Understanding Your Duties as a Skilled Worker Sponsor in the UK: A Guide for Businesses and Legal Representatives

Background

Since the Brexit vote and subsequent implementation of new immigration rules in the United Kingdom, many businesses, particularly small and medium-sized enterprises (SMEs), have obtained sponsor licences to employ skilled foreign workers. However, obtaining a sponsor licence is not a regulated activity, and SMEs frequently seek assistance from service providers with limited immigration compliance experience. Consequently, many companies that have obtained sponsor licences may not have had a compliance meeting with their legal counsel, which is an essential step in comprehending their responsibilities as sponsors. So believe this article will give insight to the sponsors about their duties and how to best perform those duties. Also, other lawyers may use this article as a guide to educate their clients.

In recent years, the UK has seen an increase in the number of skilled workers coming from overseas to work for UK-based companies. As part of the UK government's efforts to regulate and monitor immigration, the Home Office conducts compliance visits to skilled worker sponsor licence holders to ensure compliance with immigration rules and regulations. If you are a skilled worker sponsor licence holder, it's important to understand what these compliance visits entail and how to ensure you are fully compliant.

The objective of the sponsorship duties?

Sponsorship is not a right but a privilege. The sponsorship system acknowledges that individuals who gain directly from migration should contribute to preventing any abuse of the immigration system. Sponsors are entrusted with a great deal of responsibility, so they must make sure they abide by immigration laws as well as other UK laws and refrain from acting in a way that is detrimental to the general welfare of society.

The aims of these responsibilities include, but are not limited to:?

• preventing abuse of immigration rules and sponsoring arrangements;?
• identifying early any patterns of behaviour that may be cause for worry;?
• correcting potential process flaws that can lead to such patterns; and?
• monitoring compliance with the Immigration Regulations, all sections of the Worker and
• Temporary Worker sponsor advice, and wider UK law (such as employment law)?
• ensuring that sponsors do not act in a manner that is detrimental to the public interest as a whole.?

The core duties

The sponsorship duties start from the day the client is it is granted with the sponsor since and it continues until the licence is surrendered or made dormant or revoked by the home office. Similarly, the sponsor's duty towards each employee starts from the moment it has assigned a certificate of sponsorship (CoS) to the employee and it continues until the CoS is withdrawn or the home office has been notified that the employer has stopped sponsoring the employee.

In the most simplistic terms, the core duties of a licensed sponsor include the following:

• Reporting
• Record keeping
• Complying with the immigration laws
• Complying with the wider UK law
• Not engaging in behaviour or actions that are not conducive to the public good

While prima facie these duties seem very obvious and simple, in practice making sure that a sponsor remains compliant with the duties could be significantly complex if there is a lack of proper understanding of the duties and/or there is a lack of effective implication of a systematic approach.

I will address each of these duties in this article to give the sponsoring companies?a better understanding of their obligations and how they can remain complaint.

Reporting duties

Who can report?

Essentially it's the lever?Level 1 User of the SMS system (which may well be the Authorising officer or someone else appointed as the Level 1 user. The Level 1 User is responsible for carrying out your day-to-day sponsorship activities using the SMS. Level 1 Users can perform the following actions in SMS:?

• assign CoS to workers
• ask for an increase in the number of CoS you can assign (your CoS limit)

? ask for more Level 1 User and add Level 2 Users to the SMS or remove them

? tell the Home Office about minor changes to your details

? tell the Home Office of changes in circumstances on the SMS

• report worker activity to us – for example, inform us if a worker goes missing or does not come to work
• withdraw CoS
• tell the Home Office of changes to work addresses
• change user details
• View information about the licence and Key Personnel
• access key messages we post from time to time
• apply to renew your licence and track the progress of your application

Also, the level 2 users can report. This is often a paid employee of the organisation in the Hr department. However, they have limited access. They can only create and assign CoS to workers and?report worker activity to us in respect of any CoS they have personally created and assigned, or which have been transferred to them by a Level 1 User.

Reporting duties related to the sponsored worker

As per para C1.11 of Sponsor Guidance Part 3: Sponsor duties and compliance as the sponsor you are required to report certain changes affecting your sponsored employees or your organisation within the timeframes specified.

If the sponsored worker does not start the role for which you are sponsoring them within 28 days of the specified start date (which can be found in the CoS issued). You must report within 10 working days.

Unauthorised Absences: If the sponsored worker is absent from work without your permission for more than 10 consecutive working days. You must report within 10 working days. While reporting you must include the following information according to para C1.18?

• the date the unauthorised absence started;
• if the worker has since returned to work, the date they returned;
• if the worker has not returned to work, details of any attempts you have made to contact the worker;
• whether you have made or will be making, any salary deductions for the; period of unauthorised absence, and what those deductions are; whether you intend to continue sponsoring the worker.

