On 28 October, the Home Office reported a record number of arrests for illegal working, reflecting a 63% increase in arrests and a 51% rise in visits over the past year. This initiative aligns with their objective to restore public confidence in the immigration system, with compliance efforts now also encompassing sponsors.

This strategy is complemented by significant regulatory changes, including raised thresholds for skill, salary, and English language requirements, as well as proposals to expand right to work checks to gig economy and casual workers.

A major element of the Home Office’s intensified enforcement is its stricter interpretation and administration of rules and guidance—a practice which courts have granted considerable discretion. This trend has become evident both through direct engagement with the Home Office on policy matters and discussions with other professionals in the field. Below, we examine these enforcement trends and outline how employers can mitigate associated risks.

Assessing eligibility

The Home Office has honed in on the genuine vacancy requirement for sponsored workers. Examples where there is a risk of sanctions are:

  • when a sponsor raises a worker’s salary so they meet the sponsorship threshold. For instance, if their pay is higher than that of a resident employee with the same experience or more than what was previously offered under the same job code, the Home Office might view this as an indication that the vacancy is not genuine.
  • when a medium-skilled occupation code is removed from sponsorship eligibility, some employers use an alternative code to bypass higher skill or salary requirements, even if the role does not qualify. For example, some reportedly sponsor chefs under code 2129 ‘food technologist,’ despite the position not meeting that code’s criteria.
  • when a CoS is issued for five years but the sponsor may not guarantee employment for the entire period, this is especially concerning in fields like adult social care and construction, where exploitation by employers is frequent.

Changes in circumstances

The Home Office is improving information sharing with other government departments, aiming to enhance enforcement efficiency. Some examples include:

  • review of Companies House records, which indicate that:
    • there has been an unreported change of ownership, necessitating a new Sponsor Licence due to a direct change in majority ownership of the sponsor, or in the case of a Charity, there has been a change of Directors or Members; or
    • a virtual address is being used where there is no trading presence.
  • increased data sharing with HM Revenue & Customs identifies:
    • underpayments to sponsored workers; or
    • illegal working, includes students exceeding permitted work hours during term; sponsored workers exceeding permitted hours in supplementary jobs; and asylum seekers working against their Application Registration Card conditions.

The Home Office may ignore minor oversights, but repeated or serious compliance failures can result in licence suspension or revocation, or a civil penalty for illegal working.

Common compliance pitfalls

Examples of other common issues identified by the Home Office are:

  • not replacing an outgoing Authorising Officer or Level 1 User;
  • failure to report or make a new visa application where there is a promotion or change in the Skilled Worker’s job duties;
  • failure to add to the licence a new site where a sponsored worker is working;
  • failure to identify whether a Skilled Worker can still be sponsored or to report when there are deductions in salary;  
  • passing on costs to the sponsored worker where this is prohibited.

Five Key Recommendations

We recommend that you consider the following:

  1. if a role does not clearly fit within an eligible occupation code, or you are in one of the high risk sectors, consider carefully before increasing the salary or selecting the occupation code or CoS duration. We can review this with you;
  2. in light of increased enforcement efforts, consider reviewing HR processes and records against the right to work and sponsor duty requirements every six months. This should include an assessment of whether training is required;
  3. ensure that line managers check with the Authorising Officer before approving any job or salary changes, including promotions or absences, to avoid breaches of illegal working or reporting requirements;
  4. ensure that those in the organisation who approve changes in ownership or work locations check this with the Authorising Officer in advance;
  5. check that those in the organisation who are responsible for complying with wider UK law, such as UK employment law, are aware of the implications of non compliance on a sponsor licence.

The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please do contact the Bates Wells team if you require further information.