What Steps Should an Employer Take to Prevent an Employee Overstaying their Visa?

If your business sponsors overseas workers, you will already understand the importance of ensuring that you adhere to your Home Office sponsorship duties. These duties include keeping records on migrant workers, carrying out right to work checks, only hiring migrant workers with the skills necessary to fill a genuine vacancy, and reporting obligations. Whilst you must ensure that any overseas worker you hire must have the legal right to work in the UK, you must also ensure that they do not overstay their visa. The risk of not checking your employees have a valid visa at all times is that you may be classed as hiring an illegal worker, for which there are significant penalties. In this article, we will explain some of the key steps your business can take to avoid one of your sponsored staff members becoming an overstayer in the UK.

What Are The Penalties For Employing An Illegal Worker?

Even if you do carry out the necessary right to work checks on your overseas staff when they are first hired, there is still the risk that if their visa expires and you continue to employ them, you may be at risk of significant penalties. The right to work guidance issued by the Home Office states, “If you are found to be employing someone illegally, and you have not carried out the prescribed checks, you may face sanctions including:

• a civil penalty of up to £20,000 per illegal worker;
• in serious cases, a criminal conviction carrying a prison sentence of up to 5 years
• and an unlimited fine;
• closure of the business and a compliance order issued by the court;
• disqualification as a director;
• not being able to sponsor migrants;
• seizure of earnings made as a result of illegal working”

In addition, it is likely that the employee will lose their right to remain in the UK and will be required to leave the UK. The other risk is that any business found to be employing a worker without a legal visa may have their sponsor licensed downgraded, suspended, or revoked. And in the worst-case scenario, if a sponsor licence is revoked, all existing sponsored workers will have their leave cancelled and will be required to leave the UK. As such, any one of these penalties should be a significant deterrent to inadvertently employing a sponsored worker whose visa has expired.

What can I do to ensure overseas workers do not overstay their visa?

The key to ensuring that your overseas workers do not become overstayers is putting in place people, processes, and systems that manage this risk. We recommend taking the following steps:

• Keep copies of your sponsored worker’s passport, visa page, and biometric residence permit – these should be centrally available and easily accessible to anyone in your organisation who may require them. For this reason, we recommend scanning each of these documents and storing them electronically in a secure manner.
• Record the expiry date of your sponsored worker’s current visa on your personnel system – a centralised database or personnel management system is ideal for this purpose
• Nominate key personnel whose role it is to check on the visa status of sponsored workers – this should ensure that if one person is sick or on holiday, another person is available to take over this role.
• Put in place a diary system to remind your key personnel to follow up with any sponsored workers whose visa is due to expire. We recommend having a diary entry reminder set up for six months, three months, one month, and one week prior to expiry. Alternatively, you may have a task list system within your organisation that can be set up to automatically remind or alert key personnel to make enquiries at set intervals. Two of these follow-ups should be in the form of a face to face meeting to allow you to speak to the individual directly and to see their original documents. At each interval, you should ascertain the intentions of the worker – i.e. whether they intend to extend their visa, switch to another visa, move to another employer, or leave the country. Notes should be kept centrally to ensure that these intentions are visible to all relevant staff. At later intervals, checks should be carried out to ensure that the original intention is still valid and whether they have put in place the necessary actions. It is important to note that your sponsored staff member will not be able to apply to extend their visa until one month before it expires.
• Where a sponsored member of staff intends to extend their visa, ask them for confirmation that the Home Office has received their application.
• Where sponsored staff intend to leave your employment at the end of their visa, they should be formally notified that you will no longer employ them after this date.
• If the member of staff leaves before their certificate of sponsorship expires, update the Home Office Sponsor Management System (SMS) advising them that the member of staff has left your employment early – this needs to be done within 20 days.

The Home Office’s Employer Checking Service

The Home Office provides an employer checking service that employers can use to verify the immigration status of a new or existing member of staff. This can only be used, however, if the member of staff is unable to provide the necessary right to work documents, and/or including where:

• they cannot show you their documents because of an outstanding appeal, review or application with the Home Office
• they have an Application Registration Card
• they have a Certificate of Application that’s less than six months old
• they’re a Commonwealth citizen who started living in the UK before 1988

Final Words

By taking the time to put in place the necessary people, processes, and systems to ensure that you are never in a position of employing a worker whose visa has expired, you can be confident you are acting in accordance with your Home Office sponsor duties. If you need any assistance with this matter, speak to an immigration Solicitor who will be able to advise you further.