Do you have a Sponsor Licence?
What You Can Learn from The Byron Hamburger Case – Stuck between a bun and a hard place?
It was almost biblical. Conjuring up images of the great plagues unleashed by Moses in the Exodus story, two protest groups released a “swarm of insects” into two of Byron Hamburger’s restaurants in London on 29th July 2016, forcing the restaurants to close their doors to the public.
But why did this happen? Who was to blame? Byron, its employees or the Home Office?
The protest groups stated that they did what they did because Byron had assisted the Home Office during an immigration raid by lying to their own employees in order to entrap them. They called Byron’s actions “despicable” and accused them of having “entrapped waiters, staff and chefs” in collusion with the Immigration authorities. They explained that they were trying to “defend these people and their families from dehumanised treatment”.
Byron on the other hand explained that they had acted correctly and were only doing what the law demanded of them. There was no doubt that this has turned into a public relations nightmare for the chain even though the Home Office has said that Byron carried out the correct checks on staff members and would therefore not face a penalty.
In other words – as a business, Byron Hamburgers has found itself caught between a rock and a hard place – Doing everything right in relation to complying with immigration law. But the backlash on social media and the protest action has rattled both Byron and other businesses owners who employ workers from outside the EU. What should an employer do in a situation like this?
Are you a business owner in a similar situation?
What are your options?
- Comply with Home Office demands and be subjected to trial by social media and business disruption, or
- refuse to co-operate with inspections or ‘raids’ and be blacklisted by immigration officials, face fines and the possible loss of their Sponsor Licence?
Below, I will explain the best way for a business that employs international workers to protect itself from both public backlash and Home Office sanction: Basically, you need to:
- Have a thorough understanding of the responsibilities and compliance obligations which come with holding a Sponsor Licence; and
- Instruct an experienced immigration solicitor to conduct regular ‘mock audits’ to ensure HR processes and procedures are up-to-date and are fit for compliance purposes.
The responsibilities of a Sponsor Licence holder
To recruit international workers (from outside the EEA), an employer must apply for a Sponsor Licence.
To be eligible for a licence the applicant organisation must:
- be genuine and operating or trading lawfully in the UK
- be based in the UK
- hold the appropriate planning permission or Local Planning Authority consent for the type of business operated at the trading address (if required)
- be ‘honest, dependable and reliable’
- not represent a threat to immigration control, and
- be willing and able to comply with the sponsor duties and responsibilities
- meet the ‘suitability criteria’, including, but not limited to, displaying that they have the relevant human resource and recruitment systems in place to meet the sponsorship duties.
When an organisation obtains a sponsor licence it must comply with a number of duties and responsibilities to the Home Office. When it applies for the licence, it is declaring that it is capable of complying with all of these. These include:
- monitoring immigration status and preventing illegal employment
- maintaining migrant contact details
- other record keeping
- monitoring and reporting migrant activity
- ensuring that relevant professional registrations and accreditations have been obtained
- reporting various changes of circumstances to the sponsor
- complying with the law
- cooperating with the Home Office
- only assigning the certificate of sponsorship to employees where the job role is suitable for sponsorship
- ensuring that relevant HR systems are in place (for example, keeping copies of employees’ ID and right to work documents, keeping employee contact details up to date etc…)
The consequences of failing to comply with the duties can be serious, including the Sponsor Licence being downgraded or revoked and the rights of existing sponsored employees being negatively affected.
Preparing for a Home Office visit
The Home Office is able to carry out compliance visits (also known to some as raids) to the premises of licensed sponsors, or any site under the sponsor’s control, at any time; and they do not have to give you advanced warning. It may also want to carry out a visit as part of its pre-licence checks, or following an application to renew a licence or report/notification it has provided to the Home Office.
The best way to prepare for a Home Office visit, and make sure that your HR systems and record keeping are compliant and up-to-date with any regulatory changes is to have an experienced immigration lawyer undertake a mock audit at your premises. They will test your processes and procedures to the same level that the Home Office will. Once complete, they can identify any weaknesses in your systems and work with you on a strategy to rectify the problem. This means that by the time the visit comes about, you will be operating in a manner that is in accordance with the immigration rules.
This is a service that many businesses have requested from Saracens and I am sure that but for the mock audits carried out and the corrective action that followed, a large number of these businesses would have lost their licenses, without even really knowing why.
Harsher penalties for Employers under the Immigration Act 2016
Carrying out these mock audits, testing your systems and fixing any holes in them is easily the best course of action. No one wants to be caught unprepared when the Home Office comes calling. The Immigration Act 2016 has raised the stakes for employers who are found guilty of employing illegal migrants.
The 2016 Act states that both employers who knowingly employ illegal workers and those who have ‘reasonable cause to believe’ that an employee is disqualified from employment by reason of their immigration status are committing an offence. In addition, the maximum term of imprisonment for what is a criminal offence is increased from two to five years.
Immigration officers are also empowered under the Act to arrest without warrant any person who they have ‘reasonable grounds for suspecting’ has committed or is attempting to commit the offence of employing a person illegally and furthermore, immigration officers can issue an ‘illegal working closure notice’ to shut a business premises down for up to 48 hours in certain circumstances where illegal working is suspected.
An investment that pays off
Given the severe new penalties that can now be imposed on employers who have illegal workers on their staff, and the public relations fallout that can occur if, like Byron Hamburgers, you are forced to co-operate with Home Office ‘stings’, investing the upfront time and money in a mock audit makes absolute sense.
Immigration law is constantly evolving, and the current Government has an unfortunate habit of sneaking in regulatory changes very quietly and very effectively, especially if it provides them with an opportunity to curb, cut or control the numbers of immigrants coming into the country.
We have to recognise that not all immigration is bad and we need a regular flow of immigrants into the country to support the economy. But we don’t want a situation where companies or businesses like yourselves are unsure about what to do – No one wants to be damned if they do and damned if they don’t. It’s no fun being stuck between a rock and hard place. It’s not fair either.
Employers have enough on their plates without trying to keep up with immigration law changes. A six-monthly mock audit will keep you confident that your processes and procedures are fully compliant with Home Office policies and regulations, and any surprise visits from officials will pass without a hitch. Think about it – It really is a no brainer.
As an employer, with so much else to worry about in your business, this is one situation where peace of mind is possible and also priceless.
Saracens Solicitors is a multi-service law firm based in London’s West End. We have dedicated and highly experienced immigration solicitors who can assist you with Sponsor Licence applications, compliance issues and audits. For more information, please call our office on 020 3588 3500.