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Immigration enforcement
Compliance is key

Everyday working practices are opening care providers up to Home Office penalties for illegal working. Immigration solicitor, Anne Morris from DavidsonMorris explores common issues and offers solutions for addressing them.

The health and social care sector continues to attract the attention of Home Office immigration enforcement. This is likely due to the high numbers of international nurses employed under the Tier 2 visa. All providers are legally required to comply in full with UK immigration rules and the compliance duties they place on employers. However, we are still seeing penalties being issued by the Home Office.

Under the right to work regime, employers in every sector must carry out document checks on all employees to verify their lawful working status. Providers who hold a valid points-based system (PBS) sponsorship licence to hire skilled international workers will need to meet further ongoing compliance requirements. Where the Home Office alleges a breach of these duties, employers face tough sanctions. Failure to perform right to work checks correctly can result in a fine of up to £20,000 per illegal worker. Sponsor licence breaches can result in a licence downgrade, suspension or revocation, impacting the organisation’s ability to employ PBS workers lawfully.

A number of management and operational practices prevalent across the sector are falling foul of the immigration rules. Identifying and addressing these issues proactively can help to avoid Home Office scrutiny, investigations and any resulting penalties.

Consistency and compliance

Without exception, every care provider in the UK must meet the same high standards for immigration compliance. This applies to single providers as well as all services within any group.

With larger care providers, central management and HR are often fully aware of immigration compliance and usually processes have been developed to ensure compliance. However, the extent to which this compliance goes beyond head office can be limited. It’s not uncommon to see vast differences in working practices within one organisation. For example, while some care homes within a large group might be organised and adhering to policy, others under the same group may be operating below the required standard.

Discretion is also a threat to compliance. If managers or those responsible for hiring at a local level are exercising discretion in respect of immigration compliance, or are not performing right to work checks correctly or at all, the business as a whole will be put at risk of non-compliance.

Providers operating multiple sites should take proactive measures to ensure the effective implementation of systems to consistent and adequate standards. Training helps to ensure all personnel involved in recruiting have the knowledge and skills to comply. It is also wise to carry out internal spot-checks to be confident that the company’s documents are in order.

Updating PBS licence records

For licensed sponsors, updating records on the Sponsor Management System (SMS) is a mandatory requirement. The Home Office expects SMS information to be a snapshot of the business at any one time, so it has to be accurate and current.

This includes a requirement to notify the Home Office, via the SMS, of changes to any circumstances. Beyond updating basic contact information for the business and sponsored employees, you will also be required to input certain organisational changes into the SMS, such as opening a new home or a company merger. The reality is that during such high-stakes projects, focus is generally directed in other areas, and immigration compliance is either left until last or forgotten about completely. But failure to notify within the prescribed timeframe is a breach of your duties and leaves you open to Home Office penalties.

Remember also that for every new PBS worker, the information on the SMS will need to be updated. The Home Office is becoming increasingly sophisticated in sourcing intelligence relating to individual workers. It is able to cross-reference its records with those of HMRC and inconsistencies are leading to investigations.

This intelligence is also highlighting an issue of care providers failing to pay the required salary level to Tier 2 staff. We have seen examples of employers routinely deducting expenses incurred (in the recruitment process and securing the Tier 2 visa) from employees’ salaries. This is in breach of not just the immigration rules, but also employment law legislation.

Working hours and location

The reality in many care homes is that employees are required to work in different homes, as and when required. This presents a problem with Tier 2 employees, where the licence prohibits working in locations other than those recorded on the SMS.

The same applies to working hours. Shifts can be long and they often run on as the role demands. But PBS workers have to stay within the parameters of what is permissible under the licence to avoid compliance issues.

Should the Home Office arrive for an unannounced inspection and find any PBS employees present and working outside of their permission, this would be considered grounds for enforcement action. Penalties could include a downgraded licence to ‘B’ rating – prohibiting the company from sponsoring new migrants – a fine for failure to comply with the sponsor licence, or potentially suspension or revocation of the licence.

Tier 2 employees are permitted to work across multiple sites, provided this information is detailed in the SMS. This requires forward-thinking on the provider’s part at the point of the visa application to ensure they cater for future needs. ‘Changes of circumstances’ such as employee hours and work address can be updated on the SMS, but this has to be within 10 working days of taking effect. Any changes must be within the code of practice as per the original Tier 2 visa.

The Immigration Rules in this area are clearly at odds with the flexibility relied on by providers operating multiple sites. The Home Office demands full transparency and disclosure from employers in respect of their Tier 2 workers, which they justify on the basis of preventing illegal working and erosion in employer compliance.

Retaining personnel records

The Home Office has the right to request employee documentation for up to two years after any employee has left your employment. Therefore, providers must ensure previous employees’ documents are kept for at least two years after they have left the business.

We are seeing a lot of instances where the records have been deleted or destroyed before this date. This is not accepted practice and would be regarded as a breach of right to work duties.

Expired sponsor licence

If your company’s sponsorship licence expires, your Tier 2 employees will no longer be lawfully employed.

Sponsor licences are allocated for a period of four years and the licence will automatically expire if you do not successfully apply to renew your licence in advance of the expiry date.

The expectation is on businesses to have effective processes in place to renew on time. It’s more common than you might think for a sponsor licence to expire without the employer’s knowledge. For example, out of date contact details on the SMS could mean the wrong person receives the expiry reminders.

Licence expiries usually come to the attention of the Home Office when a PBS employee attempts – quite innocently – to rely on their immigration status to apply for indefinite leave to remain for example, or when trying to come back into the UK after time overseas. Home Office records are checked and the expired licence is identified.

Whatever the reason, where a sponsor licence has expired, a number of immigration and wider business-related issues will inevitably follow. As soon as you become aware of the expired licence, you will need to take swift action to try to reinstate your licence and avoid issues with your Tier 2 employees’ permission to remain in the UK.

It is good practice for all personnel involved in the licence management to diarise a date around six months before the licence is due to expire. At that point, you can start to compile your renewal application.

Allegations of non-compliance

If you are facing Home Office enforcement action, you should first assess the allegations made against you. If you can prove that the Home Office has got it wrong, you may be able to challenge to have the fine either reduced or cancelled. The Home Office is not blemish-free; it too can be guilty of procedural errors and failure to meet its own standards.

For example, the Home Office’s own records may not be up-to-date. We have seen this cause specific issues where care providers have been fined for breaches relating to foreign nurses not holding the requisite pre-registration qualifications. Penalties are being challenged where evidence can be shown that the employee has in fact passed the relevant examinations.

If you believe you have grounds to challenge the Home Office’s decision, on the basis of factual error for example, you will need to respond to the Home Office within the timeframe specified in the letter of notification, providing comprehensive reasoning and evidence to support your appeal.

The future of immigration compliance

Under the current system, the government relies heavily on employers in respect of immigration enforcement. Any changes to the UK immigration rules that result from Brexit will continue in this way, with employer right to work checks acting as the frontline in verifying the immigration status of anyone seeking to work in the UK.

Whatever shape the UK immigration rules take post-Brexit, immigration compliance will remain an unavoidable business concern for employers. In preparation, now is a good time for providers to assess their immigration compliance processes to ensure they remain fit for purpose and are compliant.

Anne Morris is Managing Director of DavidsonMorris. Email: Twitter: @DavidsonMorris

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