The Home Office has confirmed it is resuming onsite compliance inspections following the temporary suspension of compliance auditing due to the pandemic.
Organisations with pending sponsor licence applications are expected to be the initial focus, but employers in general are advised to take action to review their immigration compliance to avoid Home Office scrutiny and immigration enforcement.
UK employers must meet their duties under the prevention of illegal working regime. Sponsor licence holders have to meet additional compliance duties under the licence.
The Home Office relies on a range of methods to monitor employers and sponsor licence holders, including UKVI sponsor compliance site visits. During a site inspection, Home Office officials attend the employer’s premises to inspect HR documents and processes, and to interview employees to verify immigration compliance.
Sponsor licence holders should expect and be prepared for some form of UKVI audit at any of the following stages:
- At the pre-licence stage of the licence application process, whereby the Home Office will look to inspect the organisation’s HR systems and processes before granting the sponsor licence.
- At any point during the four-year licence validity period.
- After making a licence renewal application.
Immigration site visits may be announced with prior notice, or increasingly, without warning as an unannounced visit. This means sponsor licence holders must be match-fit and prepared for an inspection at any point.
What is the Home Office looking for during an immigration site visit?
UKVI want to see that you have the systems and processes in place to maintain records and compliant practices in accordance with your sponsor licence and Right to Work duties.
Your organisation will be assessed in the following areas:
- General sponsor duties
- Monitoring employee immigration status
- Maintaining employee data
- Employee tracking
We can’t stress enough how important it is for sponsor licence holders to be in compliance with their immigration duties at all times under their sponsor licence and the prevention of illegal working regulations.
Your documents should be a snapshot of your business at any one time.
Penalties for non-compliance
With over 70 % of visits resulting in some form of UKVI action, immigration compliance is clearly an issue for all sponsors. The Home Office requirements on employers are onerous, and officials take a dogged and proactive approach to enforcement. If following an immigration site visit, the Home Office finds grounds for complaint, your organisation could face punitive action including:
- Fines of up to £20,000 per worker found to be working illegally
- Downgrading of the sponsor licence
- Suspension of the sponsor licence
- Revocation of the licence
This all impacts the organisation’s ability to sponsor points-based visa workers.
Preparing for Home Office visit
Make record keeping a daily concern
A large part of your sponsor licence and Right to Work duties involves maintaining accurate records. Records must at any one time be up to date and easily accessible. They also need to be comprehensive in documenting all relevant aspects of sponsored workers’ employment, such as absences, work duties, location and pay.
Initial impressions can go a very long way to establish your credibility as a responsible and compliant sponsor. Poor initial impressions can mean a more detailed and challenging scrutiny of your personnel files and HR procedures.
This means being able to present comprehensive employee records evidencing a sustained and consistent approach to immigration compliance. If compliance issues are uncovered where you are otherwise generally been able to evidence compliance, depending on the nature of the breach, you may face less severe ramifications in the context of your wider compliance.
The three steps below will help companies that maintain hard-copy personnel files (though they may also keep personnel information online) show a UKVI auditor, at the moment they pick up their first personnel file, that:
- You know exactly who your sponsored migrants are
- You are fully aware of your responsibilities as a Tier 2 sponsor
- You are keeping on top of your responsibilities
Colour code your files
Make sure that the personnel files for your Tier 2 sponsored migrants are colour-coded in some way (a particular colour of folder or marked with a sticker.) That way it’s instantly visually clear to an auditor that you know exactly who your migrant workers are. It also makes it easier to locate any folder you need. UKVI can turn up unannounced at any time to carry out an audit, and they’ll usually have a list of the sponsored migrants whose files they wish to see – if you can’t find a particular file you really, really won’t be giving the right first impression. We hope you’re far too organised for that to happen, but it’s amazing how often we’ve seen it occur.
Include a checklist in each file
UKVI has clear requirements for the documents you must hold on file for every migrant worker that you sponsor. We’re sure you know the requirements – there’s probably a list somewhere on your computer, or maybe it’s outlined in a procedure manual somewhere, or simply in your head – but how can an auditor ensure that you know, unless they go through every file you have? By printing it out and putting it in each sponsored migrant’s file anyone opening the file can instantly see that you know what your responsibilities are and that you’re keeping on top of them.
It’s also a readily-available guide to every member of your HR staff, and if there are changes in legislative requirements it can be instantly updated.
Maintain an immigration ‘sub folder’
Wading through reams of paper in a personnel folder to find the relevant documents is not likely to put a UKVI auditor in a good mood. They may even miss some key documents that are on file because they simply can’t find them, and classify you as non-compliant in error (‘I know that copy of the visa isn’t signed and dated, but there’s another photocopy somewhere in the file that is’, ‘that copy of the contract hasn’t been signed, but there’s a signed copy three sections back’) There’s no such thing as a perfect way to set up a personnel file – every organisation has their own way of doing things, but we would suggest that as a minimum you maintain a section that includes:
- A copy of the Certificate of Sponsorship
- A copy of any changes reported to UKVI (salary or job description / title)
- A copy of passport and visa or biometric residence permit
Sponsor licence holders must keep all required records until an officer has examined them, or, if an officer has already examined them, for at least one year (if an employee works for less than a year, the duration of the employment). Some documents may need to be held for longer periods to satisfy other requirements and avoid a civil penalty for illegal employment.
