Tier 2 Sponsor Licence Suspended? Consider your next steps carefully.
Sponsor licence holders are subject to continued Home Office scrutiny. From the initial demands of the sponsor licence application process, to the ongoing duties as a sponsor licence holder and the renewal process after 4 years.
Licence holders can expect to be subject to a Home Office inspection at any time during the four-year lifespan of their licence. In most cases, a ‘visit’ is triggered when the employer is applying to renew their Tier 2 licence, but unannounced visits are also becoming more common.
Inspections are designed to identify any failings or shortcomings of a sponsor licence holder in meeting their compliance duties in respect of Tier 2 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.
Where employers are falling short in meeting their duties, the Home Office has recourse to exercise its enforcement powers by suspending the employer’s sponsorship licence.
Increasing numbers of Tier 2 sponsor licence holders are now being hit with licence suspensions.
While in large part due to the Home Office’s wider stance and clamp down on illegal working, growing instances of compliance breaches do highlight the onerous nature of sponsor licence duties, and the challenging reality for employers and HR teams of staying compliant.
Tier 2 sponsorship licence holders under ongoing scrutiny
Tier 2 sponsor licence holders operate under considerable compliance duties. These include:
Sponsor licence holders are required to keep the following records or documents:
- Current right to work in the UK documentation (passport, visa biometric residence card or other acceptable form of evidence)
- NI Number (where applicable)
- History of, and up to date contact details
- Tier 2 – evidence of the recruitment campaign including the advertising process (resident labour market test), interview notes, list of all applicants and reasons for rejection. References for selected applicant.
2. Monitoring and reporting duties
A key responsibility for your company is to track and monitor sponsored individuals. You are required to report, within 10 working days, if the sponsored individual:
- Fails to start work when expected
- Has 10 days of consecutive unauthorised absence
- Contract is terminated earlier than expected, i.e. resignation
- Moves into another immigration category.
You are also required to report to the Home Office if you have any suspicions and evidence that an individual is breaking the conditions of their stay in the UK.
3. Absence monitoring
You must ensure that all absence is authorised. This includes sickness, annual leave, study leave and overseas travel.
Sponsor licence suspended: Compliance breaches
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.
Employers facing sponsor licence suspension will be advised as such in writing by the Home Office.
The notice will detail the alleged breaches that have resulted in the suspension. Examples could include (among many others) failings in the following duties:
- The genuineness test – continues to prove problematic for employers given the subjective nature of the test.
- The resident labour market test – another strict and complex requirement, with strict timescales and for which sufficient records must be retained.
- Reporting – extensive reporting duties are a common cause of non-compliance due to inadequate HR processes or internal knowledge gaps.
Sponsor licence suspended: What you need to do next
If you receive notification from the Home Office that your sponsor licence has been suspended, it will be critical to take swift action.
You will have 20 working days to respond.
Following the 20-day period, if the Home Office finds that your organisation has not taken sufficient action in response to the suspension notification, your licence may be revoked, and your permission to hire overseas talent withdrawn.
The response time quickly passes and if you are concerned to retain your licence, you must make your actions during that time period count.
Seeking professional support is recommended, given what is at stake.
We are highly experienced in supporting sponsor licence holders facing suspension. At this 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.
This will inevitably involve careful liaison with the Home Office, which we would undertake on your behalf. The aim is to negotiate to bring the matter to a satisfactory conclusion for both parties whereby the Home office is satisfied the issues raised in the suspension letter are addressed and the employer is able to retain their licence.
In instances where early resolution is not possible, while rare, we are experienced in managing any resulting court proceedings. This may include making an application for interim relief preventing he Home Office from taking your matter to revocation while court proceedings are live. This will be in the interests of your Tier 2 workers, who will be forced to find alternative entry clearance or to leave the country should your licence be revoked.
What happens to Tier 2 employees if the employer’s sponsor licence is suspended?
The impact of a sponsor licence suspension on Tier 2 employees will depend on the specific circumstances of the migrant worker.
If they are already in the UK working for the sponsor licence holder, they are permitted to remain until a decision is made, which will determine their next step.
If they have travelled to the UK but not yet started work, they are permitted to start.
If they are already in the UK and have applied to extend their Tier 2 visa, their extension application will be placed on hold until a decision is made on the suspension.
In most cases, if the suspension is withdrawn, the employee’s status remains unchanged. However, if a licence is at the next stage revoked, the Tier 2 employees no longer hold valid entry clearance. They must leave their job in the UK, unless they can secure permission under a different visa category.
Sponsor licence suspended: Do you need help?
DavidsonMorris are specialists in all aspects of sponsor licences and managing immigration compliance risks. If you are facing a sponsor licence suspension, contact us to minimise the impact and disruption to your organisation of Home Office scrutiny.