- 19 minute read
- Last updated: 8th January 2020
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?
This article covers:
- What a Tier 2 licence suspension means
- Why have I received a Tier 2 licence suspension?
- What do to if you are facing a Tier 2 licence suspension
- What happens after the investigation?
- Can any other sanctions be imposed?
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.
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 is in breach of the immigration rules by failing to comply with its duties as a licensed sponsor.
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. 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 for renewal if you wish to extend your licence validity.
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.
- 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.
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.
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, which could include revocation of the licence.
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.
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.
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.
Need assistance with a Tier 2 sponsor licence suspension?
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.
DavidsonMorris are specialists in all aspects of sponsor licences and managing immigration compliance risks. We have a specialist team of sponsor licence lawyers who work with sponsors to resolve licence suspensions, dealing with the Home Office and advising on how to prevent future compliance issues from arising.
If you are facing a sponsor licence suspension, contact us to minimise the impact and disruption to your organisation of Home Office scrutiny.
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.
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?
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 by the Home Office, 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.
How can DavidsonMorris help?
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.