If your organisation’s sponsor licence has been suspended, your next steps will be critical.
Receiving a sponsor licence suspension notice from the Home Office is justifiable cause for concern. After the initial panic, your immediate thoughts might turn to how the suspension the impacts your sponsored workers’ visas? How do you respond to the allegations? How long will it take to resolve?
The first step is to consider your options and formulate a plan of action to try and avoid any detrimental impact on business operations and your employees’ visas.
Generally, your options are to either:
- Respond to the letter challenging the allegations, with supporting evidence, and seeking to reinstate the licence.
- Respond to the letter by accepting the allegations and identifying how you are addressing the breaches.
If you do not respond to the letter, fail to respond in the required timeframe or refuse to engage actively with the Home Office through the suspension process, your licence could be revoked.
Following receipt of your response, the Home Office will investigate further before making a decision.
If the Home Office accepts your argument, your licence is likely to be reinstated, either as an A-rating or a B-rating.
If reinstated with a B-rating, the organisation will still have a lot of work to do to. The organisation will be given an action plan that must be followed to re-attain the A-rated sponsor status. The contents of the action plan will depend on the nature of the breaches and you will need to evidence sufficient progress has been made within a specific timeframe, usually of up to 3 months. If you meet the action plan, the licence will be upgraded to A-rating. If you fail to meet the action plan, the licence could be revoked. Sponsors will also have to pay a fee for the action plan.
What does a suspended sponsor licence mean for your organisation?
As a licensed sponsor you are agreeing to meet all of the duties associated with sponsoring a migrant worker. In particular, you are under a duty to ensure compliance with the Immigration Rules and prevent abuse of the system.
If the Home Office alleges you have breached any of these duties, you can be subject to a licence suspension.
The suspension will apply across all visa categories.
During the period of suspension, the organisation will not be able to assign any certificates of sponsorship and it will be prohibited from sponsoring new migrant workers. Any CoS assigned prior to the suspension with an application pending will be put on hold until a decision is made by the Home Office on the suspension.
Your business will also be removed from the public register of sponsors for the duration of the suspension period.
You must continue to comply with all sponsor duties throughout the period of suspension.
If your licence is due to expire during this period, you must still apply for a renewalif you wish to retain the licence beyond its expiry date.
Will a licence suspension affect visa workers?
Your existing sponsored workers’ leave will not be affected until the Home Office has made a decision on the licence suspension. If existing sponsored workers are already in the UK and have applied to extend their visa, their extension application will be placed on hold until a decision is made on the suspension. Any new sponsored workers already in the UK who have not yet started work with you can begin working.
Should the Home Office decide to withdraw the suspension following your response, sponsored workers’ status will remain unchanged. If the Home Office decides to take further action by revoking the licence, all of the organisation’s CoS will be cancelled. This will mean you can no longer employ migrant employees. Your sponsored workers’ visas will be curtailed to 60 days, or however long they have left on the visa if less than 60 days. They must then leave the UK, unless they can secure permission under a different visa category.
In addition, any applications the organisation has pending with the Home Office would usually be refused.
Responding to a sponsor licence suspension letter
How you respond to the suspension notification will determine the outcome of the matter.
You will be required to respond within the given timeframe, typically 20 days, or the licence may be revoked. Acting in full cooperation with the Home Office will also be beneficial in resolving the matter.
The suspension letter will advise the deadline for your response. In most cases, this will be 20 working days. In practice, this is a tight timeframe in which to carry out any necessary investigations, collate evidence and prepare the response.
When considering your options to challenge a sponsor licence suspension, it will be important to address the reasons given by the Home Office for the suspension. The notification letter will ordinarily be extensive, detailing the specific breaches under the terms of the licence and explaining the grounds for the suspension. Is there a factual error in these grounds, that can be challenged with supporting evidence? Are there measures you need to take to rectify the breach?
In general, these will relate to breaches of immigration compliance duties in areas such as record-keeping, reporting and employee monitoring.
Close analysis of this information will be critical to determining your next steps and your prospects of making a successful challenge.
If the decision was based on a factual error, you may be able to challenge the decision with supporting evidence or further explanation.
Proportionality may also be a concern. If the breach was relatively minor, it could be argued that a licence suspension is a disproportionate measure and the impact on the organisation in issuing a suspension is not justified.
For example, if the loss of a sponsor licence will mean 20 sponsored workers lose their jobs, and the business is forced to close resulting in further job losses to the rest of the workforce, it could be argued that with corrective action and full cooperation with the Home Office, the licence should be reinstated on the basis of wider economic benefit.
Addressing the grounds for suspension
Your response will need to address the specific breaches alleged within the notification.
Common grounds for sponsor licence suspension include:
Record keeping duties
You must maintain accurate and up-to-date contact details for any migrant worker that you sponsor, including their contact details, UK residential address and any telephone number. You must also retain copies of any documents to prove their entitlement to work in the UK and undertake the work in question.
You must track and record employee attendance to ensure that any migrant worker is in fact complying with the terms of their visa. You must also conduct regular right to work checks so as to monitor the immigration status of those that you sponsor, thereby helping to prevent illegal working.
As a licensed sponsor you are under a strict duty to report certain matters about the migrant workers that you sponsor, such as regular non-attendance, non-compliance or disappearance.
Cooperating with the Home Office
You must comply with any request for information or access to documents during a Home Office site visit, or otherwise. You must also act honestly and openly in any dealings with the Home Office.
