Immigration Compliance Guide for Employers

immigration compliance

IN THIS SECTION

Immigration compliance refers to the legal obligations imposed on organisations that ensure they are lawfully employing, housing, or providing services to non-UK nationals and on individuals to ensure their lawful status in the UK is maintained.

For businesses, failure to comply can result in severe penalties, including substantial fines, loss of their sponsor licence and damage to reputation. For individuals, non-compliance can lead to legal consequences such as fines, detention, or even deportation.

In this guide, we set out the key areas of immigration compliance under UK laws, with practical advice on how to avoid enforcement action and penalties.

 

Section A: Overview of UK Immigration Compliance

 

Immigration compliance refers to the legal requirement to meet the various laws and regulations that govern the entry and stay of foreign nationals in the United Kingdom. This includes ensuring that all immigration laws are followed by individuals, employers, educational institutions, and other entities that might be affected.

 

1. Who is Affected by Immigration Compliance?

 

UK laws impose immigration compliance obligations on a range of entities and individuals, each with specific roles and responsibilities. Failure to comply with these duties can result in enforcement action and penalties.

 

a. Employers

Employers in the UK are required to prevent illegal working by ensuring that their employees have the right to work in the UK. They must conduct Right to Work checks before employing someone, keep copies of relevant documents, and ensure they comply with the data protection requirements. Employers face significant fines and potential criminal charges for non-compliance.

 

b. Sponsor licence holders

Sponsor licence holders are required to comply with a range of duties, including reporting specific changes to the UK Visas and Immigration (UKVI), tracking and recording employees’ immigration status, ensuring that foreign employees are in compliance with the terms of their visas, and cooperating with UKVI audits.

Failure to fulfil these responsibilities can result in the suspension or revocation of the sponsor licence, which could significantly impact the organisation’s operational capabilities and reputation.

 

c. Educational Institutions

Universities, colleges, and schools that accept international students must obtain and maintain a Student sponsor licence. They are responsible for ensuring that their international students comply with their visa terms, including course attendance and progress monitoring. Failure to comply can result in the revocation of their sponsor licence.

 

d. Landlords

Under the Right to Rent scheme, landlords in England are required to check the immigration status of prospective tenants to ensure they are legally allowed to rent property in the UK. This includes making, and retaining, copies of documents that prove the tenant’s right to rent.

 

e. Healthcare Providers

NHS trusts and other healthcare providers must check that patients are eligible for free NHS care based on their immigration status. This involves verifying the immigration status of patients who might be subject to charges for NHS services.

 

f. Immigration Advisers and Legal Professionals

Professionals who provide immigration advice or services must be qualified and registered with the Office of the Immigration Services Commissioner (OISC) or be a member of an approved professional body. They must keep up-to-date with the latest changes in immigration laws and practice ethically.

 

g. Individual Visa Holders

Visa holders in the UK are required to comply with the conditions of their visas. This includes not working illegally, registering with the police if required, and reporting changes in circumstances to the Home Office. Non-compliance can lead to detention, removal, and re-entry bans.

 

h. Financial Institutions

Banks and building societies must carry out immigration checks on individuals opening new bank accounts. They need to confirm that the person is legally in the UK, preventing illegal immigrants from accessing UK banking services.

 

i. Transport Operators

Airlines, rail, and other transport operators that bring passengers to the UK must ensure that passengers have the necessary travel and immigration documents before entering the country. Failure to do so can result in fines and penalties imposed by the UK government.

 

2. Legal Framework Governing Immigration Compliance

 

The legal framework governing immigration in the UK is designed to manage and control the flow of people entering and living in the country. Key components of this framework include:

 

a. The Immigration Act 1971: This foundational piece of legislation sets out the basic structure of immigration control in the UK, including who may enter, who is allowed to stay, and the conditions of their stay.

b. Points-Based System (PBS): The PBS is a system for managing the flow of workers and students from overseas. It categorises applicants into tiers based on skills, qualifications, and the need for their presence in the UK.

c. Code of Practice on Preventing Illegal Working: Under the Code, employers in the UK are required to conduct Right to Work checks to ensure that their employees have the legal right to work in the UK, or risk substantial fines and potentially criminal prosecution.

d. UK Visa and Immigration Services (UKVI): This body is responsible for operating the UK’s visa system, managing applications for people who want to visit, work, study, or settle in the UK.

e. UK Immigration Rules: These are detailed conditions and requirements for anyone wanting to enter or remain in the UK. They are frequently updated to reflect the current policies and needs of the country.

