UK sponsors have access to an online “portal” called a Sponsor Management System (SMS) from where they can assign “Certificates of Sponsorship” or “CoS”, which are virtual documents an employee needs to make a sponsored work visa application.
A UK employer cannot assign “CoS” unless they hold a valid sponsor licence.
In order to obtain and maintain a licence, sponsors need to fulfil certain duties throughout the time of holding a licence. If any of these duties are breached or if the business is deemed to pose a “threat” to immigration control, the Home Office could decide to suspend the licence while further enquiries are undertaken.
The Home Office is increasingly undertaking visits to businesses, to check on compliance with the duties that need to be fulfilled by the sponsor.
Failure to pass such a visit could lead to the sponsor licence being suspended.
What are the sponsor’s duties while holding a sponsored licence?
There are five key duties that need to be upheld:
- The monitoring of immigration status for employees (i.e. making “right to work checks”)
- Maintenance of contact details of sponsored migrants
- Appropriate record-keeping for each sponsored worker
- Tracking and monitoring of any sponsored workers including absences and annual leave
- Compliance with all UK laws (including regulatory requirements for the business type) and ensuring that the employer only sponsors workers for genuine vacancies.
Under what circumstances would your licence be suspended
Your licence would potentially be suspended following a failed compliance visit from the Home Office. Visits can be physical but could also be remotely undertaken (such as a virtual call).
At a compliance visit, Home Office compliance officers would interview your key personnel and ask questions to determine whether your business operations, recruitment practices, sponsorship plans and records meet the appropriate requirements.
You can find more detailed information on sponsor compliance in some of our other A Y & J blogs.
If you prepare thoroughly for a visit, the likelihood of a suspension should be greatly diminished.
However, it is always worth understanding what a suspension would mean for you, if you received such a notification.
What does the suspension of a licence mean?
If, following a visit, your licence is suspended, you will be advised of this in writing by the Home Office.
You still have a licence following a suspension, but your business will not be able to assign any Certificates of Sponsorship (CoS) and your business will also be removed from the register of sponsors. Therefore, you will need to work with the Home Office to address the reasons for the licence suspension.
The suspension would affect not only migrants you plan to sponsor but also any recruits with a pending visa application. Anyone with a pending visa application, sponsored by you, would normally would have their visa application placed on hold until the outcome of the suspension is confirmed.
While you are waiting for the outcome of the suspension, you should continue to fulfil all of the duties required under the licence. Your current sponsored workers will be unaffected unless the suspension later leads to the licence being revoked.
(If the renewal of your licence is required during the period of suspension, you should continue to apply for your licence renewal, as usual.)
What are the most common reasons for a licence to be suspended?
Suspension of a licence will usually follow an announced or unannounced visit by the Home Office. The most common reasons for a licence suspension are as follows:
- The Home Office discovers that you have employed an illegal worker
- Concerns with the genuineness of the vacancy you are planning to /currently sponsoring
- Providing false information on a CoS
- Failure to pay your employee as specified by the sponsorship guidance / on the CoS
- Inadequate HR policies and procedures, particularly in terms of “right to work checks” for all employees
- Failure to meet the record-keeping requirements of the sponsorship (evidence of recruitment, job descriptions, contracts, contact details etc)
- Failure to report changes in circumstances for your migrant workers (e.g. a change in job title) or for yourself as the sponsoring organisation (e.g. a change of organisation address)
- Failure to cooperate at a Home Office visit (refusing to provide information or documentary evidence as requested by the compliance officer).
Can the decision be challenged?
If as a sponsor, you receive a suspension of your licence letter, you will have 20 working days to file representations against the decision.
Legal advice will help you determine whether there are factual errors or whether reasons for the suspension can be challenged with evidence.
In order to file representations, you will need to put your arguments in writing alongside your evidence which contradicts each of the concerns raised by the UKVI. Your evidence will be key in determining the outcome of your challenge.
Following any representations, the Home Office will undertake enquiries which will then determine their course of action, and which could result in the licence being reinstated, downgraded, or cancelled.
If the Home Office is satisfied that any breaches have been corrected and procedures changed in order to ensure the same issues do not arise again, the Home Office may reinstate your licence with an A rating. If, however, they reinstate with a B rating, this will be combined with a Home Office action plan; this will need to be paid for by your business and will need to be complied with within three months. Action plans will not be extended.
What happens if the licence is then cancelled?
If the breach is severe or is one that is listed on the mandatory grounds for revocation, your sponsored licence will be revoked.
Any revocation will cover all categories of the licence along with the complete removal of your business from the licence register. The leave of any sponsored workers currently employed by you will also be reduced to 60 days unless they have a shorter period of leave remaining (in which case no additional action will be taken).
Revoked sponsor licences cannot be appealed and you will only be able to make an application for a new sponsor licence at the end of the cooling off period which is normally 12 months from the date of revocation.
If your sponsor licence is suspended, it is paramount that you respond to the letter within 20 days if you wish to challenge the decision. Strong evidence is required to convince the Home Office to reinstate the licence.
If, having sought advice, you find that you cannot, or do not wish to challenge a suspension (and your licence is subsequently revoked), you must ensure you have addressed all the Home Office’s concerns, should you re-apply, after your cooling off period has lapsed.
Suspension of a licence can have devastating consequences especially if it results in the revocation of the licence. It is therefore paramount that any representations relating to your licence are dealt with appropriately and in a timely manner.
A Y & J Solicitors is a specialist immigration law firm, with extensive experience with sponsor licence suspensions. We have an in-depth understanding of immigration law and are professional and results-focused. For assistance with your application or any other UK immigration law concerns, please contact us on +44 20 7404 7933 or at Contact US today. We’re here to help!