The Court of Appeal recently dismissed a judicial review application against the Secretary of State for the Home Department's (SSHD) decision to revoke and subsequently maintain the revocation of the appellant's Tier 2 Sponsor License. The Secretary of State's decision to terminate the license was predicated on the appellant's numerous failings in its obligation to comply with UK Visa and Immigration (UKVI) guidance procedures.
Employers need to be licenced by the UKVI section of the Home Office in order to be able to apply for, and subsequently issue, the necessary Certificates of Sponsorship (CoS) for any of their Tier 2 (General) Migrant employees.
However, in order to acquire and maintain their licence, a sponsor is obliged to play an active role in the support of immigration control through diligent compliance with the UKVI guidelines to ensure that the system is not abused. The two main roles of a Sponsor are:
to provide evidence that a migrant will fill a genuine vacancy that cannot be filled by a suitable 'settled' worker; and
to provide a pledge to the SSHD that it accepts all of the duties and obligations that come with the responsibility of sponsoring migrant workers.
Tier 2 guidance requirements
To conduct a Resident Labour Market Test (RLMT), where applicable, to evidence that no suitable settled worker from the local labour market had applied for the job before a CoS was assigned.
The RMLT must have involved the sponsor advertising the relevant role for a period of not less than 28 days and if an agency was used there must have been a sufficient link between the advertisement and the sponsor.
To keep on record, and to produce when asked, documentary evidence to show that the RLMT was carried out correctly.
To report any change in/of circumstances in respect of the sponsoring business (e.g. a change of registered address).
To report, within 10 working days, any changes in the circumstances of the employees that it sponsors (to include: non-attendance, non-compliance or disappearance as well as changes to an employee's position/title, salary or location).
The reporting duties are carried out by the sponsor through the Sponsor Management System (SMS) and compliance is monitored by the Sponsor Compliance Unit at UKVI. The recent Court of Appeal case highlights the very serious ramifications for sponsors failing to take their compliance obligations seriously. The enforcement powers of the SSHD include, but are not limited to:
Revoking, suspending or downgrading the licence;
Reducing the number of CoS which the sponsor is allowed to assign;
Referring matters for civil penalty action; or
Bringing criminal proceedings where a sponsor is guilty of employing illegal immigrants.
Were a sponsor to lose their Licence then their respective Certificates of Sponsorship in issue will also fail and dependent employees will have (the lesser of 60 days or however long is left of their current visa) to make a new visa application. Failure to make an application within the requisite period will result in the relevant employee having to leave the UK. The sponsor will also not be able to apply for a new license for a minimum of 6 months.
The employer in question, a proprietor of 3 nursing homes, was subjected to UKVI compliance inspections on 30 September 2013 and 18 March 2014, during which a host of failures in their compliance with the UKVI guidance were identified and put to the employer. Among other things, the sponsor had failed to notify the UKVI through the SMS of a change to their registered address, failed to provide accurate, and up-to-date, working addresses for its Tier 2 migrant employees, had failed to maintain adequate record keeping in respect of their RLMT obligations and had failed to comply with certain RLMT requirements.
After the second compliance inspection, UKVI gave the employer 20 days to account for the failings and while the employer provided partial / incomplete submissions in respect of their RLMT evidence they provided no explanation in respect of discrepancy in their registered address or the working address of their migrant employees. In response, UKVI subsequently exercised their authority and revoked the employer's license. The employer challenged the decision by way of Judicial Review, however, at both first instance and at the Court of Appeal the challenge was dismissed and the revocation upheld.
The principal purpose of the record-keeping requirement is that information as to sponsored employees, including their whereabouts during the working day, is instantly available to the UKVI from an obvious and identified source, namely the SMS. The Court unequivocally dismissed any suggestion that the failures in record keeping should be considered an error of form rather than of substance. Instead the Court stressed that compliance in keeping accurate and up-to-date records strictly in the manner prescribed by UKVI (through the SMS) was of critical importance and goes to the root of what is required. Only through strict compliance with the guidance can UKVI ensure that the system is not abused and that effective immigration control is maintained.
The ruling strongly reiterated that, at the very foundation of the system, the Secretary of State imposes a "high degree of trust" on sponsors to implement and police immigration policy and that the authority to grant a CoS is a privilege which carries great responsibility but which is also a privilege which can be rescinded or curtailed. The sponsor is expected to carry out its responsibilities "with all the rigour and vigilance of the immigration control authorities."
In his summation, Lord Justice Tomlinson was critical of the appellant sponsor's "cavalier approach to record-keeping and [their] failure either to understand or to acknowledge both its purpose and importance and the nature of the responsibility cast upon licence sponsors as the quid pro quo of the advantages conferred upon them" and that their "…inappropriate attitude to compliance … did not deserve the trust being placed in it" [at para 40].
This ruling is useful, in that it reaffirms much of the case law in respect of Tier 2 sponsor's obligations to strictly comply with the requirements that attached to their license; to exercise their active and vigilant role in support of the immigration control. However, it also serves as a stark reminder that constant and vigilant compliance with UKVI guidance is the minimum standard expected of a sponsor and that their right to issue a CoS is contingent upon strict adherence to the Immigration Rules.