If a migrant has been given permission to enter the United Kingdom based on a certificate of sponsorship issued by you, but has not yet travelled to the United Kingdom, they will be allowed to enter and start working or studying with the sponsor. However, The Home Office advise all migrants to check the status of their sponsor's licence before they travel and they recommend that migrants do not travel to the United Kingdom if their sponsor's licence has been suspended.
During the time The Home Office are making the decision, they will not tell migrants who have been given a certificate of sponsorship by you and are already in the United Kingdom about the suspension.
What happens to migrants if Home Office withdraw your licence
If Home Office withdraw your licence, they will:
-
immediately end the permission to stay in the United Kingdom of any migrants whom they believe were actively involved in any dishonesty by you, for example, if the migrant agreed that you would arrange a non-existent job for them so they could come to the United Kingdom; and
-
reduce the length of the permission to stay in the United Kingdom of any other migrants (those who were not actively involved) to 60 days, to give them a chance to find a new sponsor. If the migrant has less that six months permission to stay left, they will not reduce the length of their permission.
If they immediately end the permission to stay, the migrant will have to leave the United Kingdom or face enforced removal.
If they reduce the length of the migrant's permission to stay, they will also have to leave or face enforced removal if, at the end of the 60 days, they have not found a new sponsor.
They will take action against any migrant who remains in the United Kingdom after their permission to stay here has expired. This may result in migrants being detained and forcibly removed from the country. Any applications they make to come to the United Kingdom within the next 10 years may also be refused.
What happens to migrants who have not yet travelled to the United Kingdom when The Home Office withdraw your licence
When you have your licence withdrawn, any certificate of sponsorship you have issued will automatically become invalid. This means that any application for permission to enter or stay made on the basis of these certificates of sponsorship will automatically be refused.
If the migrant has already been granted permission to enter when they withdraw your licence, the permission to enter will be cancelled (under paragraph 30A (ii) of the immigration rules), if they have not yet travelled to the United Kingdom.
If the migrant has travelled to the United Kingdom, they will be refused entry to the country (under paragraph 321(ii) of the immigration rules).
How Home Office deal with illegal working
The new system of sponsorship transfers to sponsors a significant amount of responsibility for selecting migrants, so Home Office have a duty to ensure that they deal appropriately with the minority who do not comply with their duties.
Home Office have therefore introduced measures to ensure that they enforce your duties, find out early and identify if you are dishonest or incompetent, withdraw your licence and punish you. As well as any enforcement action they may take against you if they find you in breach of your duties, they may also issue a civil penalty if you have broken the rules on illegal working.
The penalties you can face
When migrants work in the United Kingdom without permission to do so, The Home Office take this very seriously and will impose a range of penalties on those who employ people illegally. You must therefore make sure that your migrants who are not settled in United Kingdom are entitled to work for you.
The Home Office’s visiting officers will be fully trained in identifying and investigating illegal working and may issue civil penalties or refer cases for prosecution where appropriate. You must comply with the conditions of your licence and only employ people who are legally allowed to work in the United Kingdom.
The government’s action plan for preventing illegal working sets out a range of penalties. If they find you are in breach of your duties they can visit your premises to help you to comply with the law.
You could face any of the following penalties:
-
written warning for employing an illegal worker, followed by close attention from The Home Office enforcement and compliance teams;
-
being downgraded on the register of sponsors. Your rating will be published, and prospective migrants will be able to see it. A B-rating will involve a detailed action plan of measures that you must comply with;
-
licence cancelled and removed from the register of sponsors, so you are unable to bring any migrant worker to theUnited Kingdom or keep any existing migrant;
-
served with an on-the-spot fine (known legally as a civil penalty) - if Home Office find you are employing an illegal migrant worker because of negligent recruitment practices, Home Office may issue you with a civil penalty for each illegal worker (under section 15 of the Immigration, Asylum and Nationality Act 2006). A sliding scale allows heavier penalties for repeat offenders;
-
prosecuted for having in your possession or under your control without reasonable excuse an identity document that is false or improperly obtained or that belongs to someone else, which may result in you being imprisoned for up to two years and/or receiving an unlimited fine (under section 25 of the Identity Cards Act 2006);
-
prosecuted for knowingly employing an illegal migrant worker - you could be imprisoned for up to two years and/or receive an unlimited fine (under section 21 of the Immigration, Asylum and Nationality Act 2006);
-
disbarred as a company director or officer as a result of prosecution - if you are convicted of knowingly employing an illegal migrant worker, you could be disqualified from forming or managing a company (under section 2 of the Company Directors Disqualification Act 1986); or
-
prosecuted for facilitation or trafficking - you could be imprisoned for up to 14 years and/or receive an unlimited fine (under section 25 of the Immigration Act 1971, as amended by section 4 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004).
