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UK immigration compliance traps and pitfalls

It comes as no surprise that with immigration being at the forefront of most political parties’ agendas in the recent years, that we have seen a significant ‘tightening up’ of how the Home Office’s approach to right to work compliance.

In the last 12 months alone, the Home Office has revoked almost 2,000 company sponsor licences and has issued nearly 2,500 civil penalties for illegal working, totalling over £130 million. The loss of a sponsor licence not only stops a company’s ability to sponsor new migrant workers from that point forward, but also leads to the following:

Minimum ban of becoming a sponsor for 12 months
All associated entities of the company also being banned from becoming a sponsor for the same period
All sponsored migrants losing their sponsorship and having their visas curtailed
Any dependants of sponsored migrants will also have their visas curtailed
Fines of up to £60,000 per illegal worker with no upper limit

Whilst the traps and pitfalls of immigration compliance apply to all UK companies, including both those who have sponsor licence and those who do not, companies that operate in the hospitality sector, with its reliance on casual staff, high turnover rate and flexible working hours are the most at risk. Below is a list of key things to take note of to ensure your business does not fall foul of the rules:

Right to work checks

From 6 April 2022 the Home Office no longer accept copies of a physical immigration document i.e. biometric residence permit, vignette etc., as evidence a migrant’s right to work in the United Kingdom. This means that from 6 April 2022, you will need to conduct an online right to work check for all new and prospective migrant employees, including those you have been newly sponsored – you can do this by asking the relevant employee to obtain an employee Share Code after which you can verify right to work check via the Home Office website. You can print a copy of the confirmation and keep the same in the relevant HR folder.

You will not need to conduct retrospective checks for any employees employed/sponsored on or before 5 April 2022.

A similar check will need to be completed for any staff whose visa has expired but have a pending application with the Home Office.

Salary and working hours

Contrary to popular opinion, the Home Office does not accept Tronc or any other bonus payment as part of the salary threshold to meet the relevant requirement. If the Home Office becomes aware that Tronc has been included to meet the threshold, the company will lose its licence.

At present, companies can sponsored staff on an hourly basis, however it is important to stay mindful that the Home Office will consider the average over a regular cycle, no more than 17 weeks, to determine whether the threshold is met.

Leave and unpaid leave

Sponsored migrants can only take a limited amount of unpaid leave, however there are a number of exceptions, as below:

Statutory maternity, paternity, parental, shared parental, adoption or neonatal care leave
Sick leave
Assisting with a national or international humanitarian or environmental crisis, with your agreement
Taking part in legally organised industrial action
Jury service
Attending court as a witness

Unpaid leave in excess of any limit must result in the sponsored migrants leave being terminated – failure to terminate a migrants leave whose absence has exceeded the limit can result in the licence begin revoked.

Unpaid leave that does fall within the exemptions must be reported on the licence – failure to do so can also result in the licence being revoked.

Branch sites

Sponsored staff are not permitted to work at other trading sites which are not linked to the licence – if you are a brand that operates multiple sites and have sponsored staff working at these sites, either in addition to their core work address, or as part of a full location transfer, it can be classed as illegal working resulting in both a fine and revocation of the licence. To permit the legal employment at another operating location, ensure the relevant sites details and accompanying documents are provided to the UKVI.

Visalogic assist several of the UK’s most well-established restaurants and hotels in their compliance matters and offers no charge for compliance queries or ad hoc advice – if you would like to discuss any of the above, please feel free to contact us on 0800 772 0471.

You can view a list of hospitality partners at https://www.ukhospitality.org.uk/supplier/visalogic/