Annabel Mace of Hammonds LLP concludes a series of articles providing an update on employing foreign workers with a checklist for employers on surviving a UK Border Agency (UKBA) audit. Employers that sponsor foreign workers under the points-based system may be subject to an audit by the UKBA, to check compliance in relation to sponsorship obligations and the avoidance of illegal working.
Background
The UKBA may carry out “visiting officer checks” (ie audits) before and after it makes a decision on a sponsorship application. It may make its checks by telephone, in person or by letter and UKBA visiting officers may, but will not always, contact the sponsor in advance to arrange a mutually convenient time. All sponsors are under a duty to cooperate with UKBA checks.
The main purpose of an audit is to ensure that:
- the information given on the sponsorship application is accurate and complete;
- the sponsor is able to offer employment;
- the organisation is genuine and operating lawfully in the UK;
- there are no reasons to believe that the sponsor presents a threat to immigration control; and
- the organisation is committed to complying, or is complying, with its sponsorship duties.
Initially, the visiting officer will gather material to support the information provided on the sponsor’s online application. He or she may also wish to speak to migrant workers and managers involved in their recruitment, particularly those with full access to the UKBA sponsor management system with responsibility for updating and reporting sponsor migrant records on behalf of the sponsor (known as “level 1 users”). The visiting officer will also ask to see the personnel files of the organisation’s sponsored migrant workers if it has any (migrant workers and/or personnel files) and, in some cases, personnel files of non-sponsored migrant workers to check for evidence of their entitlement to work in the UK. He or she will assess the organisation’s ability to comply with its record-keeping and reporting duties, for example by reviewing its HR systems for monitoring visa expiry dates and workplace absences.
If, during an audit, the sponsor is found to be employing illegal workers, failing to comply with its sponsor duties or being in any way dishonest in its dealings with the UKBA, it may face a number of penalties including:
- a civil penalty of up to £10,000 per illegal worker where employment began on or after 29 February 2008;
- criminal prosecution followed by an unlimited fine and/or a prison sentence of up to two years for knowingly employing an illegal migrant worker;
- being downgraded on the sponsorship register from an A-rating to a B-rating; and/or
- withdrawal of its sponsor licence and removal from the sponsorship register with the result that it is no longer able to bring sponsored migrant workers to the UK or continue to employ existing sponsored migrants.
Therefore, it is important that sponsors take their sponsorship duties seriously and prepare thoroughly to be able to respond to an UKBA audit.
Key preparation points
1. Carry out an audit of all personnel files to check for evidence of entitlement to work in the UK.
Employers that employ workers illegally may be liable for a civil and/or criminal penalty. To avoid liability for employing illegal workers, employers need to establish a “statutory excuse” by checking and copying immigration documents. The checks for migrant workers with limited leave to remain in the UK and whose employment began on or after 29 February 2008 must be repeated on at least a 12-monthly basis. Appendix D of the policy guidance (for sponsors) sets out the documents that sponsors/employers must keep and for how long. (See Employing foreign workers update: avoiding illegal working (subscription required) in this series for more details.)
If it knows that an UKBA audit is imminent, the employer should consider prioritising the personnel files of known migrant workers. However, the employer’s audit should, ultimately, cover all employees to avoid potential allegations of race discrimination.
2. Ensure awareness within the organisation of duties and responsibilities in relation to the prevention of illegal working and sponsorship.
To reduce the risk of liability for employing foreign workers illegally or for breaching sponsorship requirements, employers should ensure that all employees are aware of their own duties and responsibilities. Managers and employees who are involved in recruitment should be trained in their obligations and employers should instil awareness in all staff so that, for example, employees know to report concerns about potential breaches within the organisation to management. See Employing foreign workers update: avoiding illegal working (subscription required) for further details of employers’ duties in relation to preventing illegal working. Details of the duties that apply to all sponsors and those that relate to sponsors with licences for particular tiers of the points-based system are set out in the guidance on tiers 2, 4 and 5.
3. Prepare a spreadsheet detailing key information about migrant workers.
A spreadsheet showing key information about migrant workers will provide evidence to the UKBA that the employer is proactively managing its migrant workforce. The spreadsheet should include each migrant’s name, date of employment, job title, current visa type, visa expiry date and whether or not the migrant is subject to repeat checks, and if he or she is, when the most recent check was carried out and the next check is due.