If The Home Office finds you knowingly employing illegal migrant workers, you can face tough penalties including an unlimited fine and/or a maximum of two years' imprisonment. (This is under the Immigration, Asylum and Nationality Act 2006.) The Home Office have a system of civil penalties for employers who employ illegal migrant workers because their recruitment and employment practices are negligent, or not careful enough.
You can protect yourself from facing these fines by carrying out specific document checks when recruiting a new member of staff. You should also make further checks on documents at specified intervals when an employee has a time limit on their leave (permission) to enter or remain in the United Kingdom.
If you have breached your sponsorship duties or committed offences under civil penalties legislation and are also regulated by the Gang masters Licensing Authority (GLA), the Office of the Immigration Services Commissioner (OISC) or another government body, they will inform that body so that it can consider appropriate action.
How The Home Office can refuse a licence
The Home Office will refuse an application in any of the following circumstances:
-
if you, or another relevant person, send any false document with your application. If this happens, and they believe that a criminal offence has been committed, they will not hesitate to refer the case for prosecution as well as refusing the application;
-
if you do not meet the specific requirements that apply to the appropriate tier or category that you are applying to register under. If you meet the requirements for some of the tiers or categories, but not others, The Home Office will only licence you for the tiers or categories that you qualify under;
-
if you, or another relevant person, have in the previous six months been issued with a civil penalty under Section 15 of the Immigration, Asylum and Nationality Act 2006 for employing one or more illegal workers, and the fine for at least one of those workers was set at the maximum amount (currently £10,000). They will not refuse the application if The Home Office withdrew or reduced the fine or it was cancelled or reduced on appeal;
-
if you, or another relevant person, have been issued with a civil penalty for one of the offences in Appendix C of the policy guidance and have not paid it (unless The Home Office withdrew the penalty or it was cancelled on appeal); or
-
if you, or another relevant person, are legally prohibited from becoming a company director (unless this is because you are an undercharged bankrupt).
Additionally, The Home Office will refuse an application if you, or another relevant person, have been convicted of one of the offences below, unless it is a spent conviction under the Rehabilitation of Offenders Act 1974.
-
any offence under the Immigration Act 1971; the Immigration Act 1988; the Asylum and Immigration Appeals Act 1993, the Immigration and Asylum Act 1999; the Nationality, Immigration and Asylum Act 2002; the Immigration, Asylum and Nationality Act 2006; or the UK Borders Act 2007;
-
trafficking for sexual exploitation; or
-
any other offence which, in The Home Office’s opinion, indicates that you pose a risk to immigration control, for example, offences involving dishonesty or deception, including any of the offences listed in Appendix B of the full policy guidance of the policy guidance. Any other unspent convictions could also lead to an application being refused.
A conviction may become 'spent' after a specified period of time from the date of conviction if there have been no further convictions during that time. Spent convictions are disregarded for certain purposes.
The Home Office will normally refuse an application if you, or another relevant person, have been dishonest in any of your previous dealings with us (or the former Immigration and Nationality Directorate or Border and Immigration Agency). Examples of dishonesty include, but are not limited to:
-
applying for work permits despite not having, or being in the process of establishing, an operating or trading presence in the United Kingdom;
-
having had work permit applications refused on the grounds that your facilities were not large enough to cope with the increased staff and there were no plans to expand to take account of that increase; and
-
making false statements in any application to The Home Office, including an application for a work permit.
Home Office can grant a licence in exceptional circumstances, such as if a former employee of your organisation was wholly responsible for the dishonesty and was dismissed when it was discovered. However, if Home Office do grant you a licence in exceptional circumstances, they may award a B rating at first.
If The Home Office have reason to believe that you are in serious breach of your duties and pose a major threat to immigration control, for example, because you are allocating certificates of sponsorship to migrants who do not qualify to come to the United Kingdom, The Home Office may suspend your licence as the procedures are being followed.
The Home Office will remove your entry from the online register of sponsors, and you will not be able to issue any certificates of sponsorship while you are suspended, but you must still comply with all the sponsorship duties for the migrants you currently sponsor. If the suspension is lifted The Home Office will reinstate your name on the online register with the rating awarded.
