The Home Office can carry out an investigation (either announced or unannounced) at any time on any employer. Compliance action can be triggered by a tip-off from a member of the public, a competitor, or from intelligence from within the Home Office or another Government Department.
Organisations who hold, or are applying for, a sponsor licence should be separately prepared for a compliance visit by the Home Office, who will audit them to check they are complying with their sponsor licence duties, in addition to checking that there are no illegal working issues. Sponsor licences are valid for four years and as a sponsor licence holder, you can expect an immigration audit either during the application process or during the term of your licence
If illegal working is discovered either as part of a general investigation or a sponsor licence audit, the Home Office can issue significant penalties. Civil penalties start at £15,000 per illegal worker. Reputational damage can also follow given that those who receive civil penalties are named on a public register. If the Home Office consider that an employer had reasonable cause to believe that the employment was unlawful, they can refer the case to the Crown Office for prosecution. In Scotland, prosecutions are rare, however the penalties are extremely serious and include an unlimited fine, a custodial sentence and a potential referral to the Proceeds of Crime Unit.
Civil and criminal penalties apply equally to businesses who hold a sponsor licence, as well as those who do not. In addition, if a sponsor licence holder is issued a civil or criminal penalty for illegal working can lead to the loss of the sponsor licence itself and to the end of employment for all sponsored workers.
Prevention of illegal working is just one aspect of the duties of sponsor licence holders. They must also comply at all times with a number of other duties including record-keeping, compliance with wider employment laws and reporting duties. The Home Office will always check as part of any audit visit that the sponsor is complying with all of these specific sponsor licence duties.
The Home Office Sponsor Compliance Team will normally check:-
- Whether the Sponsor has carried out Right to Work (RTW) checks properly. They will do a dip sample of RTW checks retained for all employees and a separate dip sample for sponsored workers.
- Whether the sponsored employees are carrying out the same role as was set out in the Certificate of Sponsorship.
- That any non-sponsored international workers, for example, student visa holders are not working in breach of their visa conditions.
- Record-keeping for sponsored staff
- That there are relevant systems in place to avoid visa overstayers and to ensure employees carry out agreed roles
The Sponsor Compliance Team can:-
- Request to check physical and digital records
- Interview key personnel
- Interview sponsored workers and those who were previously sponsored but have now secured indefinite leave to remain status
- Follow up with telephone interviews and requests in writing
- Run checks with other Government bodies such as the HM Revenue & Customs (HMRC)
- Request real-time payment submissions for all employees
The Compliance Team will follow up in writing after a compliance visit.
The potential outcomes are:-
- No action
- Licence is suspended to a B-Rating - UK Visas and Immigration (UKVI) will provide a three-month action plan for you to address the problem areas. You will be charged a fee for this, currently £1,476 as at March 2023. You must pay the fee within 10 working days or the licence will be revoked. While your licence has a B-Rating, you will be unable to sponsor new employees. There will then be a further visit to check that you have addressed the highlighted issues. More information about sponsor licence rating can be found here.
- Licence is revoked (taken away). This will lead to the end of the employment for the sponsored workers, who will have their visas curtailed. They will have to leave the UK unless they are able to find a new sponsor or a new visa route within 60 days of any curtailment decision.
- Civil penalty of £15,000 per illegal worker.
- Referrals to other Government departments, including HMRC, and the relevant prosecuting criminal authorities.
If the Home Office decide to take compliance action on the licence, i.e. suspension or revocation, these decisions can be challenged by way of making representations to the Home Office through a solicitor. A challenge can also be made by way of a court procedure called Judicial Review. In Scotland, Judicial Reviews take place at the Court of Session, the highest Scottish civil court. Judicial Review can be successful but, like all court procedures at a superior court, the process can be very costly and time-consuming.
Civil Penalties can be challenged through a statutory appeal process. If you are unsuccessful in this process in Scotland, you have a right of appeal before the Sheriff Court.
Specialist legal support at an early stage is strongly recommended for all employers who face an audit from the Home Office. The earlier representations are made and your interests robustly defended, the better the chance of a positive resolution and avoiding business disruption and reputational damage.
If you are charged with a criminal offence, this will be prosecuted at the Sheriff Court and legal representation will be required.
At Thorntons, we regularly support employers on their immigration compliance duties. For sponsor licence holders and those applying for a sponsor licence, we provide tailored training for key personnel on licence duties, including on the Right to Work. We can also provide a mock audit service, which can be done on site or remotely. Clients value this service as it allows them to rectify any deficiencies in HR processes and identify potential issues with the lawfulness of employment, before an audit takes place.
The team is also experienced in supporting clients in crisis management situations, for example challenging a civil penalty or a decision to suspend or revoke a sponsor licence or defending you if you receive a criminal penalty.
Call the Thorntons Immigration Law team on 03330 430350 if you would like to discuss Thorntons specialist immigration team carrying out a mock audit or you need our help in a crisis management situation, or complete our enquiry form and we will contact you.