For organisations seeking to bring employees into the UK, understanding the regulations surrounding their immigration duties can be an onerous task. David Hugkulstone, director of Smith Stone Walters, examines the UKBA Sponsor Guidance, and stresses that, to avoid penalties, it must be fully read, understood and complied with.
“If we could ever make red tape nutritional, we could feed the world.” I wonder if this quote originated from a customer of the UK Border Agency (UKBA).
The current Tier 2 and Tier 5 Sponsor Guidance for UK employers to navigate their way through runs to 125 pages. This excludes the six different appendices and the 42-page How to Use guide.
When you consider that these documents can be routinely revised two or three times every year, is it any wonder that many HR professionals are left scratching their heads and playing catchup to ensure they maintain compliance when it comes to hiring and reporting on a migrant population?
There are currently more than 26,000 employers registered with the UKBA as sponsors of migrant workers. Regardless of whether these licence-holders are established multinational organisations or micro-employers who have just commenced trading in the UK, the message is clear: you must adhere to the published sponsor-based responsibilities and duties and keep up to date with any changes made by the UKBA.
Since the phrase 'you must' appears more than 250 times in the 125-page published guide, employers should take note that there is no escaping these obligations without potentially facing punitive action.
Unfortunately, the prescriptive list of sponsor duties an employer is expected to follow leaves little room to run certain HR-based processes ‘on trust’. Each duty mentioned within the guidance for sponsors must be adhered to.
For example, many employers may not wish to maintain an up-to-date history of each staff member’s contact details, or, indeed, retain flawless records on the day-to-day whereabouts of all their migrant staff, especially the most senior ones. However, the omission of such simple measures routinely catches out employers when audited by the immigration authorities.
One punishment increasingly being given by UKBA visiting officers to employers who have neglected or overlooked the published sponsorship duties is to recommend their sponsor licence be downgraded to a ‘B’ rating. Such action is usually taken where it is clear that the UK employer has little or no awareness of its responsibilities towards record-keeping and/or reporting activity relating to its migrant staff.
If a company is awarded a B rating, it must adhere to an action plan which will include all the steps the employer must take to enable it to return to an A rating within a three-month period. Aside from the indignity of holding a B rating, the company would not be allowed to assign any certificates of sponsorship to new migrants and would be charged £1,500 towards the cost of working with the UKBA to re-establish an A-grade status. Being downgraded should, therefore, be avoided at all costs.
As the UK immigration representative of a number of UK-based organisations, we have observed more than our fair share of UKBA sponsorship-based audits. In our experience, the vast majority of UK employers come through a UKBA inspection process relatively unscathed, since they recognise compliance is an important issue, and take the necessary steps to ensure they adhere to the sponsor guidance.
Wading through the bulky UKBA publications may be onerous. However, those employers holding a sponsorship licence are left with no choice but to engage with it. As the UKBA says, ‘you must’.