‘Sponsorship is a privilege not a right’ – Home Office
Once a sponsor licence has been granted by the Home Office, it is important that employers comply with their sponsor licence duties. Employers are under strict obligations in relation to record keeping and reporting. The Home Office often conduct unexpected compliance checks to ensure that sponsors are keeping up their licence duties. If duties are not complied with, employers risk their licences being downgraded, suspended, or revoked, ultimately putting the jobs of their sponsored workers at risk.
Sponsor licence holders must report to the Home Office within ten working days (using the Sponsor Management System) if any of the following occur:
A sponsored worker does not start their role;
A sponsored worker is absent for more than ten consecutive days without permission (this must be reported within ten working days of the tenth day of absence);
Significant changes to a sponsored worker’s employment; this includes termination of the migrant’s employment, changes in the migrant’s circumstances such as a promotion, change in job title, change in salary or a change of place of work;
The sponsorship stops for any other reason. This includes where a sponsored worker switches to another type of immigration category;
There are changes to the size or charitable status of the company;
There are any suspicions the sponsored worker may be in breach of conditions of leave;
The migrant’s employment is affected by TUPE.
A sponsor must report any significant changes in the circumstances of the sponsor such as any takeover, merger or de-merger etc within 20 working days of the change.
Changes to the work start date
Sponsors often query what their reporting obligations are if a sponsored worker’s work start date on their Certificate of Sponsorship (“CoS”) changes after a worker has been granted permission (e.g if a worker needs to complete their contractual notice with their former employer or if the worker has a family emergency which means they cannot start on the planned start date). The rules have recently changed and are as follows:
Once a worker has been granted permission, they should start work no later than 28 days after whichever is the later of:
The start date on their CoS
The valid from date on their visa
The date the worker is granted permission to enter – if they entered the UK without entry clearance under the Creative Worker visa concession
The date the worker is notified of a grant of entry clearance or permission to stay
If the worker does not start employment by the end of this 28-day period, the sponsor must report the new worker’s start date and the reasons for the delayed start or stop sponsoring the worker (this must be reported by the end of 10 working days after the 28-day period).
Sponsors are responsible for maintaining records for each sponsored worker they support. Systems for maintaining records must be robust and must be available for inspection at short notice in case of an unexpected visit from the Home Office. Sponsors must keep certain documents for each worker they sponsor. These include but are not limited to: a copy of the worker’s current passport, evidence of the worker’s date of entry to the UK, a copy of the worker’s BRP card, a copy of the worker’s NI number, a record of the worker’s absences and copies of any relevant qualifications such as degree certificates.
Appendix D contains a full list of specified documents and information employers must keep for each sponsored worker and details how long documents and information should be retained for.
Sponsors must also keep a record of full history of the contact details for each sponsored worker (including their address, phone number and mobile phone number and email address). A suitable method of updating these details must be in operation.
Employers must also have a system to track visa expiry dates of migrant workers. Allowing someone to work when their visa has expired is a serious matter which may result in fines of up to £20,000 per illegal worker and criminal prosecution for key directors, in the worst cases leading to imprisonment of up to 5 years.
Sponsors must retain evidence of recruitment activity for each worker. Even if sponsors do not advertise a specific role, they must be able to show how they recruited the worker.
If a sponsor advertised the role, they must retain the following:
Details of any advertisements, including:
A screenshot, printout or photocopy of the advert, or a record of the text of the advert;
Information about where the job was advertised (for example, website address), and for how long;
A record of the number of people who applied for the job, and the number of people shortlisted for interview or for other stages of the recruitment process; and
At least one other item of evidence or information which shows the process used to identify the most suitable candidate– examples include but are not limited to:
a copy or summary of the interview notes for the successful candidate
a list of common interview questions used for all candidates as part of your selection process
brief notes on why the successful candidate was selected and why other candidates were rejected
information about any scoring or grading process you used to identify the successful candidate
any other relevant information or evidence
If a sponsor did not advertise the role:
The sponsor must, if asked, be able to explain (and, where practicable, provide evidence of) how they identified that the worker was suitable– examples include, but are not limited to, the following situations:
The sponsor identified the worker through a university milk round – you should retain evidence of the milk round.
The worker was already legally working for you on another immigration route and you established they were suitable for the role through their previous performance.
The worker applied to you outside of a formal advertising campaign (made a ‘speculative’ application) and you were satisfied (for example, by interviewing them and/or checking references or qualifications) they had the necessary skills and experience to do the job.
Other information the sponsor must retain in respect of each worker:
Details of the sponsored worker’s salary including; copies of payslips, evidence of the amount and frequency of all salary payments and a copy of a compliant contract of employment or written statement of employment particulars.
A detailed and specific job description outlining the duties and responsibilities of the worker (this must include the skills, qualifications and experience required for the post), copies of any relevant qualifications (such as degree certification), copies of any registration and/or professional accreditation documents and for those under the creative worker route sponsors must retain details of their technical or specialist skills.
Right to work checks
Right to work checks provide employers with a statutory excuse from a civil penalty of up to £20,000 per worker if carried out correctly and evidence is retained in accordance with Home Office rules.
Before an individual starts work, employers must conduct a “right to work” check to determine if they are entitled to take up the work on offer. This three-step check involves:
Obtaining the individual’s original documents.
Checking the documents in the prescribed matter
Making and retaining clear copies of the documents and a record of the date the check was made.
These checks must be carried out before they start work. Any new starter who does not provide these documents should not start work.
There are four ways in which employers can conduct a right to work check:
Manual Right to Work checks – this involves the employer obtaining the hard copy identity document.
Online Right to Work checks – since April 2022, online checks are mandatory for those with a Biometric Resident Permit, EU settlement scheme status or Frontier Worker Permit.
Digital Identity Service Provider Checks – using a third party Digital Identity Service Provider (there is a specific list of eligible providers), however note this option is only available to those with valid UK/Irish passports.
Employer checking service – this is relevant to those who have an outstanding visa application or appeal.
Note that failure to carry out checks can impact a sponsor’s ability to retain their sponsor licence.
Other Immigration rules and Wider UK law
Ensure they are complying with UK employment law, for example, National Minimum Wage requirements and paid holiday entitlement.
Only employ migrant workers who are appropriately qualified to do the job and therefore must check their professional accreditations before they begin work and retain accessible copies in case of a Home Office inspection.
Only assign a CoS to a role which is a genuine vacancy.
Only assign a CoS to a worker who you believe will meet the immigration requirements of the route on which you are sponsoring them.
Comply with the Home Office’s fundamental values and behave in a manner which is not detrimental to the wider public good.
Sponsor licence duties can be onerous, however the rules are there to prevent illegal working in the UK. It is important that sponsors are mindful of their duties and ensure they are complying with their responsibilities. Employers who are non-compliant risk losing their sponsor licence and affecting their sponsored workers’ permission to stay in the UK.
If your business requires assistance with applying for a sponsor licence or you require further advice or training on your duties, please do not hesitate to contact Suzanna Ghazal at [email protected].
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.