High Court confirms companies will be held to strict compliance obligations under the Tier 2 sponsorship regime

Background

An IT consultancy firm was granted a Tier 2 sponsor licence in October 2013 as it required IT experts that it could not find from the UK workforce. In November 2014 the Home Office made an unannounced visit to the company’s premises to carry out an audit.  In March 2015 the Home Office wrote to the company to suspend its licence based on concerns regarding a number of issues. 

In order to sponsor someone under Tier 2 (General) in most cases the employer must first carry out the Resident Labour Market Test (“RLMT”) and must be satisfied that there are no suitable applicants from the UK or EEA workforce.  The RLMT involves advertising the role in specific places for at least 28 days and prescribed documents must be retained as evidence that the RLMT was carried out properly. This includes a screen shot of the adverts with the URL of the relevant website to show when the advert was first posted.

The Home Office was of the view that the company had failed to keep the required evidence relating to the RLMT.  The first advert was not a screenshot as it consisted of text only with no URL visible from the website and the second advert did not show the date that the role was first advertised or the date on which the screenshot was taken.

In addition, the sponsor had assigned the Certificate of Sponsorship more than six months after the role had first been advertised.  This was a breach of the guidance for Tier 2 sponsors which requires Certificates of Sponsorship to be assigned within six months of the date the position was first advertised. Failure to do so is one of a long list of mandatory grounds for revocation of a licence.

Based on the above the company’s licence was revoked in May 2015. This meant that the existing Tier 2 migrants would ultimately need to leave the company’s employment and the company could not sponsor any new Tier 2 migrants.

The company sought to challenge this decision by way of a judicial review.

Decision

In this case of R (Sri Prathinik Consulting Limited) v Secretary of State for the Home Department [2017] EWHC 3204 (Admin) the High Court dismissed the company’s application for judicial review. The High Court summarised the principles set out in recent case law reinforcing that it is a privilege for a company to be granted a sponsor licence and the high level of responsibility that comes with this privilege.

Comment

The High Court has asserted again that one of the main principles underlying the legal framework of sponsorship under the Points Based System is that employers benefitting from migration under this scheme are expected to fulfil their sponsor obligations and their role in ensuring that the immigration system is not abused. Sponsors continue to be held to a very high standard regarding meeting their compliance obligations.

In particular, the Home Office’s guidance for sponsors sets out a number of mandatory and discretionary grounds that trigger revocation of a sponsorship licence. Given the number of breaches that can lead to revocation of a licence, this case has implications for sponsors as it demonstrates the thread running through the cases of the strict interpretation by judges of the obligations placed on sponsors to meet their compliance duties.

The view is that, while the obligations placing responsibility onto sponsors to undertake an active role in immigration control may be viewed as onerous, sponsors opt into taking on this level of responsibility when they obtain sponsorship licences. The Court stated that “[s]ponsors have advantages and cannot complain if they are required to comply with relevant Guidance”.

It is however all too easy for employers to inadvertently fail to comply with these obligations and the Courts will have little sympathy. It is therefore essential that all sponsors ensure they keep up to date and are aware of their obligations as a sponsor and that regular checks are made to ensure that the correct records are being kept, notifications are being made in a timely manner, that the RLMT requirements are met in full and that there is always at least one current employee in place undertaking the position of Level 1 User, Key Contact and Authorising Officer.