Immigration Compliance and Audit

Visits from the Home Office are not routine for every Sponsor. Often the Home Office have reasons for visiting a Sponsor. For example this may be because they have reasons to believe the company are employing those without the right to work or the company have sponsored a number of employees who visas are close to expiring.

Ultimately the fact that the Home Office may not have visited your company is therefore not something you should read into.

In the event that you are concerned as to whether or not the company's details have been registered accurately, you can log into the Sponsor Management System (SMS) and review the details that the Home Office have on record. In the event that the details are incorrect, you can amend this via a 'Request Changes to Sponsor Details' application which is done on the SMS system itself. Your Level 1 User must be the person who does this. Once an application for a Change of Circumstances has been made, the Home Office will contact you to inform you as any further documents they may require in order to update the records. Normally speaking you will have 10 days to send in the documents they request.

Please rest assured it is extremely unlikely that the Home Office have your records wrong and in some circumstances, changes are made automatically. If this is the case, you will receive a Notification from the Home Office to explain that the changes have been made and therefore no further action is required from you.

Home Office visits can be both announced or unannounced. The purpose for the visit is to ensure that a Sponsor is complying with its duties and obligations as a Tier 2 Sponsor. This does mean that an unannounced visit is legal as a Tier 2 Sponsor is expected to be compliant with Immigration laws at all times.

In the event that the Home Office do visit the company, you have a duty to ensure that the Compliance Officer and their team have access to the premise and co-operate with their visit and checks. However, if you are not available to attend the visit you are entitled to explain to the Home Office and look to re-arrange the visit given its importance. You may be asked to provide supporting documents to evidence this.

Whenever, the Home Office decide to visit a Sponsor, they are ensuring that the Sponsor is complying with its duties and obligations. This can be divided into 2 general categories-

1. Record Keeping; and

2. Monitoring.

In relation to Record Keeping, the Home Office expects a Sponsor to take copies of documents to evidence an Employee's right to work and that they continue to have the right to work throughout their employment. Records can be a photocopy or electronic copy. A Sponsor is also expected to ensure all sponsored migrant's contact details are kept up to date. The key contact details will be telephone number, residential address and email. You will also need to show that you have a system in place to ensure that you have recorded any visa expiration dates of your employees and a procedure of how you intend to ensure that the Employee has the right to work once the visa has expired.

In relation to Monitoring, you will be expected to have practices and procedures in place to ensure you can report the following to the Home Office-

1. Where a sponsored employee does not attend their first day of work as set out in their Certificate of Sponsorship.

2. Where a sponsored migrant has been absent from work for 10 working days or more without authorisation or where they have been absent from work for 4 weeks or more (unless the absence falls within a permissible reason).

3. If the sponsored migrant's employment has been terminated.

4. If you stop sponsoring a sponsored migrant for any reason (such as the fact that they have a new immigration visa which means they can work without needing sponsorship).

5. If there are significant changes to the sponsored migrant's employment such as their job title, salary or location of employment.

A visit will entail an interview with the Key Contact within the company as well as potentially any Tier 2 employees or proposed Tier 2 employees. The questions will revolve around the duties and obligations explained above. The Compliance Officer may also request to see supporting documents or evidence of your systems/processes to evidence your answers.

After a visit, the Compliance Officer is likely to contact you to request any supporting documents you were unable to provide during the visit itself. They will then make a decision as to whether or not the company should-

1. Retain its Licence;

2. Lose its Licence ('Revocation'); or

3. Downgrade its Licence pending a second visit (usually within the next 3 months).

The decision made by the Home Office will depend on the nature of any failings from the company. In the event of a significant breaches or numerous 'smaller' breaches the Home Office is likely to revoke the Licence. However, in the event of smaller breaches, the Home Office may decide to downgrade the company's Licence to 'B rated'. This would mean that the company would no longer be entitled to sponsor any new migrants. The Home Office would then put an action plan in place and revisit the company within 3 months whereby the Licence would either be restored back to A rated or revoke the Licence should the failings persist.

However, no matter the outcome of the visit, the Home Office do not have the power to close your company down. The extent of their power would be to revoke the Licence issued.

Any decision made by the Home Office will depend on the nature of any failings from the company. It is not clear what you mean when you refer to '... wasn't quite positive'. We therefore explain the multiple possible outcomes.