 

Section B: Immigration Compliance Requirements for Employers

 

Employers in the UK have to meet various immigration compliance requirements as part of their everyday operations, from verifying that new joiners have permission to work in the UK, to maintaining and retaining personnel records in accordance with specific rules.

 

1. Right to Work Duties

 

The UK government operates a strict regime to prevent illegal working. Employers have a legal duty to ensure that everyone they employ has the right to work in the UK. The regime applies regardless of whether any of your workforce are foreign nationals; Right to Work checks must be conducted on all employees before they begin employment.

Failing to comply with these regulations can lead to civil penalties for the employer, including fines and potential reputational damage.

Here are the key points about an employer’s duties under the prevention of illegal working regime:

 

a. Conducting Right to Work Checks

All employers in the UK must carry out Right to Work checks on every person they employ before they start work. This applies to both British and foreign nationals. The purpose of the check is to verify that the individual has the legal permission to work for you in the UK.

 

b. Types of Right to Work Checks

Under the current rules, there are four different ways to conduct a Right to Work check:

 

1. Manual Right to Work Check: This involves seeing the original documents proving the individual’s right to work. The employer must check the documents against a prescribed list of acceptable documents provided by the Home Office.

2. Employer Checking Service: This is a free online service from the Home Office for cases where the individual cannot provide original documents for a manual check or does not use online checks.

3. Digital Right to Work checks (using IDVT): This method utilises Identity Document Validation Technology (IDVT) through an Identity Service Provider (IDSP). It is currently only available for British and Irish citizens with biometric passports or residence cards.

4. Home Office Online Right to Work checks: This online system allows non-British and non-Irish citizens with a share code to provide their details to the employer for verification.

c. Follow-up Checks

If an individual’s right to work is time-limited (e.g., visa with an expiry date), the employer must conduct a follow-up check to ensure their right to work remains valid shortly before the expiry date.

 

d. Maintaining Records

Employers are required to keep copies of the documents they used to verify an employee’s right to work for a minimum period, typically throughout the employment and for a further year after the employment ends.

Read our complete guide to UK Right to Work checks here.

 

2. Sponsorship duties

 

Employers in the UK that wish to hire foreign nationals will in most cases need to first obtain a sponsor licence from the Home Office. A sponsor licence grants the employer permission to sponsor and employ skilled workers under various routes of the Points-Based System (PBS). It demonstrates the employer’s commitment to complying with the immigration rules and allows them to assign Certificates of Sponsorship to eligible workers.

The key compliance obligations on employers relate to the following:

 

a. Certificate of Sponsorship (COS)

This is a unique reference number, assigning sponsorship to a specific worker for a particular job role within your organisation. Employers can only assign a COS if the job offer meets the relevant minimum salary threshold and skill level requirements set by the UK government for that occupation.

 

b. Reporting Duties

Sponsors are required to report certain changes to the Home Office through the Sponsorship Management System (SMS) within specific timeframes, such as changes in the sponsored worker’s salary, job title, or core duties, changes in the work location and unexplained absences exceeding 10 working days.

 

c. Record Keeping

Employers have to maintain accurate and up-to-date records for each sponsored worker, including contact details, Right to Work documents, employment records, and any evidence of recruitment efforts undertaken for the role.

 

d. Maintaining Sponsor Duties

Sponsorship responsibilities extend throughout the sponsored worker’s employment. Employers must ensure sponsored workers remain compliant with their visa conditions and report any potential breaches to the Home Office.

 

e. Avoiding Exploitation

Employers must not exploit sponsored workers by offering lower wages or poorer working conditions than those offered to settled workers.

