Most common mistakes that lead to losing a sponsor licence

By Dr Lusine Navasardyan

Dr Lusine Navasardyan is Director and Head of Corporate and Business Immigration at RVS Solicitors. Dr Lusine studied at Yerevan State University and the Bucharest University of Economic Studies. She is also a published author and a member of the Bucharest Bar. As a Director of RVS Solicitors, she is instrumental to the operation of the law firm, and as Head of Corporate and Business Immigration, she helps our clients to forge new futures in the UK.

The Home Office has implemented an extremely rigorous application process for employers requiring a sponsor licence to hire non-EEA skilled migrant workers in the UK.

The Home Office has always attempted to accurately convey the level of responsibility a licensed sponsor holds towards sponsored migrants. Further to this, the duties that a licensed sponsor must comply with daily to competently comply with the provisions imposed by the Home Office is extensive. It is therefore vital that licensed sponsors fully understand their duties as a sponsor as the Home Office expects licensed sponsors to remain fully aware and up to date with their duties.

There are certain circumstances in which the Home Office may suspend or revoke a sponsor licence. Figures released earlier this year, indicate that employers are struggling to comply with the duties and responsibilities imposed on licensed sponsors by the Home Office as 71% of 739 sponsors visited had failed to fulfil their sponsor duties resulting in the Home Office taking action against the sponsor. Furthermore, 32% of licensed sponsors had their licence revoked for serious breaches.

The consequence of losing a sponsor licence can be devastating for a company as they will no longer have permission to hire new non-EEA migrant workers as well as also losing current sponsored migrants. It goes without saying that a business deprived of their employees will struggle to continue trading and will inevitably suffer a financial loss.

The impact of having a sponsor licence revoked by the Home Office does not end there. The revocation will negatively affect current sponsored migrant workers in the UK as they will be required to find an alternative sponsor within 60 days. If a non-EEA migrant worker is unable to find employment with another licensed sponsor within the imposed deadline, the non-EEA migrant worker will be required to depart the UK.

What are the common reasons for revoking a sponsor licence?

A key issue often raised by the Home Office relates to licensed sponsors failing to adequately undertake the Resident Labour Market Test, specifically in relation to the record keeping aspect of the process.

By way of a brief overview, employers must undertake the Resident Labour Market Test before assigning a Certificate of Sponsorship; the purpose of conducting this test is to demonstrate that the role sought to be filled cannot be filled by an individual already in the UK . The Resident Labour Market Test requires employers to initially advertise the vacancy for a period of 28 days; the role must be advertised in two places listed in the Home Office guidance policy. In conjunction with this, the advert should expressly state the start and end date for the advertised role in order to demonstrate that the role was advertised for a period of 28 days as required.  The advertisement must also contain mandatory information such as the:

1. job title and location of the role
2. main duties and responsibilities of the role advertised
3. requirements and qualifications for applying
4. information on the salary package

Although the Immigration Rules do not expressly state that a copy of the advertisement must be submitted, the Home Office do have the right to request a copy of the advert at any point, even following the approval of a sponsor licence. Consequently, the Home Office guidance policy stipulates that a copy of the advert must be kept.  This means in circumstances where the Home Office conduct unannounced site checks, a copy can be requested at this stage instead, if it was not requested at an earlier stage.

It is important to note that the Home Office do in fact conduct unannounced checks and visits at the offices of licensed sponsors; figures published by the Home Office earlier this year revealed that over 15% of licensed sponsors received a visit from the Home Office during the initial 12 months of holding a sponsor licence.

Should you feel concerned about the possibility of failing an unannounced Home Office visit, contact us and we can assist you in ensuring that you are complying with your duties as a sponsor.

One of the common mistakes relating to the Resident Labour Market Test is the licensed sponsor failing to comply with their record keeping duties.  The Home Office guidance policy expressly states that certain information relating to the advert and the role advertised must be stored and recorded. Licensed sponsors must therefore retain a copy of all applications shortlisted for final interviews as well as the contact details of the applicants. Further to this,  the total number of applicants shortlisted for a final interview must be recorded and in circumstances where a settled worker was not offered the role, the reasons for the decision not to hire each individual which must be available upon request.

In circumstances where the role was advertised on the internet, the licensed sponsor must retain a screenshot from the website that the vacancy was advertised on. However, it is vital that the screenshot displays the:

1. name of the website that the role is advertised on
2. contents of the advert
3. date and URL
4. closing date for the advertised post

All of the above is also required for a vacancy advertised on Jobcentre Plus and must, in addition, also contain the logo of the relevant government website and the vacancy reference number for each specific vacancy. Contact us if you require further advice and guidance on how to conduct the Residence Labour Market Test correctly.

Licensed sponsors usually fail to meet their record duties as some may be unaware that documents must continue to be kept for at least one year from the date the sponsorship of a migrant ends. Other documents maybe required to be retained and stored for a longer period.

