The focus on immigration compliance is today greater than ever and is continuing to increase as we see this shift towards more active enforcement by the Home Office, through increased civil and criminal penalties for non-compliance and the suspension and revocation of sponsor licences.
2008 saw the introduction of the new civil penalty regime for prevention of illegal working, with further revisions to the scheme under the new government coming into force in 2014, doubling the amount an employer can be fined from £10,000 to £20,000 per illegal worker and making it easier for such penalties to be enforced. There are, in addition, criminal sanctions for breaches of immigration law and since 1999 new legislation has resulted in the creation of a staggering 84 new immigration offences. With the Prime Minister’s pledge to “take tougher action against employers of illegal migrant workers”, the last few years have also seen an increase in the number of prosecutions and convictions for illegal employment.
Of course, while criminal sanctions are usually reserved for the most severe breaches of immigration law, civil penalties for non-compliance can have equally significant consequences, operationally and reputationally. Only last week, the Home Office revoked two Tier 4 licences, exercising the maximum sanction available to them by banning these sponsors from the register for 24 months. As there is personal liability for any breaches under the licence, the ban has consequently also extended to all the Key Personnel named on these licences – that is, the Authorising Officer, Level 1 and 2 users and Key Contact – meaning these individuals are now prohibited from acting in the same capacity for a further 2 years. Should these individuals subsequently be nominated as Key Personnel in a different sponsor licence application, that application will fall for mandatory refusal.
Given that legal representatives often act as the Key Contact on sponsor licences, this also exposes immigration firms to the full extent of liability for breaches, even where not directly responsible for the act of non-compliance. This can have a knock-on effect for all clients that representatives act for.
This worrying trend towards progressively severe and far-reaching penalties being applied in practice means that it is more crucial than ever that Points Based System sponsors are fully abreast of all their obligations under both immigration and employment law . Although these two regimes are very much interconnected, there can at the same time be a disparity between how the respective obligations under each are to be met by employers.
From an immigration perspective, we would urge sponsors to review HR policies on a regular basis as well as each time the Immigration Rules change. We have seen that with all the changes in immigration law, policy and procedure that have taken place over the last few years and even in the few months since the Conservative government came into power, it is becoming increasingly difficult for employers to hire the foreign nationals that business requirements demand, whilst working within the constraints of the current Rules and keeping on top of the requirements for maintaining immigration compliance.
Furthermore, it is not always obvious when a change in procedure calls for an adjustment in HR practices, such as the need to complete repeat Right to Work checks in the case of entry clearance applications where applicants receive a 30 day visa and subsequently a Biometric Residence Permit card. Where such practices are not being carried out, or are being carried out inconsistently across the HR team, this can give rise to a finding of repeated non-compliance by Compliance Officers and resultant penalties, despite the omissions having been completely inadvertent.
Given the personal and associated liability for non-compliance under a sponsor licence, it is essential for sponsors that the eligibility of candidates under Tier 2 or Tier 4 is comprehensively assessed and that any information given as part of a Certificate of Sponsorship (CoS) or Confirmation of Acceptance of Studies (CAS) is accurate. Where circumstances change, these must either be reported to the Home Office within 10 working days or, depending on the nature and extent of the change, a new application for leave may need to be submitted before the change can take effect. At a compliance audit, the Home Office will cross-check the information given on the CoS/CAS and any sponsor reports (or lack thereof) against the worker’s circumstances as well as the sponsor’s systems and processes. Given the reliance of the information provided in these documents, any repeated or significant errors can result in the suspension, revocation or downgrading of a licence and, in turn, open up all parties named on the licence to significant risk where immigration compliance is not pro-actively managed.
Should you require any further advice on UK immigration compliance, please do not hesitate to contact us.