Failure to comply with these duties can lead to various consequences, including civil penalties (fines) for the employer or downgrading, suspension or revocation of the sponsor licence, making it difficult to hire sponsored workers in the future.

Read our comprehensive guide to sponsor licence compliance.

 

3. Personnel Record Keeping and Data Protection

 

Maintaining accurate records is crucial, not only for compliance with immigration laws but also for adhering to data protection principles under the UK’s Data Protection Act 2018 and the General Data Protection Regulation (GDPR).

Key compliance aspects include:

 

a. Data Accuracy: Ensure that all records related to immigration and employment are accurate and up-to-date.

b. Security: Store personal data securely to prevent unauthorised access, loss, or destruction. Employers must use physical and electronic security measures.

c. Limited Access: Access to employee records should be limited to personnel with a legitimate need to view or process them.

d. Data Retention: Retain employment records for the duration required by law and ensure they are disposed of securely once no longer needed.

 

Section C: Immigration Compliance for Education Institutions

 

Educational institutions in the UK, such as universities, that host international students must adhere to specific requirements under the Points-Based System.

 

1. Apply for a Sponsor Licence

 

This involves obtaining and maintaining a Student sponsor licence, which enables them to sponsor international students for their visa applications.
To apply for a sponsor licence, the institution will have to evidence their eligibility, including the necessary infrastructure and resources to support international students.

Institutions must also be subject to regular inspections by designated bodies to ensure they meet educational quality standards.

They must also keep accurate records of all sponsored students, including their attendance and performance. They must report certain events to the UKVI, such as non-enrollment, absenteeism exceeding 10 sessions, discontinuation of studies, or significant changes in course details.

 

2. Monitoring Responsibilities

 

Educational institutions have significant monitoring responsibilities to ensure compliance. They have to monitor attendance of their international students, and keep records updated. They should have a system in place to flag unauthorised absences and engage with students who are at risk of non-compliance.

Regular reviews of academic progress are also required to ensure sponsored students are on track to complete their course as expected.

Finally, institutions must ensure that students are complying with the conditions of their visas. This includes not working more hours than permitted and not engaging in activities that are not allowed under their visa type.

Failure to comply with these requirements can result in the revocation of the institution’s sponsor licence, which would prevent it from admitting and teaching international students. This could have severe reputational damage and financial consequences for the institution.

 

Section D: Visa Conditions for Individuals

 

When individuals are granted a visa to enter or remain in the UK, they are subject to specific conditions that govern their stay. These conditions vary depending on the type of visa issued but typically include:

 

a. Work Restrictions: Many visas, such as student visas, come with work restrictions, including limits on the number of hours that can be worked during term times and the types of jobs that can be held.

b. No Recourse to Public Funds: Most non-permanent visas stipulate that holders may not access public funds (such as benefits or public housing).

c. Residence Requirements: Certain visas may have stipulations about where one can live, especially in cases of visas tied to specific employers or sponsors.

d. Reporting Requirements: Some visas require the holder to register with the police or make regular reports to immigration authorities, particularly if they come from certain countries.

 

In addition to these general requirements, the following specific obligations apply to UK visa holders:

 

1. Notifying of Changes in Circumstances

 

Visa holders are required to notify UKVI of significant changes in their circumstances, which may affect their visa status. Important changes to report include:

 

a. Change of Address: Any move to a new house or apartment should be reported to ensure all correspondence and compliance checks are up to date.

b. Change in Marital Status: Marriage, divorce, or the death of a spouse can significantly impact the status of a visa, particularly if the visa is dependent on the relationship to someone already settled in the UK.

c. Change of Employer or Educational Institution: For individuals on work or student visas, changing the employer or educational institution is a significant change that must be reported, as their visa might be tied to the sponsor.

d. Criminal Convictions: Reporting any criminal convictions is mandatory, as these can affect the right to remain in the UK.

 

2. Maintaining Lawful Status

 

To maintain lawful status, many visa applicants will need to apply to extend their visa. Visa renewal applications should be filed before the current visa expires. Late renewals can lead to periods of overstaying, which are punishable by law and can affect future immigration applications.

