Brownlie v Four Seasons Group
In order to obtain a Sponsor Licence from the Home Office, IT service providers must sign up to various duties and obligations as part of the UK’s Sponsor Licence compliance regime. The Home Office takes the view that as employers benefit directly from sponsorship, they must play their part in ensuring the system is not abused. Significant trust is placed in a Sponsor and with this comes a responsibility to be fully compliant with the Home Office rules. In R (Raj and Knoll Limited) v Secretary of State for the Home Department, the court outlined that the role of the court is simply supervisory and the Home Office is entitled to maintain a “fairly high index of suspicion” and a “light trigger” with enforcing compliance. The courts further noted that they will respect the experience and expertise of the Home Office to ensure robust immigration control. In short, it is essential that sponsors keep the Home Office on side.
Increasingly, the Home Office has been undertaking unannounced audits, particularly but not exclusively, for those employers who are deemed to score highly in the Home Office’s risk assessment matrix. Compliance audits are now more robust and detailed, frequently lasting several hours and including interviews with HR staff and Tier 2 visa holders. HR systems will be tested during a compliance visit and failure to comply can lead to the suspension and possible revocation of the Sponsor Licence. It is fair to say that no company can be 100% compliant all of the time; human error, IT issues and rogue employees exist in all walks of business. It is therefore important to have procedures and policies in place to catch these issues.
We have identified four recent changes to the way in which the Home Office undertakes these compliance visits:
Home Office visits to client sites
The Home Office has begun a more worrying trend of visiting client sites and interviewing Tier 2 visa holders based at these sites. The Home Office guidance was recently amended to emphasise the need for sponsors with migrants working at client sites to ensure that the third party is aware of the possibility of unplanned and unannounced visits and checks being conducted at their premises and ensure their full cooperation. We have very recently had experience of this two-pronged approach where a compliance officer will attend the sponsor’s office and a second officer will visit the client site at the same time!
Why does the Home Office scrutinise the IT service sector?
The alleged abuse of the Tier 2 route by IT service providers has been mooted for years. It is true that such companies account for a very high proportion of all Tier 2 workers in the UK. Critics have been harsh in suggesting they are a vehicle to undercut the UK’s resident IT workforce by providing IT services on low-cost services contracts. The Migration Advisory Committee (MAC) made various recommendations to address this issue and we have seen the closure of the Tier 2 ICT short term visa route, an increase in minimum salary requirements and the introduction of the skills charge for Tier 2 ICT route. This is clearly aimed at cutting out the lower end of the ICT scheme by making it too expensive to bring over less experienced IT staff to the UK.
Whatever the arguments are about the need for skilled IT workers and whether they are undercutting resident IT workers, it remains a fact that huge government contracts rely on overseas companies providing outsourced software development and IT services.
What should IT service providers be doing?
Steps IT service providers can take to safeguard their businesses and ensure compliance include:
Further information and guidance
If you have questions about any of the issues raised in this blog, please contact a member of our immigration team.
We have been working within clients in the IT sector for over 20 years, including large, medium and small-sized IT companies. We understand the challenges and nuisances of the industry and we tailor our compliance advice accordingly. We understand your business model and that it is not simply about the Tier 2 visa holders, it is about servicing the multi-million pound global contracts.
Our specialist immigration team offers bespoke and fixed cost packages of support to Sponsors, including advising and preparing them for Home Office compliance audits as well as in maintaining on-going compliance. Our compliance “health check” packages involve members of our experienced team attending your offices to undertake a review of your compliance files, HR processes and current immigration policies to assess whether or not these would satisfy a Home Office visiting officer. If required our employment team can draft office manuals, employment contracts and offer letters to assist with the HR documentation. In the event of a compliance breach, we work closely with our criminal, reputation and media, corporate and internal investigations lawyers to manage any crisis to protect and defend your business and professional interests.
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