponsor must make sure:
• they follow tier or sector specific sponsorship guidelines
• they do not pay a sponsored migrant in cash
• they pay sponsored migrants the appropriate rate
• sponsor management system (SMS) users do not share their passwords with anyone else
• they assign a certificate of sponsorship (CoS) appropriately, and in line with the sponsor guidance
• information entered onto a CoS true and they have dealt honestly with the Home Office
• they inform the Home Office, through the SMS, of any changes to the organisation’s:
o branches, sites, partnerships or exceptional arrangements
• they inform the Home Office of any mergers, de-mergers, takeovers and partial takeovers, or if they have sold their business or part of their business, within the given timescales stated in the sponsor guidance – this is currently 20 working days
• report any effect on a migrant’s employment as a result of Transfer of Undertakings (Protection of Employment) Regulations (TUPE) or Cabinet Office Statement of Practice (COSOP) or similar regulatory or legislative provision
• they have sent their application themselves and it has not been sent by a representative on their behalf
• key personnel are permanently based in the UK
• they inform sponsored students of their term and vacation dates so they can meet the conditions of their leave
• they do not employ illegal workers
Checking Minimum skill level compliance
The Occupation Code (SOC) is a common classification of occupations developed by the Office for National Statistics.
When assigning each CoS certificate we must choose the SOC applicable to the job role. It is important to make careful consideration and choose the correct SOC as choosing a wrong SOC can cause the Skilled Worker visa application to be refused by the Home Office.
The list of SOC codes (i.e. Appendix Skilled Occupations) must be checked before each CoS is assigned to ensure that a correct SOC has been chosen for a job role and that the SOC is eligible for the Skilled Worker visa. The SOC code list (Appendix Skilled Occupations) can be found here: https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-skilled-occupations
Checking Minimum salary level compliance
The minimum salary depends on the immigration permit category. For Skilled Worker the general minimum is £26,200 per year OR the Soc Code minimum, whichever of the two is higher.
Certificates of sponsorship: Defined and Undefined
The Home Office Sponsor Guidance Part 2 gives the definition of CoS: https://www.gov.uk/government/publications/workers-and-temporary-workers-guidance-for-sponsors-part-2-sponsor-a-worker
A CoS is confirmation from us as a licensed sponsor, that we:
• wish to sponsor the worker
• are satisfied the worker can meet the relevant immigration requirements
• are eligible to sponsor the worker on the relevant route
• agree to abide by the terms and conditions as stated on the SMS.
Types of CoS
• ‘Defined’ CoS: these are for Skilled Workers applying for entry clearance (a visa) from outside the UK.
• ‘Undefined’ CoS: these are for Skilled Workers applying for permission to stay from within the UK.
Genuine employment assessments
• requires the jobholder to perform the specific duties and responsibilities for the job and meets all of the requirements of the relevant route
• does not include dissimilar and/or predominantly lower-skilled duties
• is appropriate to the business in light of its business model, business plan and scale