The UK work permit system requires employers to obtain a Tier 2 licence before they can employ foreign non-European staff who do not otherwise have an entitlement to work.
In its design of the scheme, the Home Office has essentially outsourced responsibility for immigration control of work permit holders from central government to the individual businesses and employers who sponsor them. It is therefore important that businesses sponsoring employees under Tier 2 licences are aware of all the relevant rules and regulations, particularly if Home Office representatives decide to pay you a visit.
Here is what you need to do before, during and after a visit.
Policing of sponsoring businesses
The requirements for Tier 2 sponsors are many and complex.
They include, for example, retention of evidence that the correct procedure has been followed where employees have been recruited under the Tier 2 (General) route, such as compliance with the Resident Market Labour Test, and evidence that the position meets the ‘genuine employment’ and ‘genuine vacancy’ requirements.
One of the ways in which the Home Office ensures compliance with the relevant rules and regulations is by visits, both announced and unannounced, to the employer’s premises or place of business. The ability of a sponsor to receive unannounced visits was added to the Tier 2 requirements list in April 2017.
Employers should note that a visit can also take place where sponsored employees are working, which could include the premises of a third party. The Home Office will require written evidence of arrangements between the sponsor and any third party to facilitate any possible visit and ensure cooperation.
Preparing for pre-licence visits
Visits can be broadly placed into two categories: pre-licence grant assessments, and post-licence grant compliance checks. Where a business has applied for a sponsorship licence, but before it has been granted, a Home Office assessment will consider the following:
- whether 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;
- whether the number of migrants they want to sponsor is appropriate to the size and nature of the organisation;
- if there is any evidence that suggests the potential sponsor would pose a threat to immigration control;
- any areas of concern that the Home Office’s 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; and
- if the potential sponsor has applied for Tier 2, that they will genuinely be able to offer employment that meets the Tier 2 requirements at the correct skill and pay level.
During these visits, the Home Office will essentially be checking whether sponsors are able to demonstrate that they have the necessary systems in place to meet their sponsorship duties. Evidence will need to be collected and presented which shows compliance on all of the points listed above.
Preparing for post-grant visits
As mentioned above, once a licence has been granted, checks can take place on either an announced or unannounced basis.
Visits can be triggered where, among other reasons, ‘intelligence’ is received about the organisation suggesting that it is not meeting its sponsor responsibilities, or where the sponsor hits a trigger point in the number of migrants they have sponsored, or where they are making a sponsor licence renewal application. During any such visit Home Office staff will be assessing:
- 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;
- if the original number of migrants requested on the sponsor application or annual request is still relevant or valid;
- if migrants working or studying with the sponsor are complying with the conditions of their leave to stay in the UK;
- if the sponsor continues to have a trading presence; and
- if sponsored migrants were recruited to fill a genuine vacancy which meets the requirements of the relevant immigration route in respect of skill level and pay all aspects of the tasking referral.
Again, the sponsoring business will need to make information and evidence available during the visit relating to each of these points.
During the visit
There is lengthy guidance published by the Home Office on what should happen during a visit.
The individual or team undertaking the check will be inspecting evidence provided by the sponsor in relation to the points listed above, talking to the appropriate individuals at the sponsoring organisation with responsibility for managing the licence (assigned at the time the licence was granted), and interviewing employees about their roles and responsibilities within the organisation.
Those undertaking a post-compliance visit will want to check, for instance, whether the role that was originally assigned when the Certificate of Sponsorship (work permit) was issued, remains substantively the same, including the level of salary and requirements of the role.
In order to verify this, visiting officers are able to inspect samples of work, for example, to check whether or not the actual roles accord with the skill level and job description stated on the Certificate of Sponsorship when it was issued.
After the visit
Once a visit has taken place, the officer(s) will submit a report to the case working team which then decide what do with the information.
Where the inspection uncovers irregularities responses can include a downgrade of a sponsor licence (from an A rating to a B rating), a reduction in the number of Certificates of Sponsorship which can be issued by the business, and in some circumstances, revocation of the licence.
Nick Nason is an immigration lawyer and Director of Edgewater Legal, specialising in business and immigration solutions for corporates. Nick is a widely published commentator on immigration law matters, and writes regularly for Free Movement, the leading site for commentary and legal analysis of UK immigration law and policy. Nick was also commissioned by the Strategic Legal Fund to prepare an in-depth study on the legality of Operation Nexus, a Home Office law enforcement initiative. Nick was referred to recently by the Guardian newspaper as 'an expert on European immigration'.