4. Assemble a key sponsor documentation file.
A key sponsor documentation file is a central file compiled by the employer containing copies of all documentation relating to its role and responsibilities as an employer and sponsor of migrant workers. As well as facilitating an UKBA audit by having key documentation in one place, it will also help to demonstrate to the UKBA that the sponsor understands the importance and profile of the prevention of illegal working and sponsor obligations. The file should include copies of all documents submitted as part of the sponsor licence application together with associated UKBA correspondence, as well as a copy of Appendix D of the UKBA policy guidance on record-keeping duties (see above), the relevant current sponsor guidance, prevention of illegal working guidance and any other relevant UKBA information.
5. Set up a method of flagging up visa expiry dates.
Reminders to flag up visa expiry dates could be set up in an email calendar or through an appropriate HR system. Employers need to ensure that migrant workers whom they employ have the necessary documentation that entitles them to work in the UK. Therefore, the system should identify migrant workers whose visas are due to expire in, for example, the next three months so that the sponsor can make arrangements in good time to extend the existing visas or, where necessary, obtain new ones. The system should also identify those migrant workers for whom repeat documentation checks are required.
6. Ensure that systems are in place to monitor absences including sickness, holiday and unauthorised absences.
As part of their sponsorship duties, all sponsors are required to report to the UKBA unauthorised absence of more than 10 working days. Sponsors must also report if a migrant worker fails to turn up for work on the first day. Employers should ensure that the relevant information is readily accessible so that reporting can be carried out within the time frames specified by the UKBA. The sponsor guidance contains details of sponsor reporting requirements.
7. Be aware of how to comply with the resident labour market test.
Under tier 2 of the points-based system, if the job to be filled is not a shortage occupation or an intra-company transfer, the resident labour market test must be satisfied. UKBA codes of practice set out minimum appropriate salary rates, acceptable advertising media and methods for meeting the test where this is applicable. The codes can be accessed on the Codes of practice for sponsored skilled workers page of the UKBA website. (See also Employing foreign workers update: the points-based system (subscription required) in this series for more details.) Employers should ensure that they are fully aware of the requirements of the relevant codes of practice and are able to provide details of their recruitment practices.
8. Ensure that employees who will be dealing with UKBA visiting staff are aware of key information about the employer.
Staff who will be dealing with the UKBA officers should be aware of key organisation information, for example the date of establishment, changes in name and location and the acquisition of employees under TUPE. Being able to provide this information will help to establish and maintain the sponsor’s credibility with the UKBA.
9. Ensure that documentation is to hand that evidences that sponsored migrants are aware of their obligations, for example to report changes in address and contact details or immigration status.
As part of their record-keeping and reporting duties, all sponsors are required to ensure that each sponsored migrant’s contact details are kept up to date and that the UKBA is notified of changes in a sponsored worker’s sponsorship status (for example, where the migrant worker’s employment has terminated). Therefore, sponsors should ensure that sponsored migrants know that they must keep them informed about changes. Examples of documentation that could be used by sponsors to ensure that migrant workers are aware of their obligation to provide this information could include internal memoranda, staff handbooks and contracts of employment.
10. Be prepared to discuss with the UKBA issues such as the average working week, levels of pay, benefits and allowances and how skills and qualifications are verified.
UKBA visiting officers will expect sponsors to be able to demonstrate how they have complied with the requirements of the relevant sponsorship tiers for their sponsored migrant workers.
11. Be prepared to discuss certificates of sponsorship usage.
Sponsors with an unused allocation of certificates of sponsorship may be asked to justify their original allocation request and subsequent usage.
12. Ensure that the person responsible for complying with sponsor duties and reporting obligations will be available during the audit.
Sponsors are under a duty to cooperate with UKBA officers carrying out checks. If the person who is responsible for complying with sponsor duties is available during the audit to answer questions, this will facilitate cooperation. If the relevant person will not be available, the sponsor should ensure that someone else is fully aware of all the relevant sponsor information and responsibilities as the UKBA officer may not agree to return at a later date. The best approach may be to have at least two informed level 1 users within the organisation at any time, if this is practicable.
Annabel Mace is senior associate solicitor and Head of Business Immigration at Hammonds LLP.
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