As a licensed sponsor you have a number of duties and responsibilities so as to ensure compliance with the immigration rules and prevent abuse of the system – both by you as a sponsoring employer and by any migrants that you sponsor. The following sponsor licence guidance provides a basic outline of those duties, together with some useful tips on remaining compliant.
More detailed guidance can be found in the various Sponsor Management System (SMS) manuals published by Visas and Immigration UK (UKVI). These provide a step-by-step guide for sponsors in complying with their duties, as well as use of the online SMS system.
The duties outlined below apply to all sponsors, although there are others specific to those licensed under certain tiers or categories, eg, Tier 2 (General) and Tier 2 (Intra Company Transfer). For further information on these tier-specific duties, reference should be made to the Home Office guidance ‘Tiers 2 and 5: guidance for sponsors’.
As a licensed sponsor you are under a strict duty to keep the following records or documents on the migrant workers that you sponsor:
- a copy of any document which proves their entitlement to work in the UK, eg, UK immigration status document and biometric residence permit (you should take a photocopy or electronic copy and not retain any original documents).
- contact details, including their up-to-date UK residential address, any landline telephone number and mobile number.
Sponsor licence guidance tip 1– regularly test your HR systems by carrying out audits of your personnel files to ensure you are fulfilling your record-keeping duties. Any failure to provide the relevant details or documentation could result in action being taken against you by the Home Office.
As a licensed sponsor you are under a strict duty to report certain matters about the migrant workers that you sponsor – such as non-attendance, non-compliance or disappearance. This must be done via the Home Office sponsor management system (SMS). This is an online function that lets you carry out day-to-day sponsor activities and report any changes to the Home Office.
This duty to report must be undertaken within a specified timeframe. In particular, the following matters must be reported within ten working days:
- if a sponsored migrant does not turn up for their first day of work, including any reason given for their non-attendance.
- if a sponsored migrant is absent from work for more than ten consecutive working days, without your reasonably granted permission.
- if a sponsored migrant’s period of engagement with you is cut short, either as a result of the migrant resigning, being dismissed or where any registration required for working in the UK (such as with a governing body) comes to an end.
- if you stop sponsoring a migrant for any other reason, eg, they have moved into an immigration route that does not need a sponsor.
- if there are significant changes in the sponsored migrant’s circumstances, eg, a promotion or change in salary (excluding any annual pay rise).
- you have information which suggests that a sponsored migrant is breaching the conditions of their leave. You must also give the police any information that suggests the sponsored migrant may be engaging in terrorism or other criminal activity.
- if the size of your business changes from small to large, or vice versa.
If there are any other significant changes to your organisation, eg, if you are involved in a merger/demerger, takeover, corporate restructure, change of ownership or go into administration, you must report this within twenty working days.
Sponsor licence guidance tip 2– ensure that you do not have more SMS users than you need. Your authorising officer is responsible for the conduct of all SMS users, but action will be taken against you as the employer in the event that either the authorising officer or any SMS user fails in their reporting (or any other) duties.
As a licensed sponsor you are under a duty to monitor the immigration status of the migrant workers that you sponsor so as to prevent illegal working. In particular, you must:
- only assign a certificate of sponsorship to migrants who are appropriately qualified, registered and/or experienced to do the job on offer. You must keep copies of any certificate, registration document or reference that confirm they meet the requirements of the role.
- only assign a certificate of sponsorship to migrants who you believe will meet the requirements of the tier or category, and are likely to comply with the conditions of leave or worker authorisation.
- no longer employ migrants who, for any reason, are no longer permitted to do the job in question, eg, their leave to remain has expired.
- conduct document checks on all prospective and existing migrant workers, including obtaining proof of their right to work in the UK and undertake the work in question.
Sponsor licence guidance tip 3– ensure that your human resource systems are adequate to comply with these duties on an ongoing basis. Your ability to carefully monitor and keep accurate up-to-date records of migrant activity will minimise the risk of any civil penalty if you are found to be employing an illegal migrant worker.
As a licensed sponsor you are also under a duty to cooperate with the Home Office, in particular when any request for documentation is made or providing access for any compliance visit at premises under your control.
Visits may be prearranged or unannounced and can take place either before of after a licence has been granted by the Home Office. This is to ensure that any information you have given is accurate, and that you are both able and continuing to comply with your duties as a licensed sponsor. You must also adhere to any action plan put in place by the Home Office following a visit.
The duty to co-operate includes acting honestly in any dealings with the Home Office, such as not making false statements and ensuring all essential information is disclosed.
Sponsor licence guidance tip 4– ensure that your records are accessible at short notice as a compliance visit can take place unannounced. During the course of one of these visits an officer may wish to verify any information included on your licence application and check any records on migrant workers.
Failure to comply with your sponsor duties
In the event that you fail to comply with your sponsor duties, either because you are unwilling or unable to do so, action will be taken against you. This includes if you have knowingly provided false statements or information, or otherwise pose a threat to immigration control.
There are various measures that the Home Office may take in response to non-compliance with your sponsor duties, including:
- downgrading your sponsor licence rating from an A to a B. This may also include a time-limited action plan, at your expense – albeit only where you are willing and able to correct any breach(es) and you no longer pose a threat to immigration control.
- suspension or revocation of your licence – where there has been a significant or systematic failing and you pose a serious threat to immigration control.
- referral for a civil penalty, or even criminal prosecution – where migrant workers are found to be working illegally.
The Immigration Rules are complex and subject to constant change. Moreover, the consequences of failing to comply with your sponsor duties can have serious consequences for both you and your business – not least the prospect of a civil penalty or criminal prosecution in the event that a sponsored migrant is found to be working illegally.
Securing expert legal advice can help you to remain compliant with the law. Your legal adviser will be able to assist you with all aspects of immigration, including the provision of specialist sponsor licence guidance.
The matters contained in this article are intended to be for information purposes only. This article does not constitute legal advice and should not be treated as such. Before acting on any of the information contained herein, expert legal advice should be sought.