Sponsor Compliance Visits Case Study
Two recent High Court cases give us an insight into the approach of the Home Office to sponsor compliance visits for care providers. They highlight the risks for care providers who rely heavily on sponsored workers to fulfil their contracts.
Sponsor Compliance Visits at Prestwick Care
Prestwick Care is a group of three companies who operate 15 care homes. They employed 219 sponsored workers.
Following an inspection, their licence was revoked. The reasons for revocation were that;
- Prestwick Care had included inflated job description on certificate of sponsorship for Senior Care Workers. When interviewed, 5 workers were not performing all of the duties listed. This led the Home Office to conclude that these were not ‘genuine vacancies’.
- Prestwick Care had deducted sums from the workers’ salaries which suggested that they were not being paid the amount stated on their certificates of sponsorship. The workers did not understand what these deductions were for.
- Prestwick Care was said not to be complying with the legal obligation to pay statutory sick pay and had told three workers that the employer did not pay any sick pay. They were therefore not complying with UK employment law.
- Prestwick Care sought to recover the immigration skills charge from sponsored workers.
- Prestwick Care were not ‘demonstrating practices and procedures in line with the values of the sponsorship regime as set out in the guiding principles for sponsorship’. This related to the fact that sponsored workers were not told how much they could be asked to repay to the sponsor until they arrived in the UK from abroad by which time it was too late to object.
The sponsor challenged the revocation on a number of grounds, none of which were upheld. It is notable that errors were found in a handful of cases- around 8 employees out of 219. This was enough to justify revocation of their licence.
In addition, the sponsor also relied on evidence as to the impact on the business and the availability of social care services which was described as ‘devastating’ and extremely detrimental to vulnerable clients. This was found not to be a relevant consideration.
Supporting Care Limited
Supporting Care Limited is a domiciliary care provider. They employed 68 sponsored workers out of a total of 162 staff.
Following an inspection, their licence was revoked based on allegations of six breaches of the sponsor guidance. However, by the time of the High Court hearing this had been reduced to one breach in relation to on employee. That employee was found not to be performing 2 of the 8 duties listed on her certificate of sponsorship. These were duties that would push the role into a ‘senior care worker’ position.
This revocation was successfully challenged through judicial review. However, the only reason that the case succeeded was that the Home Office had not given consideration to the impact of the revocation on the 68 sponsored workers and their families, or on vulnerable service users.
This does appear to be inconsistent with some of the comments made by the judge in the Prestwick Care case. Therefore it is possible that this could be appealed.
Key take aways for sponsors
These cases highlight the ‘light trigger’ approach that the Home Office take to revoking sponsor licences. Although there were a number of compliance breaches at Prestwick Care, that was in the context of a large number of sponsored workers. In the case of Supporting Care Ltd, there was a single breach in relation to a single employee.
Where any business relies heavily on sponsorship to recruit enough staff, it is vital to invest in compliance. If a large percentage of your staff are sponsored workers, then loosing your licence could lead to insolvency.
The focus on treating sponsored workers ‘fairly’ is a new focus for the Home Office. There have been widespread reports of exploitative behaviour in the care sector in particular and this has led the Home Office to focus on breaches of employment law and general ‘fairness’ more than they did in the past. If you do intend to recoup any expenses from sponsored workers, it is important to make sure that they are aware of this in good time so that they have a realistic option to decide not to accept the offer of employment. Sponsors should also consider whether an outside observer would consider the treatment ‘fair’ taking into consideration the imbalance of power between sponsored workers and their sponsors.
The judges in the two cases reach different conclusions about the need for the Home Office to consider the broader knock on effects on revocation. However, sponsors should not assume that they will be treated leniently based on the sector that they operate in or because of the impact of revocation.
If you have concerns about sponsor compliance our experienced team of immigration lawyers can assist. We offer a free initial consultation and provide flexible services depending on your needs.