At any one time, there are usually around 29,000 companies with Tier 2 and/or Tier 5 sponsorship licences. A sponsor licence is issued for four years at a time, and during this time, a sponsoring company can reasonably expect to be visited by a Home Office immigration inspector.
Home Office inspectors will typically make around 600 visits a year to companies who have made new applications for sponsorship licences and around 1000 visits a year to companies who already have a sponsorship licence. 40% of these follow-up visits will be unannounced meaning that inspectors arrived at business premises belonging to sponsors with no prior warning.
Following these visits, the Home Office will then take action against a third of those companies they visit by suspending their sponsorship licences and 1 in 2 of licence suspension results in the full revocation.
The Home Office will also issue civil penalties with a total value of around £10 million a year to those companies found to employing people without permission to work in the UK who also do not have a statutory excuse by following the UK's right to work processes.
What is the purpose of an audit?
Sponsorship is based on 2 underlying principles:
- ‘Employers should play their part in ensuring that the immigration system is not abused’, and
- ‘That sponsors are reputable companies looking to genuinely take workers on.’
Sponsorship licences are suspended and revoked where, following an audit, the Home Office conclude that the sponsor is not adhering to the letter or the spirit of the relevant immigration rules and guidance, and so, by either negligence or deliberate malpractice, the sponsor is incorrectly and perhaps unlawfully sponsoring workers in the UK.
What happens in an audit?
An audit usually begins with the inspector interviewing the Key Personnel who are linked to the sponsorship licence, such as the Authorising Officer and/or any Level 1 users. The inspectors also might speak privately with sponsored workers. In over half of visits, the visit will be communicated to the company ahead of time and usually, information is then sent with regards who they would like to speak with and which personnel files they would like to inspect.
The interviews with those involved in the sponsorship process are to gauge the level of understanding of the sponsorship process within the company and to also assess how and why the company sponsors non-EU nationals. The interviews with sponsored workers are to assess whether they are working as sponsored and whether the processes explained by the Key Personnel are in effect or not.
The inspector will then ask to see a list of employees, usually, a list that separates those with a permanent right to work in the UK from those with a temporary right to work. From that list, he or she will request to see their personnel files, whether saved digitally or in paper file and will record the evidence that demonstrates a right to work. For any sponsored workers, the inspector will assess the evidence of their sponsorship and whether or not it is consistent with his or her employment.
What happens after an audit?
The inspection doesn’t end after the inspector leaves. The inspector will return to the Home Office and communicate his or her findings to the sponsorship compliance unit of the Home Office. This is the team that can access a company's sponsor management system to review any certificates of sponsorship and/or sponsor notes. The compliance team will measure the evidence taken from the inspector against the evidence it holds or has access to and make a decision on the outcome of the audit. The Home Office might communicate with the sponsor at this time if any further evidence is required.
In most cases, where an audit has been completed with no further action to be taken by the Home Office, the sponsor will not hear anything more. However, if the Home Office have concerns that there are grounds to revoke a sponsor’s licence, then they will write to the sponsor to notify them that their sponsor licence has been suspended and of the reasons why.
Where a sponsorship licence has been suspended, the Home Office will invite the sponsor to respond to the points raised in the suspension letter. Where a sponsor cannot sufficiently address the specific points raised by the Home Office, the sponsor’s response will be met with a notice to revoke the sponsorship licence.
What does it mean to have a licence revoked?
There is no right to appeal a decision to revoke a sponsorship licence. If a sponsor disagrees with a decision and there is merit to an argument that the Home Office was incorrect in their decision, the only legal remedy available is an administrative review at the High Court. Administrative reviews are costly and time-consuming and so few revocation decisions are challenged beyond an initial Pre-Action Protocol letter before claim.
Following a revocation, any Key Personnel, owners or directors of the business are prohibited from making another application for a sponsor licence for a period of 12 months.
Anyone being sponsored by a company who then has a sponsorship licence curtailed can expect for their visa to be cut short. This normally means their visa cut short to have just 60 days remaining, although the Home Office can also curtail a visa to less than 60 days. What results then is the loss of key talent, often to competitors.
How can you prepare for an audit?
The best-prepared sponsors know the visa process really well and have an excellent knowledge of what they need to hold and what they need to do. The better prepared your company is for the questions that you will face and the evidence that you will need to present, the higher the chances that the audit will be quick and a positive experience.