Employers can reduce immigration risks by understanding the Home Office’s strategies for investigating breaches in HR compliance. Contributor, Anne Morris – immigration specialist.
With many areas of the UK economy unable to meet recruitment needs through the resident labour market, the ability to hire skilled personnel from overseas has become business critical for many companies. Employers must first seek permission from the Home Office to recruit workers with specific skillsets from outside the EEA, by applying for a ‘Sponsor Licence’. If granted a licence, the employer is essentially signing up to take on a number of prescriptive – and in all honesty, onerous – compliance duties on an ongoing basis.
And as a sponsor licence holder, the Home Office can also check in and check up on you at any point as they see fit. Penalties for breaching the sponsor licence duties are designed to act as a deterrent; they are costly and generally a hassle, impacting business operations and reputation alike.
Offending companies can find their licence suspended or even revoked. Home Office figures show in Q2 of 2017, there were 269 sponsor licence suspensions and 223 revocations. UKVI are clearly not afraid to use their teeth. So with over 27,000 organisations currently assigned a Tier 2 Sponsor licence –how does UKVI monitor and enforce compliance among this substantial cohort?
Through our work helping employers with immigration compliance, and defending employers who face allegations of immigration breaches, we have come across many sources of intelligence at the Home Office’s disposal. Awareness of these can prove valuable for employers when shaping their HR compliance and risk management strategies.
Here are some of the more common sources of intelligence the Home Office rely on to support their enforcement activity among UK employers:
Inspections – announced and unannounced
Home Office visits can be both announced and unannounced. In Q2 of 2017 alone there were 162 unannounced visits and 320 announced visits to existing licence holders. The inspections provide UKVI with unfettered access to an employer’s records and policies relating to immigration compliance. UKVI are also permitted to interview personnel as part of the inspection.
Visits are most common as part of an application for a sponsor licence – 237 companies were visited by UKVI in Q2 of 2017 for pre-licence processing – or when renewing a licence, or if an employer is already on the Home Office’s radar through previous immigration issues. It’s worth noting that some sectors appear to attract more UKVI scrutiny than others, notably those with proportionately higher numbers of non-EEA skilled workers such as care homes hiring foreign nurses, although we are also seeing significant interest and activity in relation to larger, corporate employers.
HMRC data sharing
Data sharing and enhanced systems tie-in with UK tax authorities are providing UKVI with unparalleled intelligence and information relating to employers and employees – salary, tax contributions and wider financial position. Cross-referencing data may set-off red flags for UKVI to ask further questions.
Employee visa applications
In some circumstances, employees working the in UK under the Tier 2 visa may after 5 continuous years in Britain become eligible to apply for ‘indefinite leave to remain’ (ILR). The ILR application process includes a requirement to submit details to the Home Office relating to the employee’s employment and the visa on which they currently hold clearance.
At this point, it is not uncommon for UKVI to delve further into the employer’s immigration affairs. This could raise inconsistencies or issues with the information UKVI hold on record for the employer organisation, enough to lead to further investigation.
Disgruntled former employees
‘Whistleblowers’ remain a prolific source of intelligence for UKVI. Notwithstanding any potential malicious intent on the employee’s part, there may be sufficient insight in the tip-off to warrant the Home Office digging deeper. What can employers take from this? The key take-away is that these risks can be mitigated with a proactive approach to immigration compliance.
Ignorance of non-compliance is not a defence. No consideration will be given to whether you intended or otherwise to breach your duties. As a sponsor licence holder, ensure you have the handle on your compliance duties. Ask yourself: HR policies. Are your policies for recruiting, onboarding and managing record-keeping relating to foreign staff up to date? UKVI will request sight of your HR policies as part of any investigation or site inspection. Record-keeping. The Home Office is looking for evidence of a sustained, consistent and comprehensive to sponsor licence management.
Roles and responsibilities. Have you identified key personnel, are they aware of their duties and are they carrying them out as required? Internal skills. All personnel involved with recruitment, on-boarding and line management of skilled non-EEA personnel should be trained and skilled in meeting immigration duties.
Tier 2 workers. Are your Tier 2 workers aware of their duties to notify of specific changes in circumstances – such as address, visa status? Latest rules. The Home Office expects all sponsor licence holders to be up-to-date on the duties placed on them – which are subject to frequent change. If you are contacted by the Home Office for more information or for a compliance visit, always seek professional advice – your next steps will influence the outcome of any UKVI enquiry.