Background
Prestwick employed 219 Skilled Workers under the Health and Care visa scheme. Upon a compliance audit carried out by the Home Office in October 2022, Prestwick were found to be non-compliant with a series of immigration and employment rules, these included:
- pay being different to the salary stated on the Certificate of Sponsorship (“CoS”)
- workers not performing roles that had been outlined in their CoS
- non-compliance with sick pay and minimum wage regulations
- recouping payments of £3,199 from each sponsored worker (which was the combined cost of the Immigration Skills Charge and CoS fee for each worker)
- ineffective monitoring of employees’ details e.g. visa expiry dates and
- poor record keeping.
Whilst some of these breaches seem trivial, others are significant enough to warrant a revocation of a sponsor licence on their own, like workers performing roles which are not outlined in their CoS (not a genuine vacancy) and the pay being different from that stated on the CoS. Another crucial ‘no’ for sponsors is charging sponsored employees for the cost of the Immigration Skills Charge.
The Home Office believes that sponsorship is a privilege for employers and not a right. Sponsors have a duty to ensure that those benefitting from employing foreign workers ensure that the immigration system is not abused. Following on from the audit carried out by the Home Office, they revoked the Care Homes licence in February 2023.
The Care Home challenged the Home Office’s decision to revoke their sponsorship license.
Outcome
The High Court was not swayed by the arguments put forward by the Care Home to think about the wider implications revoking their licence (and their ability to employ much needed carers) would have on society or the care sector and solely focussed on the responsibilities and powers of the Home Office. Whilst the outcome to many may seem harsh, it serves as a powerful reminder that despite the downturn in Home Office compliance visits since the COVID-19 pandemic, sponsor licence compliance is still taken very seriously and courts will uphold the Home Office’s ability to take a licence away if it does not believe the sponsor capable of complying with its duties and wider immigration and employment law.
This case serves as a reminder to all sponsors to make sure they are fully compliant with their record keeping, reporting and wider sponsor duties. The Home Office can conduct a compliance audit at any time, with or without warning and sponsors are encouraged to conduct their own compliance audits to make sure they are in good shape for the real thing.
Trouble in Tesco
A further reminder of the importance of compliance comes with the application of an issue Tesco had with its employees in 2012.
The UK Border Agency back in August 2012 arrested 20 foreign student workers for alleged breaches of visa conditions following overnight raids at a Tesco office in Croydon. After investigating several employees, the UK Border Agency fined Tesco for 23 of its workers for illegal working. This was because as part of their student visas, those employees were only allowed to work 20 hours a week during term time, but some of those employees were working up to 70 hours per week which was in direct breach of their specific visa conditions. As the employer, Tesco should have conducted right to work checks which would have flagged these work restrictions and processes should have been put in place by Tesco to make sure students did not breach those conditions.
Those in breach were arrested and deported, and Tesco were fined £115,000. This represented £5,000 per worker, which is a reasonable fine by current Home Office penalty standards. However, as of 2024, an initial fine for illegal working is £45,000 per worker. This means that the total fine today could have been £1,035,000!
Update on Increased Fines for Illegal Working
Employers must be aware that the UK government have announced that from the start of 2024, the starting fine for a first breach will rise from £15,000 to £45,000 and the overall maximum illegal working civil penalty will be increased from £20,000 to £60,000 for repeat offences. Other discounts are possible, such as discounts of £5,000 each if the employer has self-reported the breach, if the employer actively co-operates with the Home Office and if it can show it ordinarily has effective right to work policies in place. The amounts are applied per illegal worker identified, and the criminal implications have remained unchanged – employers can still face a maximum five-year prison sentence and an unlimited fine for knowingly employing individuals who do not have the right to work.
A civil penalty can be avoided if an employer establishes a statutory excuse by carrying out a right to work check in line with the Home Office’s guidance and ensures that checks are properly recorded and retained for the necessary length of time. There is also a requirement to conduct follow-up checks for workers whose immigration permission is time limited.
Employers are advised to review their current recruitment practices and right to work checking processes to minimise the risk of incurring penalties. They should also ensure those responsible for conducting right to work checks are trained to do so and fully understand the requirements.
How we can help
If you are at all worried that your business may not be compliant with immigration law, the consequences could be severe. We are performing mock compliance audits for sponsors. More details to follow.
We are also conducting right to work audits for all clients. More details to follow.
For all other immigration queries, contact our dedicated and experienced immigration team here.