Unauthorised Absences for more than 4 week in a year: If the sponsored worker is absent from work without pay, or on reduced pay, for more than 4 weeks in total in any calendar year and a valid exception applies (see page 33 para S4.27 of SG PT2 for the list valid exceptions) you should report the period of absence via your SMS account.?However as per para S4.29 of SG PT2 if this absence is for more than 4 weeks you must report the absence and reasons via your SMS account. The Home Office may cancel the worker’s permission in that case you will have to stop sponsoring him.?

Changes in salary (reduction): If the sponsored worker’s salary or pay is otherwise (not related to absences) reduced from the level stated on their CoS (under S4.30 and S4.31 of SG PT2) you must report this to the Home Office using the SMS system. Also if the reduced/revised salary is below the salary threshold of the hourly and going rate, in that case, you must stop sponsoring the worker and you must tell the home office via your SMS account that you have stopped sponsoring the worker. You must report within 10 working days. However, it is advisable to do it ASAP. Also, you do not need to report salary increases.

Change of work location: If the sponsored worker’s normal work location changes. There’s no need to report day-to-day changes in work location if it is a one-off or occasional change of location or work pattern, a report must be made on changes to their regular working patterns. This essentially involves changes like:

• the working has moved or will be moving, to a hybrid working pattern of a regular basis, or?
• the worker will start working remotely from home on a permanent or full-time basis, or
• the worker will be working at a different site, branch or office of your organisation, or a different client’s site, not previously declared.

Significant changes to the Jon role: If there are significant changes to the details of the worker’s employment. Sponsors must report a change to a sponsored migrant’s job role within 10 working days of the change through the Sponsor Management System (SMS) portal. This includes temporary and permanent changes. Such as a change of job role or core duties, or a promotion, within the same occupation code as the current role. Of course, also the new role has to meet the salary requirement and must be eligible to be sponsored on the relevant route the current role is on the shortage occupation list, and the new role must be on on the last. However, ales requirements are most likely to be met because the new role will be in line with the same occupation code as the current role.

However,?there are circumstances where the changes in job roles may require making a new change of employment application. I will write another short article on this later.?

When you stop sponsoring a worker: You must report to the Home Office if you stop sponsoring a worker for any reason – for example:

• You become aware the worker’s application for entry clearance or permission has been refused, or their permission has been cancelled, and any administrative review of, or appeal against, that decision has finally been determined
• the worker decides not to take up the post, or you withdraw the job offer
• the worker’s contract of employment or contract for services ends earlier than the date shown on their CoS
• any professional registration or accreditation the worker is legally required to hold to work in the UK in their sponsored employment (such as GMC registration for a doctor) is withdrawn
• the worker is absent from work without pay, or on reduced pay, for more than 4 weeks and this absence is not covered by any of the exceptions (see above)
• you become aware the worker has been granted settlement (indefinite leave to remain), or permission on an immigration route that does not require sponsorship
• the worker resigns or is dismissed, or is made redundant
• we tell you a change in the details of the worker’s employment or salary you have reported is not permitted.

How to report?

Home Office has developed very hand step-by-step visual instructions as to how to report. Please go to this link and follow the instructions from pages 9 to 14.

Reporting duties related to the Organisation?

Reporting obligations equally apply when there are changes within your organisation’s circumstances. Except where you are replacing your Authorising Officer or Key Contact, you must report the change by no later than 20 working days after the date you became aware of the change.

Your Level 1 User must access your SMS account and use the ‘request changes to sponsor details’ function to report?or perform the following:

• Change of address of the organisation's Head Office.
• Change of address for the key personnel ( Authorising officer, Lvl 1 or Lv 2 user)
• Replace the Authorising Officer or Key Contact
• Amend the current Authorising Officer’s or Key Contact’s details
• Amend the organisation’s details, such as its name or the name of any branches, address, contact details, or head office details
• Report to the Home Office about changes to the organisation’s structure, such as more branches or sites, or new linked entities in the UK (or overseas if you are licensed on the Global Business Mobility routes)
• Report to the Home Office about a change in the status of any registration or accreditation you are legally required to hold to operate or trade in the UK, or which you are required to hold for sponsor licensing purposes (for example, if you are licensed on the Charity Worker route and you lose your charitable status)
• Report to the Home Office if the company stopped trading or got into an insolvency procedure
• Report to the Home Office if the organisation is subject to a merger, takeover or similar change
• Report to the Home office if anyone coming under the definition ‘you’ is convicted of a relevant offence listed in Annex L4 of Part 1: Apply for a licence
• Report to the Home Office about a change to the organisation size or charitable status
• Report to the Home Office of any other changes to your circumstances, such as adding or removing a representative, surrendering the licence, or if you substantially changing the nature of your business

How to report

Home Office has developed very hand step-by-step visual instructions as to how to report. Please go to this link

Record keeping

Record-keeping is a crucial aspect of any business or organisation, including during home office visits. It involves the systematic documentation, organisation, and retention of important documents and information. From employee files to financial records, proper record-keeping ensures that important information is readily available, accurate, and up-to-date. However, many sponsors often neglect the importance of maintaining a robust record-keeping system, leading to missing documents and inadequate documentation. This can result in serious consequences, such as fines and revoked licenses, as it can impede regulatory compliance and create legal and operational risks.?

