What is a Home Office sponsor action plan?
If you successfully apply for a sponsorship licence, that licence will be valid for 4 years. As a Home Office approved employer, your business will be placed on the national register of sponsors, and you’ll be given a licence rating. You’ll automatically get an A-rated licence if your application is approved. An A-rated licence will allow you to start assigning Certificates of Sponsorship (CoS) to prospective migrant workers to come to work for you in the UK.
An A-rated licence essentially means that you’ve been able to demonstrate to the Home Office that you have the necessary HR systems in place to monitor sponsored employees, together with trustworthy people capable of carrying out your sponsorship duties. However, where the Home Office has reason to believe that you’re failing to meet your responsibilities as a sponsor, typically following a compliance visit, this could potentially result in your licence being downgraded from an “A” rating to a “B” rating, and a sponsor action plan being put in place.
A sponsor action plan is a plan designed to address relatively minor breaches of duty as a licensed sponsor, in circumstances where the sponsor is willing and able to correct any issues. The plan will set out the steps that need to be taken to help reinstate “A” licence rating.
If your licence rating is downgraded, and a sponsor action plan imposed, although you’ll still be able to issue CoS to workers you already employ who want to extend their permission to stay in the UK, you’ll not be able to issue new certificates until you’ve made improvements and upgraded back to an A-rating. Any overseas recruitment will therefore be put on hold.
At the end of the action plan, if you’ve satisfactorily completed all the steps, you’ll be upgraded to an A-rating. However, if you still need to make improvements, you may be given another B-rating and will be required by the Home Office to follow a new sponsor action plan. If you fail to complete, or to satisfactorily complete, any second action plan, you’ll lose your licence. In some cases, you may not even be given a second chance to rectify any initial areas of concern.
You can also only be B-rated twice during the validity period of your 4-year licence.
Other penalties for non-compliance
If you fail to comply with your sponsorship duties, instead of downgrading your licence rating and putting in place a sponsor action plan, there are various other sanctions that may be imposed by the Home Office, depending on the nature and seriousness of any breach. For example, where there’s been a significant or systematic failing, and you pose a serious threat to immigration control, or you no longer meet the eligibility or suitability requirements for holding a sponsorship licence, you’re at risk of having your licence suspended or revoked.
The Home Office will suspend your sponsorship licence where it needs to investigate the matter further before making any decision. This could then result in the revocation of your licence. In some cases, however, where a breach is especially serious and indefensible, the Home Office has the power to revoke your licence altogether without prior suspension.
You’ll be at risk of losing your licence if you’ve been found to be employing illegal workers. If you’ve failed to carry out prescribed right to work checks to establish a statutory excuse against illegal working, you’ll also be facing a possible civil penalty of up to £20,000 per worker, and even criminal prosecution. If you’re found guilty of employing a migrant who you knew, or had reasonable cause to believe, didn’t have permission to work in the UK, you could be given a custodial sentence of up to 5 years and be ordered to pay an unlimited fine.
Even in the context of relatively minor breaches, your licence will be revoked if you fail to comply with any Home Office sponsor action plan designed to reinstate your licence rating. If your sponsorship licence is revoked, this can have a serious impact on your business, especially if you’re heavily reliant on migrant workers. Having revoked your licence, the Home Office will also curtail the leave of any migrant workers currently employed by you.
What costs and timescales are involved in a sponsor action plan?
If your licence rating is downgraded, you’ll have to pay for a sponsor action plan at a cost of £1,476 to upgrade your licence to an A-rating. You must pay this fee within 10 working days of the date of being informed by the Home Office of its’ decision to downgrade. If you fail to make payment in full, you’ll lose your licence because of this. If you’re given another B-rating after your first sponsor action plan, you’ll have to follow a new action plan and pay the fee again.
A Home Office sponsor action plan is time-limited, where the maximum time a business can be the subject of an action plan is 3 months. As a downgraded sponsor, you’ll therefore need to respond to the recommendations contained within the plan, both quickly and effectively.
If you fail to comply with all necessary steps set out within your sponsor action plan, and your licence is revoked as a result, you cannot appeal, but you can reapply. However, you’ll have to wait at least 12 months before being able to do so, without any guarantee that your new application will be successful. This will be treated in the same way as any other application, requiring you to pay the relevant fee, submit the necessary documentation in support, and be able to satisfy the Home Office that you’re capable of carrying out your sponsorship duties.