In the event of a significant breaches or numerous 'smaller' breaches the Home Office is likely to revoke the Licence outright. However, in the event of smaller breaches, the Home Office may decide to downgrade the company's Licence to 'B rated'. This would mean that the company would no longer be entitled to sponsor any new migrants. The Home Office would then put an action plan in place and revisit the company within 3 months whereby the Licence would either be restored back to A rated or revoke the Licence should the failings persist.

In the event that your Sponsor Licence is suspended and thereafter revoked, the consequences of this decision is with the company. However, as a visa holder in the UK, you are expected to be in compliance with all immigration rules and requirements. Depending on the reasons of any revocation, the Home Office may conclude that you were culpable to the failings. If this is the case, than there is a heightened risk that this could form the basis of any visa application you submit in the future. In the event that the Home Office decide to either revoke your Licence, you will be given reasons why. We would advise you to seek legal advice if you are unsure of the consequences this decision may have on you and any future applications you may need to submit. Our team of Senior Associates will be happy to help you if you wish to contact us.

There are significant differences between a Licence that has been suspended or revoked.

A Licence that has been suspended means that the Licence continues to be exist whilst the Home Office carries out further enquiries. A Licence that has been revoked means that the Licence no longer exists and a final decision has been made.

Whilst a Licence is suspended, you will not be able to apply for or assign any Certificate of Sponsorships (CoS) but you would be expected to comply with all duties and obligations of a Tier 2 Sponsor. You can still apply to renew your Sponsor Licence if it is due to expire whilst the Licence is suspended. Migrants who are currently being sponsored will not be affected during this suspension period and will only be affected in the event that the Licence is revoked.

Whilst in the suspension period, the Home Office will write to the Sponsor to advise on the reasons why the Licence has been suspended and what further information and/or documents they require in order for them to make a final decision. Once a decision has been made, there are three possible outcomes that can be reached-

1. The Licence is reinstated and you can continue to sponsor new migrants;

2. The Licence is revoked and you will need to consider issuing a legal challenge against the Home Office if you believe the decision is unlawful; or

3. Your Licence is downgraded from A rating to B rating. This would mean that the company would no longer be entitled to sponsor any new migrants. The Home Office would then put an action plan in place and revisit the company within 3 months whereby the Licence would either be reinstated back to A rated or revoke the Licence should the failings persist.

In the event that the Licence is revoked, it means that you lose the right to sponsor those already working for the company as well as the right to sponsor any new migrants. You will need to wait 12 months before you can apply for a new Sponsor Licence. In applying for a new Sponsor Licence, the previous reasons for revocation must be addressed as otherwise the new application is likely to be refused.

In the event that a Sponsor Licence has been revoked, there is no right of appeal against the decision. However, if you believe that the decision is either due to-

1. a Caseworker error; or

2. a result of a failure to consider the documents submitted

You are entitled to submit an 'Error correction request' application within 14 days from the date of the refusal/revocation.

However, in the event that the Home Office refuse to overturn their decision you will need to issue an application for Judicial Review before the Upper Tribunal (Immigration and Asylum Chamber - acting as the High Court in immigration applications).

However, before an application for Judicial Review can be submitted, you must first negotiate with the Home Office to see whether or not they are willing to settle without the need for legal proceedings. This is known as the 'Pre-Action Protocol'. What this means is that you will need to send the Home Office detailed submissions as to why they should reconsider their decision.

Should the Home Office not agree or if they do not respond, than you can file an application for Judicial Review before the Upper Tribunal. The statutory limitation period for an application for Judicial Review is 'promptly' and in all cases within 3 months.

You will also need to serve a copy of the application on the Home Office's solicitors - the Government Legal Department. Upon receipt of the application they have 28 days in order to file and serve a response known as an 'Acknowledgement of Service'. This response can be-

1. They do not oppose the claim - if this is the case than it is likely that they will invite us to withdraw the Judicial Review application via a 'Consent Order'. This Order will set out the terms of the withdrawal, However, the Order must first be approved by the Upper Tribunal but this is normally a formality.
2. They oppose the claim in part - they will explain which element of the claim they do not accept and provide summary grounds of defence as to why.
3. They oppose the claim in full - in this instance, summary grounds of defence will be filed and served to explain.