The Home Office expects each sponsor to have :

• the current and past contact details of their sponsored workers.?
• the proof of the worker’s (updated) academic and professional credentials, CV, job references (if applicable) etc.
• a comprehensive record of the attendance and absences of their sponsored workers.?
• records of locations of their work, trails of salary payments, right-to-work check report?
• some proof as to the employment is a genuine vacancy?

To address these concerns you should ideally consider whether the worker’s file has copies of the following:

• Recent Passport copies.
• Recent visa copies. [From 6 Apr 2022, BRC, BRP and FWP holders will evidence their right to work using the Home Office online service only.?
• Proof of address [it is a good practice to seek updated proof of address every 6 months]
• Details of previous address [it is advisable to seek previous addresses for at least the last 2 years]
• Details of the next of kin
• Interview notes [notes when the employee was interviewed, if applicable]
• CV
• Copies of academic credentials?
• Job references [if applicable]
• Employment contract [Signed and dated]
• Copy of his CoS
• Details of his job schedule and hours they have worked
• Proper track of their absences
• Payslips and payroll information
• Pension information
• Right to work check report?

This is not an exhaustive list but this list largely gives an idea of the nature of the record-keeping the Home Office expects to see. You can have your software-based record-keeping system. Your business may need more documentation. The idea is only through proper record-keeping your company is in a much better position to be compliant with the Sponsorship Duties.

Complying with the immigration laws

To ensure maximum compliance with the immigration laws you must do the following :

The Worker and Temporary Worker sponsor guidance states that employers?

• must only employ workers who are appropriately qualified, registered or experienced to do the job,
• keep a copy of any registration document, certificate or reference that confirms they meet the requirements of the specific job.
• not employ workers who do not have the experience, qualifications or immigration permission to do the job in question.
• not assign a CoS where there is no genuine vacancy or role which meets the Worker or Temporary Worker criteria,?
• only allow the worker to undertake the roles permitted by the conditions of their stay,?
• only assign a CoS to workers who believe will meet the immigration requirements of the route on which they propose to sponsor them,?
• disclose (by adding a sponsor note) if they assign a CoS to a family member of anyone within the sponsor organisation,?
• only assign a CoS to a worker if they are satisfied they intend to and are able to, fill the role,?
• and understand and fulfil their responsibilities regarding the Academic Technology Approval Scheme (ATAS) requirement (if applicable).

This is not an exhaustive list but principle-based guidelines. As you can see many of these requirements can be met by simply establishing a robust record-keeping system and complying with the reporting obligations.

Complying with wider UK law

The businesses must comply with wider UK law, such as complying with UK employment law, illegal working and right-to-rent legislation, holding suitable planning permission, being registered with or approved by the relevant food authority, being registered with or inspected or monitored by a statutory body, only employing a worker who has had a Disclosure and Barring Service (DBS) check, complying with our requirements on safeguarding children, not engaging in any criminal activity, not being subject to UK or UN imposed sanctions, and paying VAT or other duty penalties.

Behaviour that is not conducive to the public good

The Home Office will not license organisations whose actions and behaviour are non-conducive to the public good, such as fostering hatred, justifying or glorifying terrorism, rejecting the rights of other groups or individuals on the basis of their sex, age, disability, gender reassignment, sexual orientation, marital or civil partnership status, race, or religion or belief. All sponsors have a responsibility to behave in a manner that is consistent with our fundamental values and is not detrimental to the wider public good.

Consequences of Non-Compliance

During a compliance visit, if a skilled migrant sponsor licence holder fails to comply with immigration rules and regulations, there may be severe consequences. The Home Office is authorised to conduct the following enforcement actions:

• Downgrading, suspending, or revoking the sponsor licence: The Home Office may downgrade the sponsor's licence, suspend it for a period of time, or revoke it entirely, which would prevent the sponsor from employing skilled foreign employees in the UK.
• Fines: The Home Office may impose sanctions on the sponsor for noncompliance with immigration regulations, which can be substantial and have significant financial repercussions for the business.
• Civil and criminal penalties: Depending on the severity of the violation, noncompliance with immigration regulations can result in civil and criminal penalties, including fines, penalties, and even imprisonment.
• Reputational Harm: Failing a compliance visit and being found in violation of immigration rules can cause reputational harm to the sponsor's business, including negative publicity and loss of trust among customers, employees, and business partners.