A further mistake made by some licensed sponsors relates to their general record keeping duties and failing to have updated contact details for those sponsored. It is a mandatory requirement for licensed sponsors to retain a photocopy or an electronic copy of each migrant’s national passport, biometric residence permit and National Insurance number. The sponsor must also keep updated contact details for each sponsored migrant, including a current home address and telephone number.

In addition, all employers in the UK must conduct right to work checks correctly. It is not sufficient to merely retain copies of the relevant documents as the documents must be checked with due diligently to ensure that there are no discrepancies in the information provided.  The Home Office has expressly stated that it is the employer’s responsibility to check documents properly and to retain copies of the relevant documents in a manner that does not allow the document to be altered. In conjunction with this responsibility is the duty to continuously monitor sponsored migrants’ immigration status throughout their employment which can be achieved if the right systems are in place.

It is therefore better to continuously maintain and comply with sponsor duties to prevent the suspension or revocation of a sponsor licence rather than attempting to rectify breaches in the future; it therefore goes without saying that prevention is key.

In some circumstances, the Home Office may allege that no genuine vacancy exists. This means that the licensed sponsor hired a non-EEA migrant whom is not actually undertaking the role specified on the Certificate of Sponsorship or that the sponsored migrant is not working for the sponsor at all. In addition, some licensed sponsors may pay their sponsored migrant the incorrect salary; it is deemed incorrect if the amount paid is not the same as the amount stated on the Certificate of Sponsorship.

The issues raised thus far are likely to result in the automatic revocation of a sponsor licence; it is important to note that licensed sponsors do not have the right to appeal against such a decision. Where a sponsor licence has been revoked, the employer cannot apply for a new licence for six months from the date of the revocation letter.

However, there are circumstances in which the Home Office will not automatically revoke a sponsor licence and will instead suspend the sponsor’s licence in order to further investigate the breach. During the suspension of a sponsor licence, sponsors will not be able to assign new Certificates of Sponsorship to migrants however, sponsors will still be expected to comply with all other duties and responsibilities.

What are the common reasons for suspending a sponsor licence?

A probable reason for the suspension of a sponsor licence can be due to the sponsor failing to pay a sponsored migrant the appropriate salary for the job that the migrant is sponsored to undertake.

The Home Office may also decide to suspend a licence if it transpires that the sponsor has failed to appoint a level 1 user who is required to carry out the daily tasks on the Sponsorship Management System. A sponsor licence can also be suspended if the level 1 or level 2 user disclosed their password for the Sponsorship Management System to another employee.

In circumstances where a licensed sponsor fails to provide the Home Office with requested documents within the imposed deadline or fails to co-operate in any way, their licence will be suspended. Contact us if you are concerned that you may not be complying with the above and a member of our immigration team will discuss your duties as a sponsor further.

If the Home Office reaches the conclusion that a sponsor licence must be suspended, there are two avenues in which events can be processed.

One way the Home Office may decide to process a breach or failure is to suspend the licence without making further enquiries which occurs in circumstances where the Home Office has sufficient evidence to reach a decision. The Home Office will thereafter contact the sponsor with a decision accompanied with written reasons for the suspension of the licence; the sponsor will subsequently have 20 working days to respond from the date of the letter notifying the sponsor of the suspension. This will provide a licensed sponsor with the opportunity to put forth their reasons or comments on the issues raised. If no response is provided within the relevant timeframe, the Home Office will proceed to making a final decision on the matter. It should be noted that the Home Office can also at this stage reinstate a licence, downgrade a licence or revoke the licence altogether.

Alternatively, the Home Office may suspend the licence in order to conduct a full investigation into the issued raised; the licensed sponsor will have 20 working days to provide a response. If you have received correspondence from the Home Office informing you of a suspension, it is vital that you obtain comprehensive advice. Contact us and we will discuss the reasons for suspension in detail in order to ascertain whether we can assist you in retaining your licence.

Appealing against a possible revocation or suspension based on the issues discussed must be done carefully and meticulously to ensure that the correct documentary evidence is submitted in support of the reasons put forth. This is the only opportunity given to a licensed sponsor to competently and effectively provide reasons which may also include an explanation as to why the Home Office has erroneously reached a decision.

The key to acquiring and maintaining a sponsor licence is to demonstrate a consistently competent approach to immigration compliance and the obvious understanding of sponsor duties. The Home Office has made the consequences of breaches and non-compliance evident within their lengthy published guidance policy and licensed sponsors are expected to continuously remain up to date with the updated guidance. It is highly advisable to instruct experts whom are highly experienced within business immigration to assist with not only obtaining a sponsor licence but also keeping their licence. It is evident that the consequence of losing a sponsor licence can be catastrophic for both a business and its migrant workers. Contact us for further guidance on any concerns relating to a sponsor licence and we will provide clarification and assistance competently, effectively and professionally.

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