Renewal applications must be accompanied by up-to-date documentation that reflects any changes in circumstances, such as new financial information or proof of ongoing employment or studies.

Applicants must also demonstrate that they continue to meet the criteria of their visa category, which might include continuous employment, ongoing study, or financial requirements.

Failure to comply with visa conditions or to properly manage changes in circumstances can lead to severe consequences, including visa revocation, denial of renewal, or deportation. Individuals might also face bans from returning to the UK for a period if they are found to have breached their visa conditions.

 

Section E: Common Risks in Immigration Compliance

 

1. Inadequate Documentation and Poor Record-Keeping

One of the most frequent issues is failing to maintain accurate and complete records of immigration documents, employee eligibility, and compliance checks. This can lead to issues during audits or inspections by authorities.

 

2. Failure to Update Records

Not updating records when circumstances change, such as changes in employee addresses, immigration status, or changes in sponsorship details, can lead to non-compliance.

 

3. Misunderstanding Visa Restrictions

Both employers and visa holders sometimes misunderstand the restrictions or conditions of a visa, such as work limitations for students or sponsorship requirements for skilled workers, leading to unintentional breaches of conditions.

 

4. Overlooking Right to Work Checks

Employers occasionally skip conducting thorough Right to Work checks before employing someone, either due to oversight or misunderstanding of the requirements.

 

5. Lapsed Visa Oversight

Both individuals and their employers sometimes fail to monitor visa expiration dates, resulting in illegal overstaying and employment.

 

Section F: Best Practice Advice

 

To avoid these pitfalls and maintain immigration compliance, consider the following best practices:

 

1. Regular Training and Updates

Ensure that all staff involved in hiring and managing international employees or students are regularly trained on the latest immigration laws and requirements. This training should include procedures for conducting Right to Work checks and updating records.

DavidsonMorris offers a range of immigration compliance training solutions to suit organisations of different types and sizes. Contact us for more information.

 

2. Establish Comprehensive Compliance Procedures

Develop and implement clear policies and procedures for verifying and managing the right to work of all employees. Ensure these policies are readily accessible and understood by all staff members involved in recruitment and HR processes.

 

3. Establish Robust Systems for Record-Keeping

Implement and maintain a robust system for recording and storing immigration-related documents and data. This system should allow for easy retrieval and tracking of individual compliance statuses.

 

4. Routine Audits and Reviews

Regularly audit your immigration compliance procedures and records to catch and rectify any potential issues before they become problematic. These should include internal audits and external audits from immigration compliance experts.

 

5. Clear Communication Channels

Establish clear communication channels for employees or students to report changes in their circumstances or to seek clarification on compliance requirements. Ensuring everyone knows whom to approach with questions or problems can prevent many compliance issues.

 

6. Use of Technology

Leverage technology to keep track of important dates, such as visa expirations and document renewal reminders. Automated systems can reduce the risk of human error in monitoring critical compliance milestones.

 

7. Engage with Legal Experts

Especially for complex cases or if your organisation frequently deals with immigration matters, having a relationship with legal experts in immigration law can provide invaluable guidance and help mitigate risks. DavidsonMorris are UK business immigration specialists. We offer a range of services to support employers to meet their compliance obligations and avoid enforcement action.

 

8. Transparent Policies

Develop clear, accessible policies regarding immigration compliance and ensure these are communicated to all relevant stakeholders. Policies should cover everything from the process for conducting Right to Work checks to how to handle a request for documentation from immigration authorities.

 

9. Prepare for Changes and Updates in Immigration Law

Stay informed about changes in immigration laws and practices by subscribing to updates from UK Visas and Immigration (UKVI) and other relevant legal bodies. Review and adapt your compliance practices as necessary to stay up-to-date.

 

10. Develop a Response Plan for Non-compliance Issues

Have a clear plan in place for dealing with situations where employees are found not to have the right to work. This should include steps for reporting to the Home Office and taking corrective actions without undue delay.

