Employers may be surprised to learn that certain organisational changes can leave you open to breaches in immigration duties.Oversights and poor management of immigration issues can result in problems with retaining your sponsor licence and your ability to hire from overseas, and you may be subject to a civil penalty for illegal employment.
In the current climate, employers have to be more vigilant than ever to avoid allegations of illegal employment.The government continues in its mission to reduce net migration by implementing policy to discourage organisations from hiring migrant workers (the most recent taking effect in April 2017). And the Home Office is taking a highly proactive stance against employers for breaches of immigration duties.
We highlight a number of organisational developments to be aware of as part of your immigration risk management programme.
1. Mergers, acquisitions & restructures
Do you understand the affects of a restructure on your sponsor licence and sponsored workers? What about any new foreign workers you will acquire under a transfer?
Organisations typically focus on issues such as tax, finance and payroll as part of corporate restructure programmes. All too often the immigration aspect is overlooked, at least until problems arise, for example during a subsequent licence renewal process. Whether it is an acquisition, demerger or disposal, whether you are downsizing, restructuring, growing or transferring under TUPE – any significant change in your organisation’s make up and structure will affect your sponsor licence.
Each of these changes trigger a requirement on the organisation’s part to inform UKVI. To maintain the validity of your sponsor licence, and in doing so the ability to hire talent from overseas, you must notify UKVI of the specific changes via the appropriate channels and within set timeframes.
The specific requirements on you are dictated by the nature of the change in question. Crucially however, sponsor licences are not transferrable between organisations. Which means in certain circumstances, you may have to reapply for your sponsor licence as part of the restructure project.
Failure to identify and address potential immigration issues at an early juncture will result in cost, hassle and resource to rectify. There is a lot at stake. Foreign workers may find their certificates of sponsorship are no longer valid, impacting their legal status and permission to work in the UK.The takeaway here is that immigration compliance must be on the agenda at the outset of any change or restructure at an organisational level. To avoid downtime or any impact on your operations and personnel, do this in advance of the change. Good planning and advice can ensure all aspects of the change have been considered, the Home Office duly notified and disruption to your operations avoided.
2. Reporting changes in circumstances
Employers and employees alike are required to inform UKVI of specific changes in circumstances relating to the sponsor licence or certificate of sponsorship. All migrants on a Tier 2 visa have a responsibility to report any changes to their personal details or circumstances to their employer and UKVI as soon as possible.
Failure to report Tier 2 changes of circumstances can result in:
- The sponsors’ licence being revoked – you will no longer be permitted to employ migrant workers.
- Being downgraded to a B rating – you can longer sponsor new migrants and you will be issued with an action plan.
- Civil penalties – a fine may be issued for failure to comply with the sponsor licence and migrant reporting duties.
A sponsor would be responsible for reporting the following changes to migrants’ circumstances within 10 working days:
- Change in jobs to a different job within the same SOC code;
- Change in core duties, but the job is still within the same SOC code and being paid at the appropriate salary;
- Increase in salary, this does not include annual salary increases due to promotions or bonuses;
- A change of salary from that stated on the CoS due to maternity, paternity or adoption leave, or a period of long-term sick leave lasting one month or longer;
- Change of work address to the one stated on the CoS;
- A move under TUPE due to a merger, takeover, de-merger or any other circumstance in which TUPE is warranted;
- A migrant does not show up for their first day of work, with the reason for the delay or non-attendance;
- Migrants’ employment ends earlier than the date stipulated on the CoS due to termination, resignation or if the project ends earlier. Details of the name and address of the new employer must be included, if known; and
- Migrant is absent from work for ten consecutive working days without consent, this must be reported within ten working days of the 10th day absent from work.
Depending on the nature of the change, you may be required to submit evidence in support of the notified change. UKVI has the right to carry out an immigration audit at sponsor’s premises to ensure that all requirements are being adhered to and the system is not being abused. As such, employers are advised to have systems in place to carry out regular checks and ensure you hold the correct and up to date details on file of every worker. Remember also that that specific risk areas such as List B employees require a more sophisticated and proactive approach to compliance.
In addition to stringent employment and discrimination laws governing recruitment practices, organisations must also consider their duties in relation to hiring migrant workers. If the role your organisation is filling is not listed under the Shortage Occupation List, you have to follow the Resident Labour Market Test to ensure there are no suitable workers already living permanently in the UK, before you look to hire from overseas. The test is designed to ensure the role is a genuine vacancy. You are queried to place two advertisements for 28 days, either continuously or in 2 stages, in two places listed in the guidance issued by UKVI. We find employers are often caught out at the end of the Resident Labour Market test as they have missed out mandatory information from the advertisement, as prescribed by UKVI.
The following are essential points which must be included on all relevant advertisements:
- Job title
- Location of the job
- Indication of salary package
- Main duties and responsibilities
- Date of posting
- Applications closing date
Ultimately, you have to show you were unable to find a suitable worker from the domestic market within the statutory 28 days advertising period.
Immigration compliance may at first glance appear to be an area of limited concern. However, given organisations’ increasing reliance on mobile workforce and overseas talent – particularly as the UK suffers shortages in key skills – immigration compliance risks are permeating business operations.
HR and mobility teams must be aware of the key triggers that can give rise to a required action such as notifying UKVI of the change.