As the Home Office forges ahead with efforts to crackdown on employer non-compliance, sponsor licence holders are advised to take action to ensure their immigration compliance is in order.
One recent case that typifies this current climate of enforcement saw DavidsonMorris engaged to help a care home group deal with a sponsor licence suspension.
The case raises a number of common issues and challenges facing sponsor licence holders that may be exposing them to enforcement action.
Background
The sponsor licence holder is a care home provider, delivering a full range of residential care services from a number of homes. They employ more than 50 sponsored workers.
In May 2024, the sponsor was visited onsite by the Home Office Sponsor Compliance Team.
In August 2024, the sponsor received notification that their sponsor licence was being suspended.
The two key grounds for suspension cited by the Home Office were:
a. The Home Office was not satisfied that the sponsor was offering genuine vacancies.
b. The sponsor’s failure to report late start dates for some of its sponsored workers.
Only 20 working days are given to respond to a suspension letter, so the timeframe is inevitably challenging.
Impact of Sponsor Licence Suspension
Sponsor licence suspensions are issued when the Home Office identifies serious concerns about a business’s compliance with its sponsorship obligations. It is often a preliminary enforcement action that indicates potential grounds for revocation if compliance issues are not resolved swiftly.
The impact of a suspension can be significant. It creates uncertainty for the business, its clients and employees. Licence suspensions can also potentially harm the business’s reputation and its ability to hire adequately skilled workers and retain already sponsored workers where there is concern by employees that the licence may be revoked. This can present critical operational challenges.
In this case, the sponsor knew that failing to deal with the matter would have resulted in their sponsor licence being revoked.
Losing the licence would have significantly impacted the business. All of the 50+ sponsored workers would have lost their jobs, significantly reducing the size of the business’s workforce, which would potentially result in care home closures due to the resulting staffing shortages.
If these homes were forced to close, other non-sponsored workers would have also been impacted and may have lost their jobs, too. This would have also inevitably impacted the residents, who are dependent on the sponsor licence holder for their care and would have faced disruption had their home been forced to close.
Defence Strategy
The sponsor contacted DavidsonMorris to understand their legal position and the options open to them to resolve the issue.
On instruction, we urgently requested copies of the records from the Home Office for the interviews that were conducted on the day of the inspection.
We also successfully sought an extension to the deadline to allow sufficient time to review the records once we received them, take full instructions and to prepare a full response.
Initially, the interview records we received were handwritten and illegible. We therefore insisted on receiving a typed copy of the records, which resulted in a further extension being successfully secured.
In response to the allegations, we took the following action:
1. Genuine vacancies
This case was particularly challenging due to the evidence the Home Office was relying on as the basis of the suspension.
The Home Office referred to documents provided by the sponsor to conclude that at least some of its sponsored workers were performing roles outside of those stated on their respective Certificates of Sponsorship (CoS). In particular, it was alleged that a sponsored ‘healthcare assistant’ was undertaking ‘kitchen duties’’ in a ‘chef ‘role.
We worked closely with the sponsor to compile the evidence to show that the worker had engaged in some meal preparation, but that the worker was in fact working in the sponsored role as a healthcare assistant and not as a chef or in a kitchen role.
We took detailed statements from the worker in question, as well as other key members of staff, to highlight the worker’s experience and identify that he was appropriately skilled to perform the duties of a carer.
We also used the statements to address the cross-over and blurred lines when it comes to the responsibilities of a healthcare assistant in relation to the preparation of food. This was to help support and challenge the conclusion that the role had not been genuine.
Our response challenging the alleged breach was accepted in full by the Home Office.
2. Late start dates
The second ground for suspension related to late employment start dates.
We sought additional evidence in relation to the grants of leave for the three workers who had been identified in the suspension letter as workers who started work late, and whose start dates had not been reported.
We managed through this to successfully challenge that one of the workers had not in fact started late, as their employment commenced within 28 days of their visa being issued.
For the other two workers, we assisted the client to ensure the start dates that they had failed to report were reported, albeit much later than they should have been.
We then prepared statements detailing the systems that had been put in place by the sponsor to prevent the issue happening again.
Outcome: Sponsor Licence Suspension Cancelled
As a result of our response, remedial measures and engagement with the Home Office, the suspension was overturned and the sponsor licence was reinstated with immediate effect.
The care home residents therefore did not face disruption to their care, and the sponsored workers continued to be sponsored by the business without disruption to their employment or immigration status.
Practical pointers for sponsors
The two grounds for suspension in this case are relatively common compliance oversights for sponsors:
1. Sponsored role duties
Sponsored workers are only permitted to perform the role in which they are sponsored to fill, as stated on their Certificate of Sponsorship and in line with the description of the corresponding SOC code.
If their duties are to change, but they will continue to fall within the same SOC code, the new duties should be reported on the SMS within 10 working days.
If the change in duties means the individual’s role falls under a new SOC code, a new visa application must be made and the individual worker must not commence employment in the new role until permission has been granted.
Any discrepancy in the permissible duties and actual duties can present grounds for enforcement action, affecting the employer’s sponsor licence and the worker’s visa validity.
2. Reporting sponsored worker start dates
A sponsored worker’s state date must be within 28 days of the start date stated on the CoS, the valid ‘from’ date on the visa or the date they are notified of the decision, whichever is later.
Sponsors no longer need to report a new start date if it is within 28 days, but they must report on the SMS if it is going to be more than 28 days, following a change in the rules in November 2022. The delay must be for a valid and acceptable reason.
Reporting late start dates is something the Home Office is taking more seriously than ever, and if found to have not been reported, constitutes a breach of sponsor duties and can result in compliance action being taken, as was the case here.
Sponsors need to have suitable systems in place to ensure they identify where a start date may be delayed by more than 28 days and ensure they report within 10 working days of the end of the 28-day period.
General compliance tips
This case also raises a number of general compliance risk management points for sponsor licence holders.
Sponsors are advised to be proactive in ensuring:
a. They are complying with their sponsor duties and have appropriate systems in place to enable this.
b. Staff who are engaged in the management of the sponsor licence are adequately trained to know what changes need to be reported and the time frames for reporting.
c. All staff who engage with sponsored workers are adequately trained to understand the restrictions on sponsored workers in terms of what duties they are permitted or not permitted to perform.
d. Appropriate communications to ensure sponsored workers also understand their visa conditions, including any restrictions within the business and responsibilities.
e. Acting quickly if you’re notified of an inspection. If the Home Office contacts your organisation to schedule a compliance visit, contact our sponsor licence compliance specialists. We can quickly assess and assist in mitigating against potential compliance breaches before the Home Office identifies them.
Received a Sponsor Licence Suspension Notice?
The Home Office has been open about its renewed focus on targeting employers for immigration compliance breaches. A significant focus of this crackdown is the care sector, which has become a particular target for compliance visits of late.
If your sponsor licence has been suspended, contact our specialist sponsor licence advisers immediately for advice.
You will need to collate all of your correspondence with the Home Office and share this with us from the outset to ensure we have full visibility of the facts and to enable us to prepare a legal strategy to tackle the suspension.
You should also identify any individuals involved in the breaches highlighted by the Home Office, and ensure they are available up until the response to the suspension has been submitted, to allow for statements to be taken.
For advice on a sponsor licence suspension, or any aspect of sponsor licence management, compliance or enforcement, speak to our sponsor licence team today.
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
