All Tier 2 sponsors may be audited by the UK Border Agency at any time, with or without prior notification. It is therefore important for sponsors to have a robust internal audit system in place in order to identify and remedy any HR system weaknesses that could lead to sponsor obligations not being met.
How likely is it that a particular sponsor will be audited?
Tier 2 sponsors may be more likely to be audited if the following factors apply:
- The sponsor is a Tier 2 and Tier 4 (student) sponsor
- The sponsor has applied for Highly Trusted Sponsor (HTS) status (either as a Tier 4 sponsor or once HTS is rolled out to Tier 2)
- The sponsor has a high proportion of sponsored migrants in its UK workforce
- The sponsor operates in an industry that is considered higher risk from an immigration compliance perspective, for example education, IT, catering and hospitality, residential care, cleaning and construction
- The UK Border Agency has analysed management information from the Sponsor Management System and identified potential areas of concern (for example a high rate of visa/further leave refusal)
- The sponsor has been 'B' rated and a follow up check is required to assess adherence to an action plan
In addition to undertaking audits based on a risk-based approach, the UK Border Agency also runs a programme of random audits both before and after issuing sponsor licences. In the past 6-8 months compliance resources have been focused towards monitoring Tier 4 sponsors, however it is anticipated that attention will now be turned towards Tier 2 sponsors.
Furthermore, those sponsors who received a pre-licensing visit should not consider themselves less likely to receive a post-licensing audit, since it is only possible for the UK Border Agency to check whether Certificates of Sponsorship are being issued correctly, and whether record keeping and reporting requirements are being met once the licence has been operational for some time.
What should an internal audit include?
An internal audit should ideally be scheduled on a 6 monthly basis and include:
- Checking whether right to work checks are being carried out and documented in accordance with the Comprehensive Guidance for Employers on Illegal Working and the accompanying Avoiding Unlawful Discrimination – Code of Practice
- Reviewing sponsor obligations as contained in the current sponsor guidance for Tiers 2 and 5, along with Appendix D, and identifying whether and how the sponsor's HR systems are operating to comply with these
- Checking what policies and procedures are in place to vet and train users of the sponsor management system, and to ensure continuity of system use without sharing login and password details
- Checking whether sponsor obligations and other immigration compliance matters are adequately notified to line managers and employees through policy documentation, employee offer letters and contracts
- Ensuring that at least two of the sponsor's employees have a working understanding of how and where information needed to comply with sponsor obligations is held and are able to explain the sponsor's systems in the event of an audit by the UK Border Agency
It is also advisable for sponsors to download and keep copies of the sponsor guidance and migrant guidance for Tier 2 as new versions are released, in order to be able to refer to historical versions for audit purposes as necessary.
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.