Sponsorship duties
The grant of a sponsorship licence will allow you, as a Home Office approved sponsor, to recruit someone from outside the UK who doesn’t otherwise have immigration status to undertake work, or the work in question — provided they meet the requirements for a visa.
However, having been granted Home Office approval, significant trust is placed in you as a licence holder to act in accordance with the sponsorship requirements and to prevent abuse of the UK’s immigration system. As a licensed sponsor, you’re therefore agreeing to meet the various duties associated with sponsoring a migrant worker, including:
Reporting any change in circumstances of a sponsored worker, such as regular absences or resignation, within prescribed timescales. You must also report certain changes to your business, such as a change in details, like your address or allocated roles for those responsible for managing your licence under the Sponsor Management System (SMS). The SMS is the Home Office online portal that allows UK sponsors to manage their migrant workforce, and related sponsor activities, such as issuing CoS, and reporting any relevant changes to your own or a migrants’ circumstances;
Monitoring and recording employee attendance to ensure that all sponsored workers are complying with the conditions of their work visa. If, for example, you’re privy to information that suggests or shows that a migrant worker is breaching the conditions of their grant of leave, this must be reported to the Home Office through the SMS;
Complying with the law, not least only assigning CoS to workers when the job is suitable for sponsorship, checking that migrant workers have the necessary skills, qualifications or professional accreditations to do their jobs, and conducting regular prescribed right to work checks on all prospective employees — as well as repeat checks for any employees with time-limited permission to work in the UK. In this way, you’ll not only help to prevent illegal working, but to avoid any civil or criminal penalty for employing illegal workers;
Maintaining accurate and up-to-date records for all sponsored migrant workers, comprising, for example, their UK address and contact details. You must also retain copies of any online or manual right to work checks, to prove the entitlement of your migrant employees to work in the UK and undertake the work in question;
Cooperating with the Home Office, whenever required, such as responding to any requests for further information or documentation, and providing access during any compliance visits. Naturally, the duty to co-operate includes acting honestly in any dealings with the Home Office, such as not making false or misleading statements.
Who is responsible for meeting these sponsorship duties?
As a licensed sponsor, you’re required to allocate certain responsibilities to key personnel within your business, some or all of whom will have access to the SMS once your sponsorship licence has been granted by the Home Office.
The authorising officer must be a senior and competent person within your business, as they will be responsible for the activities of all SMS users, and ensuring that you meet your responsibilities as a licensed sponsor. The key contact will be your main point of contact with the Home Office, whilst the Level 1 user is the person responsible for the day-to-day management of your sponsorship licence via the SMS. These roles can be filled by either the same person or different people. You can also appoint optional Level 2 users, with more restricted permissions than a Level 1 user, once your licence has been granted.
That said, as a licensed sponsor, you retain overall responsibility for ensuring compliance with the rules. As such, if either the authorising officer, or any system user, fails in their duties, you’ll still be strictly accountable to the Home Office. This means that you should always exercise caution, and carry out thorough background checks, to ensure that the individuals appointed to act as your key personnel are honest, dependable and reliable.
How can a Home Office sponsor action plan be avoided?
Avoiding the imposition of a costly and time-consuming Home Office sponsor action plan, or any other possible sanctions that could be imposed, including suspension and revocation, is all about understanding and complying with your sponsorship duties at all times.
Being a UK sponsor is a significant responsibility, where the rules can be complex and subject to constant change, often resulting in confusion or incompetency, and exposing employers to serious compliance risks. If there is ever any uncertainty, to avoid action being taken against you, you should always seek expert advice from an immigration specialist. In this way, you can have the peace of mind that you’re not falling foul of the law.
An experienced immigration specialist can advise you on all aspects of your sponsorship duties. Your adviser can also support and guide you through any Home Office investigation, looking for ways to mitigate potential liability for any failures on your part, and find ways to help you put in place adequate HR systems that will enable you to meet your responsibilities.
Need assistance?
DavidsonMorris’ business immigration specialists are highly experienced in supporting sponsor licence holders facing Home Office enforcement action. We have a dedicated team of sponsor licence lawyers who work with employers to resolve compliance issues, deal with the Home Office and advise on how to prevent future compliance breaches through auditing and training. Contact us to minimise the impact and disruption to your organisation of Home Office scrutiny.
