COMPLIANCE & AUDIT

Compliance visits:  no room for errors!

The Main Obligations

As a Licence holder, you have a number of on-going obligations, which must be met at all times. The main obligations include:

  • checking that your sponsored workers have the necessary skills, qualifications or professional accreditations to do the job you have sponsored them for – you must keep copies of documents corroborating this
  • assigning certificates of sponsorship to workers only when the job is suitable for sponsorship (i.e the role is sufficiently skilled as per the UKVI’s current Codes of Practice)
  • informing the UKVI if your sponsored workers are not complying with the conditions of their visa

Failing to meet your responsibilities could have serious repercussions. Your licence may be downgraded, suspended or even withdrawn. As a sponsor you will also have a number of duties which include the monitoring of your employees and reporting changes to your business:

Monitoring Employees

The UKVI will expect you to have HR systems in place allowing you to:

  • monitor your sponsored worker’s immigration status
  • keep copies of the relevant document (as per the UKVI’s prescribed list of suitable documents) for each employee, including passport and right to work information
  • track and record employee’s attendance
  • keep employee’s contact details up to date at all time
  • report to the UKVI, in a timely manner (10 working days) if there is an issue, for example if the sponsored worker never turned up or has stopped coming to work

Report changes to your business

You will also be expected to report any significant changes in your business circumstances within 20 working days. These changes would include the following scenarios:

  • stop trading or become insolvent
  • substantially change the nature of your business
  • are involved in a merger or take-over

The UKVI must also be informed if there is a change of address or to the licence’s key personnel.

Audit / Compliance Visits

The UKVI may choose to carry out an audit prior to licensing your business. Alternatively, the audit may take place at a later date.

Post licence compliance visits usually occur as a result of intelligence of non-compliance, the sponsor hitting a trigger point for the number of overseas nationals they have sponsored or following the receipt of a sponsor renewal application.

Whilst some of our medium size clients have been audited several times, in our experience audit of small sponsors are not so frequent.

What to expect during an audit/compliance visit

The visit could be announced or unannounced. Most visits are now unannounced.

As per the sponsor guidance, as an aspiring or already licensed sponsor, you must allow Home Office / UKVI’ staff access to any of your premises or sites under your control. If you refuse access, you will be deemed as non-compliant, which may result in your sponsor licence being refused or revoked.

The audit is carried out by a compliance officer (‘CO’) who is not a warranted (i.e. they cannot legally force entry onto your property).

The CO will ask to speak to the licence ‘key’ personnel, failing this, the owner, a director or anyone involved in the day-to-day running of the business.

Outcomes Of An Audit

The possible outcomes of an audit are

  • the sponsor licence application is approved or, if you are already licensed, you maintain your current licence status
  • refusal of the sponsor licence application or, if you are already licensed, you may have:
  1. your allocation of CoS reduced or removed; or
  2. your licence downgraded to a B-rating and be issued with a time-limited action plan; or
  3. have your licence suspended; or
  4. have your licence revoked

The primary focus of the CO during a compliance visit will be on:

  • whether, if licensed, you are meeting your sponsorship obligations;
  • whether, if yet to be licensed, you have the necessary systems and procedures in place to meet your sponsorship obligations;
  • verifying the accuracy of the information given on your sponsor licence application;
  • whether you are complying with your obligations to prevent illegal working

During a post-licence compliance visit, a CO will assess:

  • your HR systems to ensure you are meeting your sponsor duties
  • whether the business’ activities pose a threat to immigration control
  • whether the original number of CoS requested on the sponsor application or annual request is still justified
  • whether sponsored workers working for you are complying with the conditions of their leave to stay in the UK
  • whether you continue to have a trading presence
  • whether sponsored Tier 2 or 5 migrants were recruited to fill genuine vacancies with suitable skill level and pay

 

As part of the assessment the CO will check your immigration files and carry out interviews with your concerned workers.

For roles that were subject to the resident labour market test (RLMT), they will want to find out whether or not you made a genuine effort to find a resident worker before offering the position to an overseas worker. In most cases, they will want to see a copy of the advertisements, a list of the shortlisted candidates, detailed notes from their interviews and the reasons as to why they were not offered the role.

The CO will also want to satisfy themselves that the role was sufficiently qualified (Graduate which equates to Regulated Qualifications Framework RQF level 6) and the salary meet the minimum requirements as per the current Codes of Practice. They could demand to see the migrants’ qualifications, proof of that they meet the English language requirements, if applicable, and payslips/P60s.

How to prepare for an audit

  • Check that the Right to Work check has been carried out correctly
  • Check that the evidence supporting the outcome of RLMT are ready for inspection
  • Check that the roles and salaries of your sponsored workers have not changed since your sponsored them, and if so, was the change allowed (i.e. job within the same SoC code or normal annual salary increase..etc)
  • Check that you have evidence of your sponsored workers’ qualifications, including English language, when applicable
  • Check that you can produce payslips and / P60s on demand
  • Check that your sponsored workers’ contact details are up to date
  • Check that you sponsored workers’ absences records are up to date
  • Check that any ‘reportable’ changes has been reported via the SMS
  • Check that the details on your licence are up to date (i.e. key personnel, address, type of business..etc)

For further information please contact us.