 

Section G: Case Studies

 

DavidsonMorris are UK immigration compliance specialists. We have extensive experience helping UK employers to be proactive in meeting their compliance obligations efficiently and effectively, as well as advocating for our clients facing Home Office enforcement action. Examples of our recent work include the following:

 

1. Large-Scale Immigration Compliance Training & Auditing for Local Authority

 

We devised and delivered a bespoke training and auditing solution on behalf of a local authority that sought to verify the immigration compliance of over 150 companies.

 

2. Lapsed Sponsor Licence Reinstated for Global Travel Company

 

This company’s UK sponsor licence had been left to expire and they had unknowingly continued to sponsor skilled workers for 18 months without a valid licence.

Our strategy was to apply for a new sponsor licence and to be transparent with the Home Office about the circumstances behind the expired licence.

We compiled a comprehensive submission for the fresh sponsor licence and prepared legal representations requesting that the Home Office disregard the previous failure to comply with sponsor duties due to exceptional circumstances.

The Home Office accepted our submission and reasoning, and the client was granted a new sponsor licence application with an A rating within only 9 days.

 

3. Sponsor Licence Reinstatement For UK Care Home Following Significant Compliance Breaches

 

The company contacted us when their licence was suspended due to severe breaches of their compliance duties, some of which are usually considered as mandatory grounds for direct revocation.

We assessed the case and prepared legal representations in favour of the reinstatement of our client’s licence. The Home Office agreed with every one of our legal arguments, and after only a couple of months, our client’s licence was fully reinstated with an A-Rating without even the need for our client to follow an action plan and go through the standard B-rating process.

 

Section H: Summary

 

The complexities of immigration regulations and the frequency of change make staying compliant a growing challenge for those affected.

Given the potential for severe consequences, including fines, loss of licences, curtailed visas and damage to reputation, the stakes are high. This underlines not just the importance of compliance, but also the value of seeking expert advice.

 

Section I: Need Assistance?

 

DavidsonMorris are UK immigration compliance specialists. We offer a range of compliance solutions, including:

 

a. E-learning software: enabling employers to disseminate compliance training across a large and dispersed workforce to promote best practice and ensure duties are met consistently.

b. SMS Level 1 & Level 2 User Training: practical training for those operating their organisation’s sponsorship management system.

c. Free training webinars: we deliver an ongoing programme of webinars providing practical insights and guidance on immigration matters.

d. Immigration compliance audits: we conduct mock audits to help organisations identify and address potential breaches or areas of non-compliance, ensuring the organisation is ‘match-fit’ should the Home Office carry out an inspection.

d. Bespoke training: we can meet your organisation’s specific compliance needs through tailored programmes, sessions and documentation.

 

To find out more about our immigration compliance services, or to discuss a specific compliance issue, contact our experts.

 

Section J: FAQs on Immigration Compliance in the UK

 

What is immigration compliance?

Immigration compliance refers to the adherence to all the laws and regulations that govern the entry and stay of foreigners in the UK. This includes fulfilling all legal requirements related to work, study, and residency by individuals, employers, and educational institutions.

 

Why is it important for employers to conduct Right to Work checks?

Employers are legally required to conduct Right to Work checks to prevent illegal employment. These checks ensure that employees have the proper authorisation to work in the UK, helping employers avoid substantial fines and legal repercussions.

 

What are the key responsibilities of educational institutions hosting international students?

Educational institutions must ensure they have a valid sponsor licence, maintain accurate records of their international students, monitor their attendance and academic progress, and report any significant changes in their enrolment status to the Home Office.

 

How can I stay updated on changes in UK immigration laws?

Stay updated by regularly checking the UK Visas and Immigration website, subscribing to our updates and attending our immigration webinars.

 

What happens if I fail to comply with immigration laws?

Non-compliance can result in various penalties, including fines, loss of licence to sponsor international students or foreign workers, and even criminal charges for more severe breaches. For individuals, it might result in detention, removal from the UK, and bans on re-entry.

 

What should I do if my circumstances change while on a UK visa?

If there are any significant changes in your circumstances, such as a change in your marital status, employment, or address, you must report these changes to the Home Office as soon as possible to avoid any impact on your visa status.

 

How often should I conduct internal audits for immigration compliance?

