PBS licence holders operate under a number of immigration compliance duties.
To monitor sponsor licence holders, UKVI relies on a number of sources – including immigration site visits, where Home Office representatives attend the employer’s premises to inspect documents and interview employees.
Immigration site visits may be announced with prior notice, or increasingly, without warning as an unannounced visit.
Home Office figures released in February 2018 revealed 28% of businesses applying for a PBS licence received an on-site visit pre approval, and 16% received a visit within the first 12 months of approval.
Sponsor licence holders should expect and be prepared for some form of UKVI audit during the lifetime of their sponsor licence, whether at the initial application stage or four years later when renewing.
But the Home Office requirements on employers are onerous, and a dogged and proactive approach to enforcement is seeing employers being hit with hefty fines and punitive action impacting their ability to employ foreign PBS workers. Of the 739 companies visited between August and December 2017:
- 39% had their licence suspended
- 32% had their licence immediately revoked
- 71 % of all visited companies resulted in UKVI action
These figures paint a clear picture that immigration compliance is clearly an issue for employers.
If following an immigration site visit, the Home Office finds grounds for complaint, your business could be fined under the civil penalty regime if your Right to Work checks have not been correctly implemented, or face punitive action against your sponsor licence and ability to employ PBS workers if there are compliance breaches, including licence suspension or revocation in severe cases.
What is the Home Office looking for at 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 business 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 PBS 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 snap shot of your business at any one time.
If you are facing UKVI action following an immigration site visit
We have worked with thousands of companies facing Home Office action.
The Home Office often doesn’t 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 is 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.
What can employers do to prepare for an immigration site visit?
A large part of your sponsor licence and Right to Work duties involves maintaining accurate records.
Initial impressions can go a very long way to establish your credibility as a responsible and compliant Tier 2 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.
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.
Further evidential requirements exist where the Resident Labour Market Test has been undertaken to prove that you have tested and exhausted the domestic market before going on to hire a non-EEA worker.
You must ensure you have assigned the relevant roles under your sponsor licence – including the Authorising Officer, Level 1/2 users and key contact. 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.
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.
DavidsonMorris can help with immigration site visits
Whether you’re looking at immigration compliance on an ongoing basis, 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 – 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.
For example, if you are facing a civil penalty for illegal working, we offer a fixed-fee assessment at the preliminary penalty stage enabling you to determine which option will result in minimal financial loss for your business.
For guidance on your situation, contact our immigration specialists.