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Care sector under scrutiny
Preparing for the Home Office immigration inspections

Anne Morris looks at what care providers can do to prepare for a Home Office immigration inspection and avoid losing their ability to hire from overseas.

Years of constricted budgets across the UK care sector have led to legacy administration issues, leaving care providers exposed to Home Office scrutiny and penalties for failing to comply with their immigration duties.

Recognising the systematic failings, the Home Office is now targeting the care sector with site inspections. Those providers that fail an immigration inspection are seeing their licence to hire foreign nursing staff being revoked.

Immigration – a solution to nursing shortages

Faced with shortages in UK nursing staff and mounting costs of agency workers, providers have turned to hiring nurses from outside the EU to meet their staffing requirements.

Before any UK organisation can employ non-EEA workers, they must first apply to the Home Office’s UK Visas and Immigration department (UKVI) for a Tier 2 sponsor licence. A Tier 2 sponsor licence permits the ‘sponsor’ to recruit from outside the EU within specific skilled categories of work, including nursing.

Devised to provide employers with greater autonomy when hiring from abroad, the sponsor licence allows employers to issue Certificates of Sponsorship (COS) to workers who they will be bringing to work in the UK.

However, the opportunity to access the global workforce also brings increased burdens on employers to take responsibility for reducing illegal employment, by complying with specific requirements.

What are your duties as a Tier 2 sponsor?

As a sponsor licence holder, you are required to meet the following duties:

  • Keep copies of relevant documents for each employee, including passport and right to work information.
  • Verify that migrant workers possess the ‘necessary skills, qualifications or professional accreditations’ to undertake the specific role.
  • Assign a COS only where the role in question is suitable for one.
  • Check your employees’ immigration status on an ongoing basis.
  • Record employees’ attendance.
  • Keep employee contact details up-to-date.
  • Report changes in circumstances relating to the sponsor licence to UKVI within 20 working days, for example place of work, role and duties to be undertaken, salary and hours of work, work start and end dates.
  • Notify UKVI if any of your sponsored workers are not complying with the conditions of their visa, and report to UKVI if there is a problem, for example if your employee stops coming to work.

Care sector immigration inspections – how compliant are you?

Once granted, a Tier 2 sponsor licence is valid for four years. At the end of this period, sponsors can extend their permission by making an application to renew their licence.

As part of the renewal process, employers can expect an on-site compliance inspection by UKVI. The visit is designed to assess whether you have met your sponsor licence duties and as such, qualify to retain your licence to hire from overseas.

Following the site inspection, UKVI will produce a comprehensive audit report with any discrepancies identified. You will have an allocated time to reply to this report and to provide a response to any issues identified.

In instances of non-compliance, the outcome of this audit could result in your Tier 2 sponsor licence being revoked and any overseas sponsored nurses having to leave the UK – a scenario which has become increasingly common across the care sector.

Legacy issues causing operational weakness

What is becoming clear through UKVI inspections is that care providers are struggling to meet their duties in relation to managing overseas nurses, largely due to widespread legacy issues affecting the social care sector as a whole.

Providers have been working to challenging budgets for many years now. This has led to the development of operational weaknesses, including from an immigration compliance perspective, low standards of administration in maintaining HR records of Tier 2 overseas workers, and failure to keep pace with changes in the Immigration Rules and the duties placed on providers.

Current management teams are now wrestling with these legacy issues and dealing with the fall-out of having operated as a sponsor licence holder without the records or systems in place to meet their responsibilities as a licenced sponsor.

The harsh reality is the majority of care providers do not have the in-house resource for this work.

Recognising this, the Home Office is now targeting the care sector with announced and unannounced compliance visits, knowing they will find an element of non-compliance in this large community of migrant workers.

While a visit should be expected as part of a licence renewal application, care providers where key issues were raised following a previous UKVI audit, can expect more frequent and unannounced visits.

