As many employers will be aware, it is becoming increasingly difficult to employ staff on the basis of Tier 2 Sponsorship. In particular, the quota set for the Restricted Certificates of Sponsorship have been consistently exceeded over the last few months. Recent cases have given a clear indication that the Courts are fully prepared to revoke Sponsor Licences where there has been a breach of the relevant obligations. The “direction of travel” is to firmly remind sponsors that this is a “privilege and not a right”.
This acts as a salutary reminder that employers who are Tier 2 Licence holders have a significant degree of responsibility in relation to keeping records and reporting on sponsored migrant employees.
In the recent case of County Court Care Limited and Others v Secretary of State for the Home Department  EWHC 2054 (Admin) (17 July 2015), the High Court confirmed that a Sponsor Licence could be revoked in circumstances where the sponsor had failed to update the status of its workers and failed to provide accurate information regarding the location where they were working.
In this case, the sponsor ran 15 care homes, situated in Lincolnshire, Cambridgeshire, Sheffield, North Somerset and London. It had held a Tier 2 Sponsor Licence since 2009 and sponsored 94 employees under Tier 2 (of its workforce of 700 employees). They were subject to an inspection by the immigration authorities and, as a result of the inspection, their Licence was suspended and subsequently revoked. The reasons for this were as follows:
(a) The sponsor had failed to update UK Visas and Immigration when sponsored workers had left their employment or engagement. When challenged, the sponsor argued that its failure to report was system error and that new procedures were being put in place that would prevent this from happening. UKVI were not satisfied with this information. The Court agreed and concluded that it was a serious breach of its duties as a sponsor which would “severely hinder UKVI in its duty to maintain effective immigration control”.
(b) It was also alleged that the sponsor had failed to report a change in workplace location for their sponsored workers within the required timescales. In particular, the Certificates of Sponsorship that had been issued to their sponsored workers stated that the employees worked at the Head Office, when in fact, they worked at several different locations. The employer had tried to explain this by saying that the sponsored workers moved around different locations on a daily basis and that they had addressed this issue by including reference to all of the addresses at which the sponsored workers might work on their Certificates of Sponsorship. UKVI did not agree. They concluded that only one Certificate of Sponsorship listed more than one of the employer’s branches as a regular additional work location. They therefore found that the response given by the employer was factually incorrect. In addition, UKVI weren’t given any evidence or explanation about why the sponsored workers would have to move work location on such a frequent basis. In the circumstances, they didn’t find it credible that these moves would occur daily. As a result, the UKVI concluded that the employer had knowingly given false information about the work locations and information on the Certificate of Sponsorship. The High Court agreed.
After considering representations from both parties, the High Court concluded that UKVI was justified in its conclusions and were right to question the credibility of all the information they had been given by the employer. Accordingly, the licence revocation was upheld.
With this in mind, it is of paramount importance that sponsors comply with their duties of a licenced sponsor. Although the duties may seem onerous and, to a large degree, administratively burdensome, the potential implications of failing to do so are draconian. In the event that UKVI is unhappy with a sponsor’s compliance (and/or to the extent that it leads them to question their trust in the sponsor), there is a real risk that an employer’s licence will be revoked. The effect of this is that any employees currently being sponsored will have to find alternative sponsorship (or some other means of securing leave to remain in the UK) or will be forced to leave the country. It will also prevent the sponsor from engaging/employing any other migrant workers under Tier 2.
We would strongly recommend that any existing sponsors take steps to ensure that they are fully aware of their obligations, understand what is required of them and that they are fully up to date with any relevant changes to the guidance or requirements. Turner Parkinson has specialist immigration expertise and is able to advise on these matters. Please contact any member of the Employment Team should you wish to discuss your specific concerns further.