When UKVI suspends an organisation’s Tier 2 sponsor licence, one common ground is where UKVI alleges a failure by the sponsor licence holder to comply with UK law generally. Senior associate, Jessica Taylor, shares her experience of advising sponsors on this aspect of sponsor compliance.
UKVI audit
A decision to suspend a sponsor licence usually takes place following a UKVI compliance visit. A UKVI compliance visit can take place at any time throughout the duration of the sponsor licence.
UKVI’s officers who conduct a compliance visit will be looking to ensure that the sponsor licence holder is:
- compliant with the general sponsor duties;
- is sponsoring workers in genuine vacancies, and;
- is complying with UK law generally, such as the National Minimum Wage Act, health and safety laws, etc.
Whilst UKVI can check compliance with all relevant pieces of legislation, the following key areas are often scrutinised.
Annual leave entitlement
In the UK, workers are entitled in law to statutory annual leave.
We have seen suspension letters in the past where UKVI has alleged that the employer has prevented the employee from using all of their statutory leave entitlement. It is therefore important that sponsor licence holders ensure that employees are able to take their statutory annual leave entitlement.
It is not always the case that UKVI’s allegations are correct. For example, we have assisted sponsor licence holders in defending themselves against this allegation on the basis that UKVI’s calculations were incorrect because the sponsored migrant’s reduced hours had had an effect on their leave, they had taken time off on an unpaid basis, etc. Providing evidence is filed which supports these claims, UKVI will usually back down. Of course, it is important that sponsors have made the relevant report via the Sponsor Management System in relation to the change of circumstances being cited.
National Minimum Wage
Those who are sponsored under the Tier 2 (General) or Tier 2 (ICT) routes are subject to a minimum salary requirement. However, this minimum salary requirement does not apply to those who are sponsored as a Tier 2 (Minister of religion). Instead, those sponsored under this category must receive pay and conditions which are at least equal to those given to settled workers in the same role. This can be a traditional salary, stipend, board and lodgings or a combination of these, but it must comply with, or be exempt from, the National Minimum Wage.
The National Minimum Wage increases relatively frequently so where this is paid, it is important that sponsors increase payments as necessary in order to remain compliant.
Certain individuals are exempt from the National Minimum Wage. In relation to Tier 2 (Ministers of Religion), this is most frequently those who are living and working in a religious community. If a sponsored worker is exempt from receiving the National Minimum Wage due to this, it is important that a sponsor explains this on the Certificate of Sponsorship when assigned. They should also be ready to provide evidence during a UKVI visit.
DBS checks
The Tier 2 Sponsor Guidance requires Disclosure and Barring Service (DBS) checks to be performed in relation to those who will be undertaking a regulated activity for children. Such a check would be in addition to the criminal record check that individuals applying for a Tier 2 visa from overseas, and who will work in certain specified roles, must obtain.
Whilst it will be obvious that those in certain professions, such as teachers and social workers, will require a DBS check, it is not always as clear in relation to other roles, for example, a religious or charity worker whose work includes some activities with children. It is therefore important that any sponsor whose staff may be working with children carefully reviews and complies with the statutory guidance.
We have assisted sponsors in proving to UKVI that certain activities do not fall within the requirement for a DBS check and this does often come down to close scrutiny of the exact duties and also taking account of other relevant points, for example, the supervision of the worker.
Whilst any breach may lead to UKVI revoking the sponsor’s licence, failure to perform a DBS check, when required, is an issue that UKVI will take very seriously. Usually a clear breach will result in the sponsor’s licence being revoked so we strongly advise sponsors to carry out regular reviews of this aspect of compliance.
Sponsor licence compliance: How we can help
The above are just some of the key areas where sponsor licence holders are required to comply with UK law.
We are experienced in helping organisations meet their sponsor duties and we also offer compliance reviews. If you have any concerns regarding a failure in compliance our team would be pleased to assist and can be contacted here.