Common areas of immigration compliance risk

Audits are showing common areas of non-compliance in the UK care sector, including:

  • HR paperwork relating to overseas workers is either below the required standard or non-existent.
  • Instances where nurses have been employed by UK care providers without having passed the required English language and competence exams within the required timeframes.
  • Failure by providers to track nurses’ Nursing and Midwifery Council (NMC) registration application progress, and providing little or no support in preparing them for the exams.
  • Poor management and processes relating to so-called ‘List B’ workers.  List B workers hold time-limited permission to work in the UK. Their employers have a duty to check their continued Right to Work on a regular basis, as prescribed under UKVI’s ‘List B’ of acceptable documentation, to ensure their permission has not expired.
  • Low levels of reporting on the online ‘Sponsor Management System’ (SMS) regarding NMC PIN and salary band changes, leavers, switchers and changes in circumstances regarding work location.

Minimising the risk of immigration non-compliance

With so much at stake, inspections have become incredibly stressful and daunting for social care management.

There are a number of steps care providers can take to prepare for a site visit, to ensure compliance with immigration duties and avoid sponsor licence revocation.

  1. Get the basics right. You should have specific HR policies in place for the recruitment, management and record-keeping relating to foreign staff. Policies should provide guidelines, standards and processes to ensure your operations are compliant with your immigration duties. The Home Office will request sight of your HR policies as part of the site inspection.
  2. Keep up-to-date. The Home Office expects all sponsor licence holders to be up-to-date on the duties placed on them. Ignorance is no defence. UK Immigration Rules change frequently, and invariably impact on employers and what they need to do to remain compliant. Subscribe to updates on changes to the rules to ensure you stay informed and can react accordingly by adapting policies and processes and communicating these changes internally.
  3. Be clear on roles and responsibilities. The Tier 2 sponsor licence requires holders to nominate ‘Key Personnel’. These positions must be formally assigned to individuals within your organisation, and records kept as evidence. In addition, ensure all operational duties are formally assigned, addressing circumstances such as planned and unplanned absence cover and leavers.
  4. Train your people. Appropriate training of relevant staff involved in your organisation’s immigration compliance processes is essential. All personnel involved with recruitment, on-boarding and line management of foreign nursing staff should be trained and skilled in meeting immigration duties. Evidence of an ongoing commitment to best practice is a strong indicator to the Home Office of compliant operations.
  5. Support migrant nurses. Across the sector, it is clear that there is a lack of support for foreign nurses as they undertake their assessments to secure their right to stay and work in the UK. Providing a support framework to enable nurses to carry out their studies and sit the assessments within the required timeframes can help ensure your nursing staff meet their obligations and consequently, remain legally employed by you.
  6. Practice makes perfect. A mock audit – including mock interviews with staff most likely to be interviewed by the Home Office – is extremely useful in highlighting issues before the Home Office arrives. By undertaking a full review of all documentation and supporting HR paperwork against Home Office standards and requirements, you can identify records which are lacking in content as required by the Home Office or where information has not been kept up-to-date.
  7. Record everything. The main area of compliance risk is record-keeping. The Home Office is looking for evidence of a sustained approach and consistent standards when managing sponsor licence documentation. Also ensure your record-keeping extends to the full degree of the requirements. Immaculate paperwork will be let down if you are unable to show records of where individual migrants are currently and have been working. If in doubt – keep it.

Avoiding Home Office scrutiny

Care providers applying for a sponsor licence for the first time should note that new regulations governing foreign nurses’ permission to work in the UK have been introduced recently.

They are far stricter than the previous rules, but this should mean new Tier 2 sponsors are in a better starting position to meet their duties, as they are not suffering the same inherited issues as current sponsors.

Those providers that already hold a sponsor licence, however, continue to face significant risk of non-compliance due to the prevalence of legacy issues across the sector.

So, while care providers can expect a visit from the Home Office every four years, the increase in the number of unannounced audits made by UKVI should put all Tier 2 sponsors on alert.

The best advice is to take corrective action now to get your business and records in order before the Home Office inevitably comes calling.

Anne Morris is Managing Director of DavidsonMorris. Email: anne.morris@davidsonmorris.co.uk Twitter: @DavidsonMorris

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