21 Nov What if the employer fails a sponsor license compliance audit?
The Home Office (UKVI) appears to take the view that the ability to sponsor migrant workers in the UK is a privilege rather than a legal right. As a result, the employer has a duty to act in compliance with the immigration law, the Worker and Temporary Worker sponsor guidance, and the wider public good.
On the other hand, it falls on the UKVI the task to ensure that sponsors pose no risk to the immigration system throughout the validity of the sponsor’s license by carrying out compliance checks. Compliance checks can be announced or unannounced.
According to Workers and Temporary Workers: guidance for sponsors part 3: sponsor duties and compliance C7.3, the UKVI will take action if a company meets one or more of the following criteria:
- pose, or may pose, a threat to immigration control
- breach their sponsorship duties, or otherwise fail to comply with the Immigration Rules or Worker and Temporary Worker sponsor guidance
- are convicted of criminal offences or issued with certain civil penalties (such as those for employing illegal workers)
- have engaged or are engaging in behaviour or actions that are not conducive to the public good
The Home Office can take a range of measures including reducing the number of certificate of sponsorship (CoS) allocation; downgrading licence to a B-rating; suspending the licence, revoking the licence, cancelling the permission of sponsored workers to remain in the UK, and even reporting the employer to the police or other relevant authorities where a criminal or civil offence occurred.
Downgrading licence to a B-rating;
In general, Home Office will inform a company that the downgrading is under consideration and explain the reasons in writing. The license holder has 20 working days to respond, after which the UKVI will decide on the most appropriate course of action to take, and the decision will be notified in writing.
If a minor breach is involved and the employer has the ability and willingness to improve, the penalty will normally amount to reducing CoS allocation or downgrading to a B-rating on the grounds of C8.1 and C8.2.
C8.1. We may downgrade your licence from an A-rating or a Provisional rating to a B-rating – for example, if we believe you do not have the necessary processes in place to comply with your sponsor duties or have not provided information you held when we asked you to provide it.
C8.2. In general, we will only downgrade your licence for relatively minor breaches of the sponsorship system that we believe can be resolved by issuing an action plan. In more serious cases, we will suspend or revoke your licence.
In summary, not only do you need to ensure that your work permit licence is operating legally and compliantly, but you also need to cooperate with the checks and ensure that the information required is genuine and reliable.
A time-limited plan would be issued by Home Office when your license is downgraded, you have to pay the action fees and comply with it in order to retain the license to A-rating. Otherwise, the licence will be suspended or even revoked after a fixed period of 3 months.
No CoS could be assigned for sponsoring new workers unless you have:
- demonstrated your commitment to make improvements by signing up to the measures set out in an action plan
- paid the action plan fee, and
- had your A-rating restored (or achieved an A-rating if you had a Provisional rating before you were downgraded)
However, you could assign a CoS for sponsoring an existing worker to make extension applications.
According to the:
C8.20. We will normally conduct a compliance check with you only once during the period covered by your action plan. However, we reserve the right to carry out additional compliance checks if we have information or evidence to suggest you may be failing to meet your sponsor duties for a reason not covered by your current action plan.
C8.21. We will closely monitor your use of any CoS you assign whilst B-rated. If we find, either during the period of your action plan or later, that you have used any of those CoS to sponsor a new worker, we will revoke your licence.
Monitoring and compliance checks will be conducted while the license is B-rated, any breach at this point could lead to more serious penalties, such as the revocation of the company’s licence.
C9.1. If we believe that you are breaching your sponsor duties and/or pose a threat to immigration control, or are engaging in behaviours or actions that are not conducive to the public good, we may suspend your licence while we make further enquiries.
Suspending a licence occurs where there is an established breach of the regulations by the employer and there is sufficient evidence; Or the violation is supported by part of the evidence and the Immigration Service needs to conduct further investigations to confirm. Please notice that only if the latter is the case would the Home Office expect your statement and evidence within 20 working days.
Following appropriate action, the Home Office might decide to:
- re-instate your licence with an A-rating
- re-instate your licence with a B-rating (and issue you with an action plan)
- prevent you from assigning any new CoS
- prevent the use of any assigned, but unused, CoS
- revoke your licence
No CoS will be assigned when your license is suspended. However, it does not affect the visa status of the existing workers under the sponsor license.
Revoking your licence
The decision to revoke a licence is extremely severe and will normally occur in limited circumstances such as:
- you cease to have (or never had) a trading presence
- you cease to meet the requirements of the route, or routes, in which you are licensed
- there is a serious or systematic breach of your sponsor duties
- you pose a threat to immigration control
- you have been convicted of a relevant criminal offence (see Annex L4 of Part 1: Apply for a licence) or issued with a specified civil penalty
- you are engaging or having engaged in behaviour or actions that are not conducive to the public good
Once the license is revoked, all the sponsorships for workers will be invalid, and the workers will lose the status of remain.
The decision comes in the format of a written letter, and it is important to note that there is no right to appeal. Moreover, there is a 12-months cooling-off period before a company might be able to reapply for a licence.
Contact Our Immigration Team
For expert advice regarding any aspect of the UK visa application, please contact our immigration team on 0203 384 3075.