Receiving notification from the Home Office that your organisation’s Tier 2 licence has been suspended will be justifiable cause for panic and concern. How do you respond to the allegations? Does the suspension affect your migrant workers? How long will it take to resolve?
What a Tier 2 licence suspension means
The Home Office has the power, among other punitive measures, to suspend your sponsor licence and your permission to employ migrant workers where it is alleging your organisation has failed to comply with its duties as a licensed sponsor and is in breach of the immigration rules.
During any period of suspension you will not be able to assign any certificates of sponsorship and will be prohibited from sponsoring new migrant workers. Your business will be removed from the public register of sponsors for the duration of the suspension period.
The impact of the suspension on existing Tier 2 visa employees’ status will be determined by the outcome of the Home Office’s investigations.
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 to renew it if you want to retain it in the future.
What do to if you are subject to a Tier 2 licence suspension?
Having received the notification, you will need to act quickly. You will be given a deadline of 20 working days by which date you must have responded to the Home Office.
You must not ignore the letter. Failure to respond will almost certainly result in further action being taken against your organisation.
The notification letter will detail the grounds for suspension, which you must address carefully and in detail in your response to the Home Office.
Taking professional advice can help to identify your options and ensure you respond in way that addresses the Home Office’s immediate concerns and identifies necessary remedial steps. For example, is there a factual error in the stated grounds that can be challenged with supporting evidence? Are there measures you need to take or have already taken to rectify the breach?
Engaging with the Home Office throughout the process will be critical in demonstrating your commitment to meeting the duties placed on your organisation.
Your response will need to be thorough and robust on all points. Extensive and compelling documentary evidence should be collected to support your position.
You should also prepare for a site inspection from immigration enforcement officials, if you haven’t already been visited.
What happens after the investigation?
Following receipt of your response the Home Office will carry out further investigations into your organisation and its compliance. As a result, your licence could be reinstated if the Home Office is satisfied the issues have been addressed, or your licence could be downgraded or revoked altogether if officials are not satisfied with your response to the allegations or if you have failed to respond.
If your licence rating is downgraded, ie; reinstated but with a “B” rather than an “A” rating, you will be required to pay for an action plan for a feee to help reinstate your “A” licence rating.
If your licence is revoked, there is no right of appeal and you won’t be allowed to apply for a sponsor licence again until the end of the appropriate cooling-off period, to run from the date your licence is revoked.
This will also mean that any leave granted to migrant workers currently in the UK will be curtailed, and if they fail to find sponsored employment promptly with another sponsor licence holder they will be asked to leave the UK.
Why have I received a Tier 2 licence suspension?
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. Allegations can typically relate to:
- 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.
- Monitoring duties – 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.
- Reporting duties – 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.
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.
Can any other sanctions be imposed?
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.
Has your Tier 2 licence been suspended?
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 Tier 2 workers and any existing Tier 2 employees will have to find alternative sponsored employment or leave the UK. The operational, financial and reputational implications can be devastating.
We have a specialist team of sponsor licence solicitors who work with sponsors to resolve licence suspensions, dealing with the Home Office and advising on how to prevent future compliance issues from arising.
For advice on your next steps, contact us.