Common Working Practices Risk Home Office Enforcement Action

Article by Anne Morris

While hiring engineers from overseas is helping to ease skills shortages in the UK, employers are warned to check they are not falling foul of their compliance duties and unwittingly risking Home Office penalties.

RECRUITING internationally has become critical to meet the demand for skilled chemical, biochemical and process engineers in the UK, as domestic skills shortages are exacerbated by declining numbers of EU workers in Britain since the referendum vote in 2016. The ability to access the global talent market, however, comes at a price for employers.

Filling labour gaps with engineers from non-European Economic Area countries requires companies first to apply to the Home Office for a sponsorship licence. Operating a licence places substantial and onerous duties on you as an employer, regardless of the size of the company or how many non-EEA workers are sponsored.

Failure to meet these duties will place your company at risk of Home Office investigation, site inspections (‘raids’), and enforcement action, including fines of up to £20,000 per illegal worker and suspension of the organisation’s licence and permission to employ overseas engineers and other skilled workers.  

But across chemical, biochemical and process engineering, a number of seemingly ordinary working practices are exposing employers to Home Office penalties.

Proactively identifying and addressing these issues can help your organisation avoid Home Office scrutiny for noncompliance.

Common risky practices

Sponsor licences are highly prescriptive in specifying what sponsored employees can and cannot do under their Tier 2 skilled worker visa, such as working hours, locations and duties.

Working outside these terms – even where it would ordinarily be considered a reasonable and standard working practice – can render the employer noncompliant.  

For example, while a role may require an engineer to work across different research or production facilities or management offices, each site has to be expressly permitted under the licence.

Similarly, working hours must reflect the licence-approved working pattern. Significant and consistent overtime working would be considered noncompliant.

Working hours and locations can be amended on the company’s Sponsor Management System (the online Home Office system containing all information relating to your company licence and sponsored workers), but this has to be within the code of practice as per the original Tier 2 requirements.

Another issue relates to salary payments for engineers working under a Tier 2 visa. The immigration rules require Tier 2 workers to earn above the prevailing minimum salary threshold, but where employers are routinely deducting visa costs and other recruitment expenses from this pay, it is in breach of both immigration rules and employment law legislation.

The Home Office is now routinely cross-referencing the data it holds about migrant workers with their individual HMRC records, providing unprecedented quality of intelligence and leading to more informed immigration investigations into salary payments.

Another common area of risk relates to leavers’ personnel records. The Home Office has the right to request employee documentation for up to two years after a sponsored employee has left your employment, but companies often delete or destroy leavers’ documents before this date. Penalties can be issued if you are unable to produce this documentation when requested by the Home Office

How to stay compliant

Record keeping

Effective record keeping is a top priority as the Home Office relies heavily on employer documentation for immigration enforcement purposes.

In practice, employers can often struggle to meet the required standards, from copying and retaining right-to-work documents in the correct manner, to updating information about the company and its migrant workers on the Sponsor Management System (SMS).  

The Home Office expects your SMS information to be up to date, providing a snapshot of your business at any given time. Failure to maintain the information in the SMS is in breach of the company’s duties.

Consistency across all sites

One of the biggest compliance challenges for companies operating across multiple sites is ensuring consistency across the network.

While investment is made in an HR and compliance infrastructure, implementation can fall short if there are differences in working practices across a company.

Some sites and personnel may follow headquarters' direction, whereas others go native; management discretion can present a risk where local recruitment decisions or compliance processes locally do not comply with company policy. The rush to fill a vacancy and ‘get someone in’ may take priority over the correct processes as required by the UK immigration rules, and in doing so, can place the entire organisation’s sponsor licence at risk.

Without exception, every site within a company’s UK network has to meet the same high standards for immigration compliance.

Regular audits and compliance spot-checks are extremely useful in identifying weaknesses – and a preferred alternative to Home Office enforcement officials finding issues and taking action against your organisation.

No respite for smaller businesses

For smaller companies, meeting licence duties on an ongoing and consistent basis can be challenging, particularly if there is no dedicated HR resource within the business. It’s not however a situation that the Home Office will accept as a defence. Regardless of the size of operation, or how many migrant workers you sponsor, employing Tier 2-visa engineers demands unequivocal compliance with the regulations.  

Compliance matters

Ultimately, the Home Office is expecting sponsor licence holders to make immigration compliance part of their everyday business operations.

Processes, policies, personnel knowledge and working practices must all be aligned to the licence duties and meeting Home Office standards throughout the organisation.

Employers are also advised to ensure their compliance is in order and ready for the transition to a new immigration system, which the Government says will be in place by 2021.

While the terms of Brexit remain unclear, the Government is pushing ahead with its plans to overhaul the UK immigration rules, including making EU citizens subject to the same skills-based immigration rules as non-EEA nationals.

Recruitment, compliance and workforce planning will all inevitably be impacted in this new world.

Article by Anne Morris

Solicitor and Managing Director at UK immigration law firm DavidsonMorris

Recent Editions

Catch up on the latest news, views and jobs from The Chemical Engineer. Below are the four latest issues. View a wider selection of the archive from within the Magazine section of this site.