You must ensure you have assigned the relevant roles under your sponsor licence, including the Authorising Officer, Level 1/2 users and key contact. Key personnel must understand the scope of their role and be adequately trained to perform their duties.
Whether the same person holds multiple roles, or these are assigned to different employees – their details must be recorded and kept up to date on the SMS.
Sponsored worker duties
One of the areas officers are likely to investigate is whether the job being done by the sponsored worker meets the skilled worker criteria and matches the information on the Certificate of Sponsorship. This means the worker should expect to be interviewed and asked about their daily duties.
Ensure records are kept relating to the worker’s employment, such as their job description.
Remember to notify of changes
Beyond keeping records, there is a positive duty on sponsor licence holders to report certain changes to the Home Office using the SMS portal within certain time limits following the change.
For example, changes to an organisation’s circumstances must be reported within 20 days, including where a business becomes insolvent, changes the nature of its operations or undertakes a merger with another company.
Organisations are also required to monitor the immigration status of their employees and report any changes and maintain records of checks and status accordingly.
If you change company address
If your company has moved address, the Home Office needs to know. They don’t like turning up for an unannounced audit visit to find a completely different company in situ (yes, we have heard of that happening.) It tends to make them nervous about what else you might have failed to tell them.
If you change your Authorising Officer
It’s essential that you have an Authorising Officer in place at all times. That means if the current incumbent leaves the company, or relocates overseas, or goes on sabbatical or maternity leave, you need to appoint someone else to fill the role – even if it’s just a temporary move. UKVI see the Authorising Officer as their key point of contact with your company, even if they aren’t involved in the day-to-day work of immigration. They will be e-mailing your Authorising Office from time to time, and if they get an automatic reply telling them ‘Mr Smith left the company in 2014, please contact…’ they won’t be happy. In their eyes if you don’t have an Authorising Officer in place then no one is taking responsibility for immigration matters.
If you open or close a UK branch
UKVI want to have up-to-date information on your UK sites – because that’s where your migrant workers will be based. Unfortunately it can be easy to lose track of what you’ve told the Home Office, because details of your branches aren’t published on the Sponsorship Management System. That means the only way you’ll know which addresses are in your licence is by keeping clear records and making sure they’re amended every time you open or close a branch.
If you establish or close an overseas branch, a subsidiary company or a linked entity
It can be even easier to lose track of which overseas companies are covered by your licence – yet again none of this information is viewable on your Sponsorship Management System. And if you’re part of a Group with a complex global structure, we appreciate that sometimes UK HR may be informed rather late down the line when a new subsidiary in Azerbaijan is established. Usually just at the point that one of your Managers wants to bring over an employee from there to the UK. Ideally you should be updating UKVI every time a linked entity overseas is established (or shut down), and certainly you must have done this before you can consider transferring an employee from that overseas company to the UK, but if your Group is constantly opening new overseas branches or companies then we would suggest programming in the submission of an update to UKVI every quarter, or yearly – it will depend on how frequent those kind of changes are.
Other significant changes to the company
Takeovers, acquisitions, mergers, TUPE transfers. All of these will have ramifications for your sponsor licence. This is a much more complex matter, so there isn’t room to talk through all of the implications here, but in most cases these changes have to be reported to UKVI, usually within a very tight timescale of 28 days after a change occurs. And you may need to submit a new licence application in this timeframe too. We would strongly suggest that you take expert advice on what is needed, at an early a date as possible.
Immigration audits are highly effective in identifying compliance risks and breaches. They also help to avoid backlog issues and alleviate demands on a daily basis by ensuring operations are geared towards compliance. Take a proactive approach before the Home Office comes calling and carry out an audit of your HR systems, documents and processes.
As with all dealings with the Home Office, you should be cooperative if the Home Office is carrying out an inspection. Being obstructive can in itself result in enforcement action. Ensure officials are provided access to documents and systems, that their requests (where reasonable) are supported and that personnel are available for interview.
UKVI action after an immigration site visit
If you are facing enforcement action after a compliance visit, it will be important to act quickly to consider all of your options.
We have substantial experience of helping organisations facing Home Office action.
We have seen that the Home Office doesn’t always get it right. They may not have followed their own processes correctly. Their paperwork or permissions may not be in order. They may also cause unnecessary disruption or losses to your business, perhaps attending while your business was open and busy.
If you have received an unannounced visit, as a result of which the Home Office is now taking action against you – take legal advice immediately. You have a limited amount of time to rectify issues or challenge allegations.
Whether you are in need of guidance in advance of an announced immigration site visit, or if you have received an unannounced visit and are now facing enforcement action, or are looking at immigration compliance on an ongoing basis, DavidsonMorris can help.
We have substantial experience helping businesses resolve issues with the Home Office and advise on proactive immigration compliance practices to avoid problems with Right to Work checks and your licence – and the visas that depend on it.
Keep all aspects of your HR compliance in check; HR processes, policies, and importantly record keeping. An immigration audit can also be extremely helpful in identifying potential issues before the Home Office comes calling.
For guidance on your situation, contact our immigration specialists.
Home Office compliance visits FAQs
What is an immigration compliance visit?
The Home Office has powers to attend organisations' premises to check HR records and interview personnel to ensure compliance with sponsor licence duties.
How much notice does the Home Office have to give for an immigration inspection?
While in most cases, the case worker may give advanced warning, immigration site visits can be announced or unannounced. This means employers should be prepared to be inspected at any time.
Last updated: 14 April 2021