We have seen a distinct shift in how UKVI approaches Tier 2 sponsor licence applications and ongoing compliance. It no longer seems to be the right of an employer to obtain a sponsor licence, but more of a privilege.
Traditionally, UKVI may have asked some questions regarding the intention of an employer to obtain a sponsor licence, but this was on a case by case basis. However, as of April 2015, all employers applying for a Tier 2 General sponsor licence must provide answers to a list of mandatory questions, which probe not only their current intention regarding migrant workers, but also their future intention. Additionally, potential sponsors must now justify why they need any identified migrant worker, even before carrying out a Resident Labour Market Test (RLMT).
New sponsor licence applications are not the only area of Tier 2 sponsorship under the microscope. Ongoing compliance is being investigated much more rigorously, with what used to be regarded as minor non-compliance issues now being cause for licence suspensions and revocations. An example of this can be seen in the recent case of Raj And Knoll Ltd v Secretary of State  EWHC 1329 (Admin) (14 May 2015) where the judge upheld UKVI's revocation of a care home's Tier 2 sponsor licence.
The Tier 2 scheme, which is operated on behalf of the Secretary of State for the Home Department (SSHD), allows skilled non-EEA workers leave to remain in the UK to fill particular jobs which cannot be filled by settled EEA workers. Raj and Knoll provides the first real public illustration of what will happen when Tier 2 sponsors perilously fail to comply with the Tier 2 sponsor guidance.
The employer in this case ran three nursing homes in Kent and employed 11 sponsored workers under a Tier 2 licence. The SSHD made a number of visits to the claimant’s nursing homes and found that the employer failed to comply with its sponsorship duties. Finally, in March 2014, the SSHD carried out a further unannounced inspection of the claimant’s nursing homes which subsequently led to a suspension letter. The reasons for the suspension included:
After the employer failed to correct the wrongs set out in the SSHD’s suspension letter, the SSHD subsequently revoked its licences.
The court found in favour of the SSHD. The court saw no substance in any of the claimant's arguments and its judicial review challenge to the SSHD’s decision was dismissed. The court emphasised the importance of complying with the Tier 2 sponsor guidance, and found the claimant’s attitude to the guidance to be “sloppy and cavalier”.
The consequence for the 11 sponsored migrants is that they will have their employment terminated and will have to leave the UK if they do not find an alternative sponsor. Raj and Knoll illustrates a growing effort by the Government to address immigration indirectly by ensuring that people who employ migrants do so in a scrupulous manner so as to prevent any abuse and minimise illegal working.
This more probing approach by UKVI means that employers will need to plan ahead when applying for a sponsor licence and rigorously monitor ongoing compliance with their responsibilities and duties under the licence. Penningtons Manches recommends that you carry out regular audits of the management of the licence and prevention of illegal working checks.
If you have concerns in relation to sponsor compliance and managing your sponsor licence, please contact Pat Saini, Hazar El-Chamaa or Penny Evans.