All Tier 2, 4 and 5 sponsors can expect the Home Office to visit them at some point during the duration of their sponsor licence. This article concentrates on compliance visits for sponsors in Tier 2 and/or Tier 5.
It is also possible to have a compliance assessment, which takes place before a licence is granted. The compliance assessment takes a different form to a compliance visit.
Purpose of the visit
The Home Office will be assessing how far the sponsor is complying with its sponsor obligations under the Tier 2 and 5 Sponsor Guidance.
The visit needs to be taken very seriously. If the Home Office are not satisfied with the organisation's performance, this could lead to the licence being revoked, and sponsored migrants will lose their jobs.
The visit can be announced or unannounced. The Home Office may be acting on intelligence they have received, or it may just be that the sponsor is due to have one.
Preparing for the visit
You may have some notice of the visit. If this is the case then make sure that the Authorising Officer and any other Key Personnel (Key Contact, Level One User) are available on site. You may want your legal representative to be present as well.
Remind yourself of the Sponsor Guidance. Be clear what your duties are and how far you meet them. You will need to ensure that your human resources procedures remain robust and have been correctly followed.
In files for all personnel, check that correct right to work checks have been carried out. Ensure that copies are available of all sponsored migrants' files, past and present. Check that all required documents are present in the files. If anything is missing try to locate it elsewhere in your filing systems.
If you notice any compliance issues during this time then try to identify if it is a one off error or if it has been repeated. If you have not already done so, you should seek legal advice. Do not try to cover the problem up or lie about it. Identify how the problem happened and consider how you can prevent it. Commit this new policy to writing.
If the error is a one off error then find evidence of when the procedure has been followed correctly in other files. If you relied on the advice of a legal representative or the Home Office when organising your systems that way then try to find evidence of this.
Ensure that all documents are easy to find and that you know your way round the files. It may be useful to have a ‘master’ list of sponsored migrants, their roles, start dates, visa expiry dates or date sponsorship ended. and You should be able to easily locate key dates, such as visa expiry dates. If the Home Office have requested any documents then these must be available at the time of the visit. If they need to be requested from an external archiving site then do this as soon as possible and ensure you have this in writing.
Let your workers know the visit is happening. They may be nervous. Let your workers know that only work permit holders and Tier 2, 4 and 5 migrants are required to speak to the Home Office. Do let your sponsored migrants know that they may be interviewed. Remind them that they should give truthful answers. They will be asked to sign their interview records when they are finished, and they should not do so unless they have read the record and are content that it is an accurate record.
During the visit
If you have an unannounced visit then identify who is on and off site. If the key personnel are not on site then another relevant person can be spoken to instead. The visit will normally continue.
It is a requirement of the sponsor guidance to be co-operative. The Home Office sponsor compliance team cannot force entry to your premises but it is unlikely you will be able to keep your licence if you do not allow them access to your premises unless there is a very good reason, with evidence. Try to assist the Home Office as much as possible. If you have been warned of the visit you will be able to minimise the length of the visit by having everything to hand.
If you do not have a document to hand but you know you do have it then inform the Home Office of this and confirm how long it will take you to get it. You may be given three working days to provide it after the visit.
The Home Office will have an idea of what they want to see from you. They will normally ask for a selection of personnel files and interview the key personnel, as well as sponsored migrants. At least three migrants will be interviewed (or all migrants if you sponsor fewer than three), and normally no more than 10. The Authorising Officer will also be interviewed.
Your sponsored migrants may be asked to show evidence of the work they have been doing. The Home Office may ask to see, for example, emails from them to clients. You may wish to speak to the person responsible for data protection to ensure that no confidentiality rules are broken. The Home Office will normally accept documents that are redacted for sensitive or confidential information, providing they can see the nature of the work that has been carried out.
At the end of the visit, ask for a complete copy of the compliance officer's notes of the visit. Read these as soon as possible and seek legal advice if you identify any discrepancies. If there has been a significant misunderstanding you may wish to respond before the outcome of the visit is known.
After the visit
You will receive a written notification of the outcome of the visit. The Home Office will confirm which documents you may destroy from a sponsor licensing perspective. You should be aware that you may need to keep these documents for other reasons, such as evidencing right to work checks have taken place, or for tax reasons.
Your licence will either be maintained with an A-rating, downgraded to a B-rating, suspended or revoked.
If your licence is downgraded to a B-rating then you must improve your compliance procedures enough to be upgraded to an A-rating within a maximum period of three months. You will be given an action plan with set terms of how you can improve your performance and you will be required to pay a fee. You will be visited again at the end of your action plan.
If your licence is suspended then you will need to seek legal advice urgently. You will normally be given 20 working days to respond to the suspension with representations but the sooner you respond the better. If you do not respond or if your representations are not accepted then your licence will be revoked. It is very difficult and expensive to challenge a sponsor licence revocation, so your response must be carefully prepared.
Contact our immigration barristers
For expert advice in relation to a Home Office Compliance Visit, contact our business immigration barristers on 0203 617 9173 or via our enquiry form.