In the last 12 months we've seen:
- A care home group lose its sponsor licence because of an innocent error by a member of staff. The visa application itself was refused but, even though the mistake did not lead to a visa being issued, it was sufficient for the Home Office to revoke a licence.
- The Home Office incorrectly assessing that a worker had been underpaid and revoking the company's licence. We were able to successfully argue for the licence to be reinstated but, while this was ongoing, it was a very difficult time for the business and the affected staff.
- Multiple companies face stressful requests for additional information from the Home Office because HMRC data did not match what the Home Office expected a worker to be paid. In many cases this was due to a period of unpaid leave or maternity leave not being reported to the Home Office.
- Routine requests for certificates of sponsorship being delayed as the Home Office seeks additional information to ensure roles are genuine and required in the business.
Across these compliance cases, we've noticed common themes, and the 4 highest risk areas are:
1. Variable shift patterns/underpayments
Many workers in the sector have variable shift patterns, and it is not uncommon for their hours to vary from week to week. The Home Office guidance allows for an average figure to be entered on the Certificate of Sponsorship but, in practice, this presents a challenge as it means that salaries can vary from month to month creating the impression of underpayments.
The new rules for how the Home Office will calculate salary compliance will increase the risk in this area, and it is important that businesses ensure that they update the Sponsor Management System, so the Home Office has the correct shift pattern information.
2. Right to work checks
An area of focus for the Home Office is ensuring that businesses are taking appropriate steps to prevent illegal working. This means following the Home Office guidance on how to carry out right to work checks, and even in cases where no illegal working has been found, we have seen the Home Office take enforcement action because the checking process is flawed.
The reason for this is that holding a sponsor licence is a highly trusted status, so licence holders are often expected to go beyond the statutory minimum and show best practice to minimise the risk of future breaches.
3. Records not being updated/Changes in role
When a member of staff is performing well, they will commonly be given additional duties or responsibilities, but this is a significant risk in immigration terms. When a person's role changes, even slightly, the business must consider if their job category or SOC code will change. A common example of this is the move from Care Worker to Senior Care Worker.
If the SOC code will change, a new Certificate of Sponsorship and visa application are needed BEFORE the person takes up their role. We have seen cases of licence revocations because someone has been performing the duties of a Senior Care Worker but has only had a visa as a Care Worker, so promotions and even temporary adjustments to roles need careful consideration before they are put in place.
4. Breaches by non-sponsored workers
The care sector is heavily reliant on students, who can work up to 20 hours per week during term time, and workers sponsored by another business who want to carry out "supplementary work" (which is also restricted to 20 hours per week). However, even working a single hour more than this is illegal work and can lead to a fine and sponsor licence enforcement action.
When we audit care businesses, this is an area we focus on as it is one where an accidental breach can easily occur. For example, an employee calls in sick at the last minute and a business needs someone to fill the shift to ensure adequate care is available. In these circumstances, a manager can easily forget to check someone's previous hours and give the shift to someone who cannot legally fill it.
Where this has happened, we have had some success self-reporting the issue to the Home Office and pointing to revised processes but, if the Home Office identifies the issue themselves, which the increased use of HMRC data will allow, they are less likely to be lenient.
What should businesses be doing?
For any sponsor licence holder, staying on top of compliance is vital but, with the care sector under increasing scrutiny, it is even more important for care businesses.
A business should not wait to identify an issue and should carry out their own audits regularly. We can assist with this, and our team regularly audits businesses and identifies areas where breaches could occur in the future. This type of proactive compliance is also beneficial if you do identify an issue as it can form the basis of submissions to the Home Office to help you keep your licence.
If you would like to discuss how our team can assist with sponsor compliance, please get in touch.