All roles being sponsored must be genuine vacancies. Evidencing this continues to prove problematic for employers given the subjective nature of the test.
Key personnel compliance
Licensed sponsors are required to allocate certain responsibilities to key personnel within the organisation, some or all of whom will have access to the sponsor management system (SMS) to administer day-to-day sponsor activities including, for example, reporting any changes in the circumstances of an individual worker. The authorising officer is the person responsible for the activities of all SMS users and ensuring that your sponsorship duties are met. If either the authorising officer, or any system user, fails in their duties, the organisation remains strictly accountable to the Home Office.
You should always exercise a degree of caution and carry out any necessary background checks to ensure that the individuals who you chose to appoint as your key personnel are honest, dependable and reliable, and therefore are unlikely to represent a threat to immigration control.
Taking a proactive approach to immigration compliance and licence management – making licence compliance a part of your everyday operations and ensuring all key personnel are trained – is the most effective way to manage the risk of Home Office scrutiny and punitive action.
Should you accept the suspension?
There may be circumstances when challenging a suspension would not be the best course of action. For example, if the allegation is factually correct, a challenge to the decision will incur unnecessary costs without real prospects of success.
If the allegations are correct, your focus should be on remedial measures you should take to rectify the breaches identified by the Home Office and demonstrate you have taken action to prevent the issues from happening again.
Whatever the strategy, you will need to respond to the Home Office, addressing each point raised in the notice and providing evidence to support your case, within the stated timeframe.
If your suspension follows a compliance visit
Sponsor licence holders are subject to ongoing Home Office scrutiny. From the initial demands of the sponsor licence application process, to the day to day duties as a sponsor licence holder and the renewal process after four years.
Licence holders should also be prepared to be subject to a Home Office inspection at any time during the four-year lifespan of their licence. In many cases, a visit is triggered when the employer is applying to renew their licence. The Home Office may also rely on intelligence, such as complaints from disgruntled former employees, as cause to carry out an immigration inspection. Sponsors should also remember that visits can be unannounced.
Inspections are designed to identify any failings or shortcomings of a sponsor licence holder in meeting their compliance duties in respect of sponsored employees.
Organisations must be sufficiently prepared for an inspection to evidence their track record in consistently meeting the required compliance standards and obligations, in order to safeguard the status of sponsor licence holder.
If the suspension is as a result of a compliance visit, you should request copies of the Home Office’s compliance report and all notes, documents and interview transcripts relating to the inspection.
Scrutinising the Home Office’s conduct in investigating your organisation and issuing the suspension can give rise to grounds for challenge if the Home Office failed to meet certain standards or to follow legal procedure, rendering any enforcement action unlawful.
If you have been asked to submit further information to the Home Office, ensure you comply within your response. Should any inconsistencies be identified in your documents, you will need to acknowledge this and explain the reasons for the discrepancies.
Decision-making time can vary depending on the size of your organisation, the number of sponsored workers you have and the complexity of the issues.
Other penalties for non-compliance
By law you are required to carry out right to work checks on the migrant workers that you sponsor to ensure that they are legally entitled to work in the UK and undertake the work in question.
If migrants are found to be working illegally in circumstances where you have failed to carry out the prescribed document checks, you are at risk of a civil penalty of up to £20,000 per illegal worker, or even criminal prosecution potentially resulting in imprisonment or an unlimited fine.
If your licence has been suspended, you will need to act quickly to resolve the issues and reinstate your status as a licensed sponsor of migrant workers.
Failure to address the Home Office’s allegations can result in revocation of your licence, meaning you can no longer lawfully employ sponsored workers and any existing sponsored employees will have to find alternative sponsored employment or leave the UK. The operational, financial and reputational implications can be devastating.
DavidsonMorris’ business immigration specialists are highly experienced in supporting sponsor licence holders facing a sponsor licence suspension. We have a dedicated team of sponsor licence lawyers who work with employers to resolve licence suspensions, dealing with the Home Office and advising on how to prevent future compliance issues from arising.
At the initial stage, we would review the facts of your case, including the alleged breaches as notified by the Home Office and your current general position to ascertain areas for challenge, such as weaknesses in the investigation process. We would then provide a recommended course of action, involving steps to address the cause of breaches and bring your systems and policies to requisite compliance standards. This could take one of many approaches, determined by the strength of your position and the case against you.
If you are dealing with a sponsor licence suspension, contact us to minimise the impact and disruption to your organisation of Home Office scrutiny.
Sponsor licence suspension FAQs
Why are sponsor licences suspended?
If the Home Office is not satisfied that your organisation meets the required standards, and that corrective action is required for you to maintain your ability to hire skilled non-EEA workers under the Tier 2 route, you may be subject to a licence suspension.
How long do you have to respond to a licence suspension?
The Home Office notification letter will state how long you have to respond. In most cases, you will need to respond within 20 days. Failure to meet the deadline could result in the licence being revoked.
Can you appeal a licence suspension?
Once notified of the licence suspension, the organisation must respond to UKVI within 20 days, providing any requested information and other supporting evidence as to why the suspension should be overturned.
Will a licence suspension affect visa workers?
Sponsored workers’ visas will not be affected until the Home Office has made a decision on the licence suspension. If the decision is to withdraw the suspension, their visas will remain unchanged. If the decision is to revoke the licence, their leave will be curtailed.
Last updated: 19 January 2021