If you are suspended, you are suspended in all the tiers, categories and sub-categories in which you are registered. If The Home Office finds that you have assigned a certificate of sponsorship to a migrant during your suspension, they will take further action against you - and will refuse the migrant's application, on the basis that their certificate of sponsorship is invalid.
Migrants who are already being sponsored at the time of your suspension will not be affected, unless The Home Office’s consideration of the case leads them to withdraw your licence. However, The Home Office will not consider any applications for entry clearance or permission to stay from migrants who have a certificate of sponsorship issued by you, until they have made a decision on your status.
If The Home Office have already given a migrant entry clearance on the basis of a certificate of sponsorship that you assigned before you were suspended, but the migrant has not yet travelled to the United Kingdom, they will be allowed to enter and start working for you. However, all migrants are advised to check the status of their sponsor's licence before they travel, and it is recommend that they do not travel to the United Kingdom if their sponsor's licence has been suspended.
How The Home Office decide what (if any) action to take
The Home Office take all the facts of the case into account when deciding what action to take against you, unless withdrawal of a licence is mandatory. No two cases will be alike, so The Home Office cannot list all the circumstances in which they will withdraw a licence, downgrade it or take no action. They will consider:
-
the seriousness of your actions and the harm done. The Home Office will treat seriously things you have done or failed to do that have resulted in migrants going missing;
-
whether your actions are part of a consistent or sustained record of non-compliance or poor compliance or are a single event;
-
any action you have taken to minimise the consequences of what you have done or failed to do. For example, it may help if you tell The Home Office quickly that migrants you are sponsoring have stopped coming to work or courses. If an individual member of your staff is responsible for the problem, The Home Office will take into account any action you have taken against that person. For example, you should tell The Home Office if you have dismissed the person, moved them to another area of work, or retrained them, as appropriate. However, the Home Office will treat the situation more seriously if they are sure you were involved in the actions of your staff or deliberately ignored what they were doing;
-
any civil penalties you are issued with for an offence listed in Appendix C of the full policy guidance of the policy guidance unless the Home Office withdrew the penalty or it was cancelled on appeal.
The procedure Home Office follow
If a visiting officer makes recommendations to withdraw your licence or downgrade you, they will write to you to tell you what action they are going to take and why. All action recommended by a visiting officer will be carried out by the Sponsor Licensing Unit.
You will have 28 days to respond to The Home Office in writing to their letter. They may extend this period at your request if they are satisfied that there are exceptional circumstances. You can make any written statements you think are necessary to respond, including sending evidence. However, the Home Office will not hold an oral hearing.
The Sponsor Licensing Unit will consider your response and may ask the relevant visiting officer for information. The Home Office will notify you of their decision within 14 calendar days of receiving your response. The reviewing officer has the right to ask for more advice before making the final decision, if your response is complex or The Home Office may need further advice before making a final decision.
If The Home Office does not receive a response from you in the time allowed, the Sponsor Licensing Unit will take the appropriate action recommended by the visiting officer and notify you of its decision in writing.
If The Home Office decides to downgrade or withdraw your licence, it starts from the date of the letter they send you to tell you about their decision. They will send this letter by recorded delivery.
When Home Office are considering action against you that may result in The Home Office withdrawing your licence, you can still issue certificates of sponsorship during the time that responses are being sent or considered. But will not consider applications for permission to enter or stay from any migrants that you have issued certificates of sponsorship to until a final decision is made on your status.
How Home Office withdraw a licence
This page explains why Home Office would withdraw your licence as a sponsor under the points-based system.
If your licence is withdrawn it will be withdrawn from all the tiers, categories and sub-categories that you are registered in.
You will lose your licence if:
-
you stop trading or operating for any reason including insolvency;
-
you stop being accredited or registered with any body that you need to be accredited or registered with to get a licence. For example, Home Office will withdraw an educational institution's licence if it loses its accreditation with the appropriate accrediting body;
-
you, or another relevant person, are issued with a civil penalty for employing one or more illegal workers (under Section 15 of the Immigration, Asylum and Nationality Act 2006), and the fine imposed for at least one of those workers is set at the maximum amount (currently £10,000), unless they withdraw or reduce the penalty or it is cancelled or reduced on appeal;
-
you have been B-rated and have not complied with an action plan for a period of 12 months or more; or
-
you are B-rated and have assigned a certificate of sponsorship saying the job was on the shortage occupation list when it was not.
