A parliamentary committee’s report on lack of control over intra-company transfers (“ICT”) is predicted to spark enforcement of sponsor’s obligations.
On 17 May, 2011 a report was published by the Committee of Public Accounts which raised the issue of the lack of control of intra-company transferees (“Transferees”). Concerns were raised that as the Transferees are not covered by the immigration cap and there is a lack of exit controls it means that the Transferees may not leave the UK when they should.
A government crackdown in response to the report’s findings is predicted. Employers who hold a tier 2 sponsor licence should ensure that they are familiar with the UK Border Agency’s (“UKBA”) sponsor guidance and the prevention of illegal working guidance.
Employer’s duties as a sponsor begin once they have received a sponsor licence and they have a number of obligations, one of which is the duty to report migrant activity. This includes, for example:
- reporting if the migrant worker does not show up for work on their start date
- reporting if the migrant worker is off work for 10 consecutive days without prior permission
- reporting if the migrant worker’s employment finishes sooner than envisaged on the certificate of sponsorship
- changes to the employee’s immigration status should also be reported. This may happen, for example, as a result of the employee marrying a British citizen.
These should be reported by way of the Sponsor Management System (“SMS”) within 10 working days of the relevant event.
Significant changes to the employee’s migrant worker’s circumstances must also be reported via SMS, for example, a change in the migrant worker’s job title or salary. Also reportable via SMS are changes to the location in which the employee works or where the employer suspects that the migrant worker is breaching any of the conditions of his stay in the UK.
Should an employer fail to meet their obligations under their sponsor licence then the UKBA can take action against the sponsor. The UKBA’s responses to such a breach may include giving a written warning to the employer and informing the employer that they will be kept under close observation to ensuring that they comply with their duties, or it may involve a downgrading of the sponsor’s licence from A to B (which would mean that the employer would be unable to sponsor any new employees). The UKBA can also revoke sponsors’ licences and issue on the spot fines of up to £10,000 per illegal migrant. Employing migrants illegally is punishable by an unlimited fine or up to two years imprisonment.
UKBA crackdown on sponsors in breach of their obligations
Sponsors are advised to ensure that they are familiar with the UKBA’s sponsor guidance and that they are fully compliant with their duties. Any breaches of their obligations as sponsors should be remedied as quickly as possible.
Sponsors should ensure that the UKBA has details of all the locations in which sponsored employees are working. Failure to do this could be a breach of their sponsor duties.
MPs publish report on the Immigration Points Based System
Tiers 2 and 5 of the Points Based System – Sponsor Guidance
For further information or to discuss the issues raised, please contact Guy Abbiss or Stephen Wright on +44 (0) 20 3051 5711.