Once the Acknowledgement of Service has been served and assuming that they oppose the claim, the papers will go to an Upper Tribunal Judge for a decision on the issue of whether or not to grant 'permission'. At this stage, the Judge will be considering whether or not there are arguable grounds that the decision is unlawful and is often described as a 'filtering process'.

In the event that permission is not granted on the papers, you will be permitted to renew permission at an oral hearing. In this event, a hearing will be listed and a barrister will attend to provide legal submissions as to why the decision of the Home Office is arguably unlawful.

In the event that permission is granted, a substantive hearing will be arranged. You will need to prepare a trial bundle and the barrister will attend the hearing in order to provide legal submissions as to why the decision is (as oppose to simply being arguably) unlawful and therefore why a Quashing Order should be issued to set aside the Home Office's decision. A judge will then make a decision accordingly.

If the Home Office believe that you are not complying with your duties, the Home Office may decide to downgrade your Licence. However, before doing so, they will write to you to explain why they are considering to downgrade your Licence and give you 20 working days to provide your response. Having considered all of the relevant circumstances the Home Office will then issue a decision.

If the Home Office conclude to downgrade your rating, you will be given up to 3 months to show improvements to the reasons why your Licence was downgraded in the first instance. To assist you, the Home Office will issue what is known as an 'Action Plan'. In being issued with an Action Plan, you will have 3 options available to you-

1. You accept the Action Plan and pay the action plan fee - your licence will continue and within 3 months the Home Office will revisit the company to see if improvements have been made as set out in the Action Plan.

2. Decline to pay the fee - you can then surrender your Licence within 10 working days or the Licence will be revoked thereafter.

3. Do nothing - your Licence will be revoked within 10 working days.

In the event that the Licence is downgraded to a B-Rating, your rating will not be upgraded back to A-Rating until the Home Office believe that you have made improvements as set out in the action plan. This will normally be within 3 months but you are entitled to request for the visit to be made earlier - however, the Home Office will only revisit once before making a decision.

During the period of being a B-rated Sponsor, you can continue to sponsor existing sponsored employees but you will not be permitted to sponsor any new employees.

We can assist you in light of the fact that you have been downgraded. Please feel free to forward us your Action Plan so that we can advise you further.

If you believe that one of your employees does not have valid leave, than you must take immediate steps to clarify their employment rights. It is not always the case that when someone's visa has expired that they no longer have the right to work, much will depend on their circumstances. We set out some scenarios below-

1. If a visa has expired and no action has been taken to submit an application, than that employee no longer has a right to work.

2. If a visa has expired and an application is submitted after that date, than again that employee no longer has the right to work.

3. If a visa has expired but an application is submitted before that date, than the employee does have the right to work. This is known as 'section 3c' leave. That employee will continue to retain their rights and entitlements as per their previous visa until the outcome of their application. You will need their Case ID reference number for a Right To Work check (we explain this below).

4. If a visa has expired, an in-time application was submitted and refused by the Home Office and consequently an in-time appeal was filed, than again the employee has the right to work with section 3c leave. You will need their Case ID reference number for a Right To Work check (we explain this below).

In any event, you can carry out a Right To Work check with the Home Office. Upon completion of this online check, you will be given 3 possible answers-

1. Green light - this means that the employee has the right to work.

2. Amber light - this means that the employee has a conditional right to work and a new right to work check will be required in 6 months unless a visa has been issued. You will need a copy of that new visa on the employee's file.

3. Red light - the employee does not have the right to work and you should under no circumstances employ or continue to employ them.

All Right To Work checks should be kept on the employee in questions file.

If the answer is not clear or if you still have doubts, we strongly advise you to seek legal advice in order to avoid being issued with a civil penalty. Our team of Senior Associates will be happy to advise you on your circumstances, so please feel free to contact us.

All Employers are expected to keep abreast of the Immigration Rules and any changes thereafter. You can sign up for updates from the Home Office using this link: https://www.gov.uk/email-signu... or consider seeking legal advice.

In the event that you are not kept up to date, the Home Office does not accept ignorance as being a defence. The Home Office will consider the extent of any breaches and consider what appropriate action (if any) should be taken.

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