Home Office enforcement action against sponsor licence holders – in particular Tier 2 sponsor licence revocation decisions – is on the increase. We have substantial experience in this area of law and below we highlight some of the main areas of concern cited by UKVI.
Lack of a genuine vacancy
The Home Office will often allege in sponsor licence revocation and suspension letters that there is no genuine vacancy. They may suspect that sponsored migrants are not working for the sponsor at all or that they are working in a job different to that stated on the CoS.
Rebutting this allegation requires care and attention to ensure that sufficient documentation is provided to the Home Office that clearly demonstrates that the employees are performing the jobs in question.
Non-compliant Resident Labour Market Test
One of the key concerns raised by UKVI in sponsor licence revocation and suspension letters often relates to the Resident Labour Market Test (‘RLMT’).
Where sponsors have been required to conduct a RLMT before issuing a Certificate of Sponsorship (‘CoS’), Appendix D of the Tier 2 guidance for sponsors specifies that they must retain:
- all applications short-listed for final interview, in the medium they were received. For example, emails, CV’s, application form etc. This should include the applicant’s name, address, etc,
- the names and total number of applicants short-listed for final interview,
- notes from the final interviews conducted and for each EEA national who was rejected, reasons why they have not been employed.
We have now seen several notices of suspension and revocation in which it is alleged that the sponsor has not retained this information.
Again, when rebutting this allegation, sponsors must take care to ensure that strong evidence is provided or that clear explanations are put forward concerning the absence of any relevant documents.
Failure to retain specified documents and information
Appendix D also sets out that sponsors must retain, for each migrant sponsored:
- a copy of their current passport pages showing all personal identity details, leave stamps and/or immigration status documents,
- a copy of their UK Biometric Residence Card (where relevant),
- a copy of the migrant’s national insurance number, unless they are exempt from requiring one,
- a history of the migrant’s contact details which must always be up to date (UK residential address, telephone number and mobile telephone number),
- a record of the migrant’s absence(s) which can be kept either electronically or manually,
- a copy of the migrant’s contract of/for employment/service for the job they are being sponsored to do,
- any other document specified in the relevant code of practice.
There are further requirements where the migrant is under 18 or if the sponsor is licensed under Tier 5 (International Agreement).
Again, we have seen an increase in allegations in sponsor licence revocation and suspension letters against sponsors for allegedly failing to retain all or some of these documents/information.
Action for sponsors
We are currently finding that these are the three most common reasons behind allegations of failing to comply with the sponsor duties and consequent enforcement action.
However, we have also seen Tier 2 sponsor licence suspension and sponsor licence revocation letters from UKVI that allege numerous other breaches by sponsors. These range from an allegation that an unlawful change in salary has occurred to an allegation that an Authorising Officer is not suitable to hold the position.
In view of the increased enforcement activity by UKVI and increasing number of sponsor licences that are revoked, it is important that all sponsors review the current sponsor guidance and ensure that appropriate evidence is held on each sponsored migrant’s file.
Where it is clear that a breach has occurred and it is not possible for the sponsor to remedy that breach, UKVI may accept that an approach to them by the sponsor along with an explanation as to the steps that have been taken to prevent a re-occurrence of the breach is sufficient to avoid enforcement action. This will however depend on the severity of the breach and legal advice should be taken prior to any such approach being made.
In other cases, it may be possible to negotiate with UKVI for there to be a temporary downgrading of the licence to a B-rating as this will allow current employees to remain in situ. If UKVI revokes the licence, all sponsored workers must cease work immediately and this may trigger claims by them against the sponsor.
We are regarded as one of the UK’s leading immigration law firms and we have extensive experience in advising sponsors concerning UKVI suspension and revocation action. If you need legal advice on this complex area of law or require a compliance review from our team of specialists, please contact us.