compliance in the
9 November 2023
Last week, Smith Stone Walters reported on the growing concerns over the exploitation of overseas workers in the adult social care sector. Reported cases of care worker exploitation have risen dramatically since the UK government made care workers and home carers eligible for sponsorship in February 2022, leading to a spike in international recruitment in the sector.
Experts have warned that overseas care workers may be disproportionately at risk of exploitation compared with domestic workers, as their visa conditions mean they are tied to their sponsored job and employer in order to stay in the UK, and are often trapped in ‘debt bondage’ – a form of modern slavery – due to the significant immigration fees they have paid to secure their visa.
The Home Office has publicly addressed the issue, stating that unscrupulous employers in the care sector will not be tolerated and sponsors of overseas care workers risk losing their sponsor licence if they are found to have undertaken any illegal employment practices.
Throughout 2023, the Home Office has increased its focus on sponsor compliance in general, carrying out more unannounced compliance visits and rolling out the use of automated checks on sponsors. As the care sector is one of several seen as ‘high risk’ in the eyes of the Home Office, employers are advised to take extra care in ensuring their compliance processes are watertight to avoid adverse action being taken against them.
In this article, we set out the basic principles of sponsor compliance in the care sector and the key areas the Home Office will focus on during any compliance checks.
What are ‘sponsor duties’?
Employer sponsorship forms an integral part of the UK’s immigration system, and the Home Office relies heavily on employers to help uphold the Immigration Rules and prevent illegal working, or face significant consequences.
Once a sponsor licence has been granted, sponsors are required to uphold certain responsibilities known as ‘sponsor duties’. Your duties as a licenced sponsor include:
- Reporting duties
- Record keeping duties
- Complying with UK immigration laws, including all parts of the Worker and Temporary Worker sponsor guidance, and complying with wider UK law
- Not engaging in behaviour or actions that are not conducive to the public good
The ability to sponsor overseas workers is seen as a privilege and not a right, therefore failure to comply with your sponsor duties can result in your sponsor licence being downgraded, suspended or revoked.
Reporting is a key part of your sponsor duties and you must tell the Home Office about any significant changes that affect your sponsored workers or your organisation. Changes that must be reported include, but are not limited to:
- Changes to a sponsored worker’s circumstances (such as a change in job title, salary, or other significant changes to their employment).
- Changes to a sponsored worker’s normal work location as recorded on their CoS.
- If a sponsored worker is absent without permission for more than 10 consecutive working days.
- If you stop sponsoring a worker for any reason.
- Changes to your organisation’s circumstances (such as a change of address, changes to your Key Personnel, or if you are convicted of a relevant offence).
Such changes must be reported within set time limits as specified in the guidance for sponsors – usually within 10 working days or within 20 working days, depending on the change(s) you are reporting.
Changes are usually reported using the online Sponsorship Management System (SMS), although in some cases you may need to notify the Home Office using the sponsor change of circumstances form.
It is essential that you are regularly logging into your SMS account and have a dedicated member or members of your staff nominated as the ‘key personnel’ responsible for reporting such changes within the given timeframes.
Record keeping duties
As a licenced sponsor, you are required to keep accurate, up to date records on your sponsored workers and the running of your organisation.
These documents can be kept in paper or electronic format, but they must be made available to the Home Office if requested. If you fail to provide the documents when asked or within the timeframe specified, the Home Office may take action against you.
You must keep certain documents for each worker you sponsor. Appendix D of the sponsor guidance lists these documents and how long you must keep them.
Some of the documents you must keep as part of your sponsorship duties may also need to be kept for other purposes and, in some cases, for a longer period than that which required for sponsorship purposes (for example, to comply with legislation on preventing illegal working). You must meet any legal requirements for record keeping set by the Home Office or another government department. You must also be aware of your responsibilities under the Data Protection Act 2018 and the General Data Protection Regulation.
During a compliance visit, the Home Office will usually want to see all relevant documentation and how it is being stored. It is therefore important to keep comprehensive records for each employee according to good practice and store them so they can be quickly provided to the Home Office upon request.
Complying with UK law
The sponsorship system reflects that those who benefit directly from migration (employers, education providers or other organisations who bring in overseas nationals) should play their part in ensuring the immigration system is not abused.
Sponsors are therefore required to comply with all aspects of the Immigration Rules and the the guidance for sponsors, as well as wider UK law.
This includes only applying to sponsor workers where there is a ‘genuine vacancy’ that meets the requirements of the route you are applying under, and ensuring that your workers are appropriately qualified, registered or experienced to do the job they will be doing.
You also have a duty to comply with UK employment law, including, but not limited to, National Minimum Wage, the Working Time Regulations, and (where required) enrolling your employees on a pension scheme.
Finally, the sponsor guidance states that all sponsors have a responsibility to behave in a manner that is ‘not detrimental to the wider public good’. The Home Office will refuse a sponsor licence application or take the appropriate compliance actions if a prospective or existing sponsor is engaging, or has ever engaged, in such behaviour or actions
It is important to bear in mind that some overseas workers may not be aware of their rights as an employee in the UK, but the Home Office can and will check that sponsors are treating their workers fairly and in accordance with UK law.
Support with sponsor compliance in the care sector
More information about sponsor duties and compliance can be found in the Home Office guidance here.
If your care home is looking to recruit skilled workers from overseas, Smith Stone Walters can help. We have worked with many employers in the adult social care sector to help them secure sponsor approval, obtain Health and Care Worker visas for their new hires and maintain compliance with the immigration rules.
To find out more about partnering with us, please contact us today.