The Home Office has published its most recent updates to sponsor guidance and Appendix D, which sets out the record keeping obligations which sponsors must abide by. We have set out the details of the key changes. Level 1 Users and Authorising Officers and anyone else assisting with Tier 2 immigration matters should make sure they are aware of these changes and their impact on the business.
Changes to Tier 2 and 5 Sponsor Guidance
The Home Office recently added an addendum to the Tier 2 and 5 sponsor guidance. This reiterates the Home Office’s view that holders of a Tier 2 and/or Tier 5 sponsor licence are in a position of trust. The Home Office emphasises that it will not grant a sponsor licence to or may take compliance action against any prospective sponsor or sponsor ‘whose actions and behaviour are non-conducive to the public good’.
The Home Office state that these include but are not limited to the following:
- Fostering hatred or inter-community division;
- Fomenting, justifying or glorifying terrorism; and/or;
- Rejecting the rights of, or discriminating against, other groups or individuals on the basis of their gender, gender identity, sexual orientation, marital status, race, religious belief (including lack of belief), or any other protected characteristic under the Equality Act 2010.
The third point is likely to be the most concerning to employers. This suggests that the Home Office may not grant a sponsor licence or may revoke a sponsor’s licence if there is a finding of discrimination against the employers. It remains to be seen how this will work in practice, particularly as some of the most high profile discrimination findings have been against public bodies such as the Home Office itself, the police and the NHS.
However, if an employee raises an allegation of discrimination or brings a discrimination claim employers should be aware that this could impact their sponsor licence. In particular, employers who have had decisions in the Employment Tribunal go against them, for example, could be in line for a Home Office audit and potential compliance action. Unfortunately tribunal decisions are usually a matter of public record and it is therefore possible for sponsor compliance caseworkers to find out this information fairly readily.
Appendix D update to record keeping requirements
Appendix D to the sponsor guidance sets out the sponsor’s obligations in relation to record keeping. If the sponsor does not comply with these obligations the Home Office may take action, including suspending or revoking the licence or downgrading the sponsor licence rating and placing the sponsor on an action plan. It is therefore essential that sponsors ensure that they are complying with the latest guidance. We are able to carry out mock audits to assess this.
The main changes are set out below:
- New obligation to retain evidence of the Tier 2 migrant’s date of entry when the migrant entered through automated eGates: Since 20 May 2019 nationals of Australia, Canada, Japan, New Zealand, Singapore, South Africa and the USA have been eligible to use eGates. This means that nationals of these countries may not have their passport stamped and therefore may find it more difficult to demonstrate when they entered the UK.
We advise that employees do not use the eGates the first time they come to the UK to activate their Tier 2 entry clearance. However, if they have used the eGates sponsors now need to retain additional evidence of the Tier 2 migrant’s entry to the UK (such as travel tickets, boarding pass etc). This evidence must then be retained on their immigration file ready for inspection by the Home Office during an audit visit.
- Document retention periods: Documents in relation to a Tier 2 migrant for sponsor licence compliance purpose must be retained for one year from the end of the migrant’s sponsorship (including if they move immigration category, such as by obtaining indefinite leave to remain) or the date on which a compliance officer has examined and approved them (usually during an audit), if this is less than one year after sponsorship ended.
However, in some cases documents may need to be retained for longer for other purposes. For example, documents retained as part of right to work checks must be retained for two years after employment ended. Documents relating to pay and benefits should usually be retained for at least 6 years. The guidance has been updated to clarify this point.
Comment
We recommend that, going forwards, sponsors ask to see the Tier 2 migrant’s passport to check if they received a stamp when they first entered the UK under Tier 2. A copy of that page should be retained, together with the other copies taken as part of the right to work check.
If the person used the eGates the sponsor must ensure it obtains evidence of the person’s entry into the UK and must retain copies of that on their file. Failure to do so would place the sponsor in breach of their record keeping obligations.
Kerry Garcia