One of the most common areas of immigration compliance risk for sponsor licence holders relates to the Tier 2 guidance on record keeping.
It is an area that continues to change and most recently, in August 2019, the Home Office revised its guidelines, requiring Tier 2 (and Tier 5) sponsors to now record when their sponsored employees entered the United Kingdom, within 30 days of the start of the visa’s validity period. At particular risk of the new rule will be employers of ePassport gate users who will be unable to present a paper record of their entry.
We take a closer look at what employers need to do to ensure Tier 2 compliance, including meeting the new date of entry requirement.
UK immigration rules place high demands on sponsor licence holders to ensure they check and retain specific documentation for specific periods, in particular formats, and that these are to be made available to UKVI on request.
But it’s an area of immigration compliance which organisations can and do very easily get wrong. And the Home Office is becoming increasingly vigilant in targeting employers for breaches.
For already-stretched HR teams, record keeping is administrative, potentially resource-draining and frankly boring. There are more urgent and seemingly more important tasks for HR to deal with.
But failure to comply with or to meet the required Home Office standards will result in penalties, including fines, licence downgrading and increasingly, licence revocations. Reputation issues ensue. The damage to business operations of restricted or removed access to the global labour market is huge and best avoided.
Tier 2 Guidance: A reminder of your immigration duties
Record keeping forms a large part of a company’s sponsor licence duties.
The documents that you retain must prove that the right checks on an employee’s immigration status have been made and continue to be made. This will be considered by UKVI to determine if your organisation is compliant with its record keeping duties.
Checks on an employee’s immigration status should be made before employment commences. Importantly, this duty applies to all employees – including British and EEA citizens.
Thereafter, checks should be made on the right to work status of non-EEA employees with time-limited permission to work every 12 months from the date of hire.
How long to keep documents?
All documents provided as part of your application to become a licensed sponsor must be kept for the duration of the period covered by your licence.
All documents relating to sponsored workers must be kept for the shorter period of either:
- one year from the date you end your sponsorship of the migrant, or
- if the migrant is no longer sponsored by you, the point at which a compliance officer has examined and approved them.
Note that additional record keeping requirements do exist in certain circumstances, for example in line with other Home Office or legal requirements, where you will need to retain documents for other purposes and for longer periods of time.
What documents do you need to retain to ensure you are compliant with your Tier 2 sponsor licence duties?
Under ‘Part 1’ of the Sponsor Licence Guidance Appendix D, the following documents must be retained for every sponsor worker employed under Tier 2 (and Tier 5). They can be kept in either paper or electronic format, but they must be made available to UKVI on request.
- Copy of each sponsored migrant’s current passport pages.We cannot emphasise enough that copies of documents such as passports must be taken from originals. A copy of a copy is not acceptable and will not offer any protection for your organisation. The copy must show all personal identity and biometric details of the worker details, leave stamps, or immigration status document including their period of leave to remain in the UK. This must show the migrant’s entitlement to work for you as a licensed sponsor. In the absence of an entry stamp, other evidence such as the travel ticket to the UK or boarding card should be kept. The only exception to this is when a migrant is employed for one day or less and it is not practicable to obtain a copy of the documents.
- Copy of the migrant’s biometric residence permit (BRP).
- Copy of the migrant’s National Insurance (NI) number, unless the migrant is exempt from requiring one. This could be a copy of one of the following:
- migrant’s NI card or NI number notification letter from HM Revenue & Customs (HMRC) or the Department for Work and Pensions (DWP)
- migrant’s wage slip
- migrant’s P45
- Real Time Information (RTI) starter checklist – formerly P46
- P11 free of tax pay (FOT): employers declaration sent to HMRC
- RTI Employment Payment Summary (EPS) sent online to HMRC – formerly
- P14: employers annual return sent to HMRC manually
- RTI Full Payment Submission (FPS) sent online to HMRC – formerly P35:
- employer’s annual return to HMRC
- A history of the migrant’s contact details (UK residential address, telephone number, mobile telephone number). This must always be kept up to date.
- In the case of the employment of a child aged under 18, a copy of a letter from the migrant’s parents or legal guardian, or just one parent if that parent has sole legal responsibility for the child, consenting to the arrangements that have been made with regard to the child’s application, travel, reception and care arrangements in the UK.
- A copy of the migrant’s Disclosure and Barring Service (DBS) check where required for the role undertaken by the sponsored migrant.
- Record of the migrant’s absences, which may be kept electronically or manually.
- Where the migrant is a Croatian national subject to worker authorisation, a copy of their Purple Registration Certificate showing entitlement to work for you as their sponsor.
- Any other document set out in the relevant code of practice.
- If you are licensed under Tier 5 (Temporary Worker) International Agreement to sponsor contractual service suppliers or independent professionals, you must keep a copy of any contract you have awarded for the supply of service to you and either of the following:
- the tender document for that contract
- evidence of how the contract was awarded if it was not formally tendered
Parts 2-6 of the sponsor guidance place further, extensive record keeping duties relating to:
- Part 2: Resident labour market test (Tiers 2 and 5)
- Part 3: appropriate rate
- Part 4: skill level
- Part 5: for each migrant endorsed under Tier 1 (Graduate Entrepreneur)
- Part 6: for each migrant enrolled under Tier 4 (General) Student or Tier 4 (Child) Student
Tier 2 guidance best practice for record keeping
The Home Office requires evidence of effective systems and processes in your organisation that support prevention of illegal working, and that manage areas of risk such as List B workers.
This can be achieved through:
- Automation of your right to work checks and related HR processes, particularly where you operate multiple sites and decentralised recruitment and onboarding.
- Cloud storage of electronic documents to ensure centralised and consistent storage to required standards, kept for relevant periods.
- Auditing your processes and systems against the required standards to identify areas of risk and improvement.
- Training of relevant HR, recruitment and management personnel to ensure internal knowledge of duties is current.
- Stay informed of frequent changes to immigration rules and duties on employers to prevent illegal working.
The new date of entry requirement
In addition to conducting and documenting right to work checks, employers now have to retain a record of the date their Tier 2 employees entered the UK. This requirement has to be met for the individual to attain the right to work under their visa.
How the date of entry should be recorded and documented will depend on how the individual entered the country:
If the individual’s passport was stamped by an immigration officer at the border, the employer will be required to make a copy of the stamped page as proof of the date of entry, in line with standard right to work record keeping protocol.
Where the individual’s passport was not stamped on entry, because they made use of the eGate service (as is now available to citizens of the US, Australia, Japan, Canada among others), they will need to ‘affirmatively confirm’ their date of entry. The guidance requires the employer to make a record of this within 30 days of the start of the visa validity. Records of the date of entry could include a boarding pass or plane ticket.
Importantly, the date of entry must be within the validity period of the initial visa in the individual’s passport. Where entry pre-dates the visa validity, the individual will need to leave the Common Travel Area and re-enter Britain within their visa’s validity period.
Are your immigration compliance processes working?
We have substantial experience advising multinational employers and organisations with HQ and operations in the UK on meeting their duties through effective and commercially-viable compliance solutions.
For more information on compliance best practice or to discuss your organisation’s compliance needs, please get in touch.
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