It is advisable to conduct internal audits at least annually or more frequently if your organisation has a large number of foreign nationals or if there have been recent changes in immigration laws that might affect your operations.

 

What resources are available for learning more about immigration compliance?

Key resources include the UK Visas and Immigration (UKVI) website, the Office of the Immigration Services Commissioner (OISC), and the Immigration Law Practitioners’ Association (ILPA), among others.

 

How can a non-compliance record affect my business?

A record of non-compliance can seriously damage your business’s reputation, undermine trust with your customers and the public, and lead to financial losses through fines and legal costs. It can also affect your ability to sponsor and employ foreign workers in the future.

 

Section K: Glossary of UK Immigration Compliance Terms

 

Certificate of Sponsorship (CoS): A virtual document that an authorised employer must issue to a foreign national they wish to hire. This certificate is necessary for the individual to apply for a work visa under the UK’s Points-Based System.

Immigration Act 1971: The primary legislation that sets out the legal framework for controlling immigration in the UK, including the conditions under which non-British citizens may enter and stay in the UK.

Points-Based System (PBS): A system used to manage the flow of workers and students into the UK.

Right to Work Checks: Employment verification checks required by UK law. Employers must perform these checks before hiring someone to ensure they are legally allowed to work in the UK.

Student Sponsor License: A license that educational institutions in the UK must obtain to admit foreign national students. This licence shows that the institution has met specific requirements related to the education and monitoring of international students.

UK Visas and Immigration (UKVI): A division of the Home Office responsible for handling visas, immigration, asylum, and nationality. UKVI implements the UK’s immigration policy and manages who has the right to visit or stay in the country.

Sponsor Management System (SMS): An online system used by organisations holding a sponsor license to manage their sponsorship duties. This system allows them to issue Certificates of Sponsorship and report changes related to their sponsored employees or students.

Immigration Rules: The detailed conditions and requirements set by the Home Office for anyone wanting to enter or remain in the UK. These rules are regularly updated to reflect changes in immigration policy.

Home Office: The UK government department responsible for immigration, security, and law and order, which oversees the work of UK Visas and Immigration (UKVI) and other agencies related to the safety and security of the UK.

Genuine Vacancy Test: A requirement that an employer must fulfil to prove that the job offered to a visa applicant is genuine, meets the appropriate skill level and salary threshold, and is not created primarily to facilitate an immigration application.

Illegal Working: The act of employing someone who does not have the right or permission to work in the UK or working in the UK without the right or permission. This is a breach of UK immigration laws and can result in significant penalties for both the employer and employee.

Visa Expiry Monitoring: The process of tracking the expiration dates of employees’ or students’ visas to ensure that all individuals are legally entitled to work or study in the UK and to take necessary actions before their visas expire.

 

Section L: Additional Resources on UK Immigration Compliance

 

UK Government – Official Immigration Portal
https://www.gov.uk/browse/visas-immigration
Comprehensive resource for visa applications, status checks, and immigration news.

 

Home Office
https://www.gov.uk/government/organisations/home-office
Official source for policy papers, guidance documents, and immigration statistics.

 

UK Visas and Immigration (UKVI) Contact Details
https://www.gov.uk/contact-ukvi-inside-outside-uk
For direct enquiries and support related to visas and immigration status.

 

Office of the Immigration Services Commissioner (OISC)
https://www.gov.uk/government/organisations/office-of-the-immigration-services-commissioner
Regulatory body for all immigration advisers and services in the UK.

 

The Immigration Law Practitioners’ Association (ILPA)
http://www.ilpa.org.uk/
Professional association offering training and resources for immigration lawyers.

 

 

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 500and 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

About DavidsonMorris

As employer solutions lawyers, DavidsonMorris offers a complete and cost-effective capability to meet employers’ needs across UK immigration and employment law, HR and global mobility.

Led by Anne Morris, one of the UK’s preeminent immigration lawyers, and with rankings in The Legal 500 and Chambers & Partners, we’re a multi-disciplinary team helping organisations to meet their people objectives, while reducing legal risk and nurturing workforce relations.

Legal Disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct at the time of writing, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

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