In this post we look at the duties imposed on employers and organisations that hold a sponsor licence to sponsor workers under the Worker and Temporary Worker routes of the UK immigration system. We also set out below a checklist for sponsors of workers on the Worker and Temporary Worker routes on how to fulfil their sponsorship duties. For information on how to make a sponsor licence application, please refer to our previous post here.
Sponsor Licence Duties and Responsibilities
Licensed sponsors have the following duties:
- Reporting duties - sponsor licence holders must report certain information or events to the Home Office using the SMS within time limits;
- Record-keeping duties - sponsors must keep certain documents for each worker you sponsor;
- Complying with immigration laws and all parts of the Worker and Temporary Worker sponsorship guidance - sponsors must comply with UK immigration laws and all parts of the Worker and Temporary Worker sponsor guidance;
- Complying with wider UK law - sponsor licence holders have a duty to comply with wider UK law (other than immigration law);
- Not engaging in behaviour or actions that are not conducive to the public good - all sponsors have a responsibility to behave in a manner that is consistent with fundamental values and not detrimental to the wider public good.
How To Comply With Sponsor Licence Duties
1. Take note of when your sponsorship duties start and end
Your responsibility to comply with the duties of a licensed sponsor will start on the day your licence is granted and continue until you surrender your licence, it is made dormant or it has been revoked. Your responsibility for each worker will start on the day a Certificate of Sponsorship is assigned and will end as soon as any of the following events occur (and you have reported the event):
- The worker leaves the UK and their entry clearance or permission expires or lapses;
- The worker's application for entry clearance or permission is refused, or is cancelled, and any administrative review or appeal rights have been exhausted;
- The worker is granted entry clearance or permission to work for a different sponsor;
- The worker is granted settlement or permission to stay on a route that does not require you to continue to sponsor them;
- You report to the Home Office that you are no longer sponsoring the migrant worker.
2. Make sure you know your reporting duties
You have an obligation to use the online Sponsor Management System ('SMS') to report some events within 10 working days. These include:
- If a sponsored worker fails to report for work;
- If a sponsored worker is absent for more than 10 consecutive days without permission;
- If a sponsored worker no longer works for you;
- Significant changes to employment;
- If there is any change to the size or charitable status of the company;
- The worker is working for the same employer and in the same employment but different sponsor;
- Where employment is affected by TUPE or similar protection.
For some events, you must report within 20 working days. These include:
- If the company changes its name;
- If all or part of the business is sold;
- If the company ceases to trade;
- If the business is taken over;
3. Check your record keeping
One of your duties as a sponsor of foreign national workers includes keeping records for each worker. Appendix D contains a number of specified documents you must keep and information on how long you need to retain them. You must also keep the documents you provided in support of your sponsor licence application.
It is advisable to maintain an up-to-date record of the contact details for each sponsor worker and ensure that Right to Work checks are being carried out correctly.
4. Remember to comply with the Immigration Rules and the wider UK law
Sponsors should only employ workers who are qualified, registered or experienced to carry out the job. You must not assign a CoS where there is not a genuine vacancy. You should keep necessary documents showing that the workers meet the requirements of the job and monitor the immigration status of each worker employed to prevent any illegal working. Do bear in mind the UK employment law and ensure the national minimum wage has been paid.
As a sponsor, it is important to remember that one of your duties will be not to engage in behaviour that is not conducive to the public good.
5. Prepare for a compliance visit
We have discussed sponsor licence audits and compliance visits in our previous blog. The Home Office may conduct a visit before making a decision on the licence application. They may also choose to undertake compliance checks at random or if they have any reasonable suspicion.
The Home Office may check that the information provided in your sponsor licence application is accurate and complete. You should ensure that the relevant files and records set out in Appendix D of the sponsor guidance are visible and accessible. Further, the Home Office may check with HMRC to ensure you are paying your workers appropriately. The Home Office may also conduct checks on other workers to ensure you are complying with your obligation to prevent illegal working.
You do need to cooperate with the Home Office and allow their staff access to any premises or sites under your control.
6. Understand the consequences of failure to comply
Failing to comply with sponsor licence duties may have the following serious consequences:
- Licence downgraded: a sponsor licence may be downgraded from an A-rating to a B-rating for minor breaches. A time-limited action plan will be put in place, you will have to pay a fee and will not be able to sponsor any new workers until you have regained your A-rating;
- Licence suspension: if the Home Office have a reason to believe that you are in breach of your sponsor duties, they may suspend your licence while making further enquiries;
- Licence revocation: depending on the circumstances, the Home Office may or will revoke your licence. Annex C1 of the Worker Sponsor Guidance sets out the circumstance where your licence will be revoked.
Failure to comply with sponsor duties may affect the sponsored worker's permission to stay in the UK. If you are found to be employing workers illegally, you may be faced with penalties such as being issued with a civil penalty or being prosecuted.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.